An opinion signed by three appellate judges, all of whom were appointed by Republican presidents, criticized a federal trial judge for returning a man to prison because of his marijuana use. As Judge Richard Posner’s opinion for the United States Court of Appeals for the Seventh Circuit noted, there was no indication that the man “deals, or has ever dealt, in marijuana or any illegal drug.” His previous employers said that they were “impressed by his work ethic and would be glad to hire him back after he was released from prison.” Nevertheless, federal district Judge Sara Darrow sentenced him to 15 months in prison for marijuana use and for “violat[ing] rules of the halfway house where he lived for a time after completion of his prison sentence.”
Judge Posner responded to this sentence with a blunt critique: “we have our doubts that imprisonment is an appropriate treatment for a marijuana habit.”
The facts of this case are tragic, and Posner responds to them with a somewhat unusual opinion. The defendant, Jesse Smith, grew up in a broken home. His father was imprisoned for murder, and his mother used crack cocaine. By age 18, he had a criminal record that included burglary and fighting with cops. Not long thereafter, he was sentenced to two years in prison for being a felon in possession of a firearm.
Yet, as Posner’s opinion notes, Smith’s “criminal career, except for continued use of marijuana, ended five years ago.” During the time Smith spent out of prison, he worked for a living and earned solid reviews from his employers. Smith “had a bank account and actually paid his bills.” He also has three children.
Nevertheless, Smith has spent much of the last several years in and out of prison, largely due to his propensity to violate the terms of his supervised release by smoking marijuana. He’s been returned to prison or sentenced to home confinement for marijuana use, for a series of traffic violations that were likely related to marijuana use, and for failing to submit to random drug tests or attend substance abuse treatment.
The ultimate question facing Posner and his fellow judges was whether Judge Darrow exceeded her discretion as a sentencing judge when she returned Smith to prison for another 15 months. Despite the fact that Posner’s opinion leaves little doubt that he and the two judges on the panel would have imposed a much more lenient sentence if it were up to them, federal trial judges have tremendous discretion to impose the sentences they deem fit. As the Supreme Court explained in Gall v. United States, “courts of appeals must review all sentences . . . under a deferential abuse-of-discretion standard.” Thus, the language in Posner’s opinion suggesting that prison is an inappropriate punishment for marijuana use may prove nothing more than hortatory.
Nevertheless, there are two reasons why his opinion could prove significant. The first is that, although the Seventh Circuit panel concluded that Judge Darrow did not abuse her discretion by handing down a lengthy sentence for a fairly minor offense, it did uncover a document suggesting that Darrow had prosecuted Smith in a related case prior to her elevation to the bench in 2011. For this reason, Posner’s opinion closes with a request for additional briefing to determine whether Darrow was required to recuse herself from sentencing him.
The second reason Posner’s opinion may prove significant is that the panel of judges who signed onto it represent a fairly inclusive cross-section of the judiciary. Posner is himself a Reagan appointee who was once considered a conservative, but he is a highly idiosyncratic judge who said two years ago that he has “become less conservative since the Republican Party started becoming goofy.” Judge Ilana Rovner is a George H.W. Bush appointee, although she often votes with her court’s more liberal members. Meanwhile, Judge Daniel Tinder is a conservative Bush-appointee who recently joined an opinion reinstating Wisconsin’s voter ID law (the same law was later halted by the Supreme Court).
So if this panel agrees that imprisonment is not the correct punishment for marijuana offenders, it is likely that many other judges hold the same view.