IN THE SUPREME COURT OF THE UNITED STATES
The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. Some cases hold that in non-capital cases, the Eighth Amendment encompasses, at most, “only a narrow proportionality principle.” United States v. Brant, 62 F.3d 367, 368 (11th Cir. 1995) (relying on Harmelin v. Michigan, 111 S.Ct. 2680 (1991)). A reviewing court must make a threshold determination that the sentence imposed is grossly disproportionate to the offense committed. Id. If it is grossly disproportionate, the court must then consider sentences imposed on other persons convicted in the same jurisdiction and sentences imposed for the commission of the same crime in other jurisdictions. Id.
In Harmelin, the Supreme Court concluded that “[s]evere, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation’s history.” See Harmelin, 111 S.Ct. at 2701-02 (life sentence based on state law not “cruel and unusual” just because it was mandatory). Following this reasoning, the Eleventh Circuit has rejected the argument that the provisions for mandatory life sentences under cases involving 21 U.S.C. § 841 violate the Eighth Amendment. See United States v. Willis, 956 F.2d 248,251 (11th Cir. 1992). The Supreme Court recently has similarly denied Eighth Amendment challenges to sentences of 25 years’ to life imprisonment imposed on defendants with prior convictions who committed theft offenses, concluding that the impact of recidivism was an adequate reason to impose the sentences. See Ewing v. California, 123 S.Ct. 1179, 1189-90 (2003); Lockyer v. Andrade, 123 S.Ct. 1166, 1175 (2003).
In Lockyer, an appeal from the Ninth Circuit’s grant of habeas relief under 28 U.S.C. § 2254, the Supreme Court concluded that, although the Supreme Court’s precedents in non-capital challenges to sentences under the Eighth Amendment have not been “a model of clarity,” that a gross disproportionality principle is applicable to sentences for terms of years is a “clearly established” principle and that the gross proportionality principle “reserves a constitutional violation for only the extraordinary case.” See Lockyer, 123 S.Ct. at 1173-75.
Mr. [Drug War Victim] argues that, unlike cases involving violence or theft as in Ewing and Locker, [Drug War Victim]’s case involves no theft or violence, and involved consensual conduct between adults in the privacy of his home, and therefore his case fulfills the gross proportionality principle that “reserves a constitutional violation for only the extraordinary case” under Lockyer. [Drug War Victim] has been crucified.
[Drug War Victim]’s argument is further bolstered by Lawrence v. Texas, supra, and it’s recognition of special constitutional rights involving non-violent private acts between consenting adults, and evolving standards of decency. It is indecent for the government to initiate violence against a non-violent man via a minimum mandatory sentence of life imprisonment.
[Drug War Victim]’s sentence is unusual because mandatory minimums are unusual, especially life sentences for non-violent people, and they are also unusual because they unconstitutionally deprive and limit the power of the judiciary in sentencing, the separation of powers, especially where it imposes a mandatory life sentence (as here). The mandatory minimum is much more unconstitutionally “unusual” for the federal courts than for state courts, and especially where the federal government continues to make new (and unconstitutional) forays into every “crime” in the country in addition to education, healthcare, social security, medicinal drug uses, national pledges written and edited by Congress, etc., in short: authoritarian socialism that was never allowed by the Constitution.
The mandatory minimum of life imprisonment deprives sentencing judges of their discretionary role afforded to the judiciary under the Constitution. Prosecutors are allowed to determine sentences, which means they take on judicial powers that rightfully rest with the court.
Lawrence v. Texas: Defendant was sentenced on September 20, 2002, and thereafter, on June 26, 2003, the decision issued in Lawrence v. Texas, 2003 U.S. LEXIS 5013,*;123 S. Ct. 2472; 156 L. Ed. 2d 508;71 U.S.L.W. 4574 (2003);
The sentence of violent imprisonment and the denial of the defendant’s motion for downward departure are unconstitutional under Lawrence. The motions regarding the constitutionality of the charges, jurisdiction, and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) etc., are also enhanced and relevant in light of the Lawrence decision.
The Defendant’s so-called criminal behavior was non-violent private behavior among consenting adults.
Each person has the right to do as he wishes so long as he doesn’t use violence or theft against others. Each person has the right to defend himself against violence and theft. The purpose of government is to protect people and their property from violence and theft --to do what people have the right to do themselves in self-defense. When the government strays from its proper purpose it becomes the violent violator of rights, the perpetrator of violence and theft. And that is what the government did in this case to the defendant.
Government at all levels is slowly beginning to understand fundamental concepts of liberty, albeit in very limited ways. On July 4, 2003, Superior Court Judge Richard Savell of Fairbanks Alaska dismissed Scott A. Thomas' marijuana conviction, ruling that the Alaska Constitution guarantees the right to possess marijuana for personal use in the home.
Next, there is the following opening paragraph in Lawrence from Justice Kennedy’s majority opinion: “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct.” (Lawrence, http://www.supremecourtus.gov/opinions/02pdf/02-102.pdf page 1).
As Scott McPherson said in a column at the “Future of Freedom Foundation” http://www.fff.org/comment/com0307k.asp “An improvement could certainly be made, specifically by adding “or anything else that does not violate the rights of another person” at the end, but to say the least, it ain’t a bad start. And note Justice Kennedy’s reference to the American tradition of government, which places the individual on a plane above the state and limits government’s domain over individual preferences. Many of McPherson’s comments are repeated herein.The Lawrence opinion continued, “It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons.” (page 6) and “The State cannot demean their existence or control their destiny by making their private ... conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. ‘It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.’ [the word “sexual” removed for emphasis] (at page 18).