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More than 20 years for simple possession is cruel and unusual

In honor of the recent SCOTUS case prohibiting LWOP sentences for juveniles, blogged about at Sentencing Law and Policy here, I thought I would blog about a former client that got Eighth Amendment relief this spring.

In Graham v. State, Judge Hornbaker discharged Mr. Graham from further custody stemming from a couple of Geary County drug prosecutions on several grounds, including the Eighth Amendment. Mr. Graham had a 1986 conviction for second time possession and a 1999 conviction for third time conviction. You can read about Mr. Graham's cases here and here.

With regard to the 1986 conviction, the KSC summed up the procedural history a the probation revocation appeal:

Graham's original convictions of possession of methamphetamine, possession of marijuana, and possession of cocaine were affirmed in State v. Graham, 244 Kan. 194, 768 P.2d 259 (1989). Graham's sentence was later commuted to 15 years to life by Governor Finney. In 1998, as a result of a K.S.A. 60-1507 action which alleged ineffective counsel in allowing an uncounseled Arkansas conviction to be considered in determining Graham's sentence, this court reversed the judgment of sentence and remanded the case for resentencing.

Graham, who had served 10 years of his original sentence, was resentenced for possession of cocaine, a class B felony. The sentence for a class B felony committed in 1989 was a minimum term of 5 to 15 years and a maximum term of 20 years to life.
K.S.A. 21-4501(b) (Ensley). The judge imposed a 15-year to life sentence. After resentencing Graham, the district court suspended imposition of the sentence and placed Graham on 1 year of probation, supervised by court services. Later, the district court, after finding that Graham had violated the terms of his probation, revoked Graham's probation.

Mr. Graham also received a 150-month prison sentence for a 1999 conviction for possession. The COA affirmed that conviction and sentence.

Mr. Graham filed a motion for relief in district court and, on January 13, 2010, the district court entered an order granting relief. The district court found that the DOC erred by failing to honor a previous judge's intent to convert the indeterminate sentence to a grid sentence. Judge Hornbaker also held that more than 20 years in prison for two counts of simple possession was enough:

The court further finds that in order to prevent manifest injustice, defendant having served over 20 years on simple possession charges, should be discharged.

Lastly, the court finds that the sentence of the defendant for the crimes for which his stands convicted constitutes cruel and unusual punishment.

Judge Hornbaker went on to analyze the imposed sentences under the Eighth Amendment factors stated in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978) to determine whether the length of the sentence violated the constitution:

Defendant was convicted of three possession of drug charges. He was not convicted of a violent offense. There are so many more serious crimes including crimes of violence and personal felonies that have lower sentences than this defendant's that this court cannot even begin to list them all. In fact almost every felony and many misdemeanors are more serious than what this defendant was convicted of. . . . [I]n this jurisdiction a twenty year sentence for possession of drugs in not even possible today, no matter how many convictions.

As a result, Judge Hornbaker ordered that Mr. Graham be released from DOC custody, although he is still subject to post-release supervision.

The state indicated its intent to appeal this decision.

Full post as published by Kansas Defenders on May 19, 2010 (boomark / email).