Pubdate: Tue, 10 Jul 2001
Source: Arkansas Democrat-Gazette (AR)
Copyright: 2001 Arkansas Democrat-Gazette, Inc.
Author: Linda Satter


In a rare move, a federal appellate court declared Monday that an 
Arkansas man's life sentence for selling a small amount of crack 
cocaine constituted cruel and unusual punishment in violation of the 
Eighth Amendment to the U.S. Constitution. "It is unusual for any 
court to find that a sentence violates the Eighth Amendment," said 
attorney J. Thomas Sullivan of Little Rock, a professor of criminal 
law at the University of Arkansas at Little Rock's William H. Bowen 
School of Law. Sullivan represented Grover Henderson before the 8th 
U.S. Circuit Court of Appeals at St. Louis. In an opinion written by 
U.S. Circuit Judge Morris Arnold of Little Rock, a three-judge panel 
of the appellate court reversed U.S. District Judge James M. Moody's 
decision last year to dismiss Henderson's 1996 petition for habeas 

The petition sought relief from a life sentence imposed in Lafayette 
County Circuit Court after a jury convicted Henderson on Aug. 30, 
1994, of delivery of cocaine. Henderson had no criminal record when 
he sold an informant three rocks of crack cocaine for $20 in 1993. 
The rocks weighed less than a hundredth of an ounce, "an 
extraordinarily small" amount of drugs, the appellate opinion noted. 
It said those and other facts the Lafayette County jury heard 
indicated that the sentence was not proportional to the crime.

For example, Arnold wrote, it wasn't Henderson who initiated the drug 
buy, and there was no indication at trial that he engaged in violence 
or had any weapons, which could be considered "trappings" of the drug 
trade. "The sentence given to Mr. Henderson, life imprisonment, is 
the harshest sentence given in Arkansas for all but two crimes, 
capital murder and treason," noted the opinion in which Arnold was 
joined by Chief U.S. Circuit Judge Roger Wollman of Sioux Falls, 
S.D., and U.S. Circuit Judge Myron H. Bright of Fargo, N.D. The 
opinion noted that even state sentencing guidelines, which recommend 
specific sentences in an effort at statewide sentencing uniformity, 
called for Henderson to receive just 31/2 years in prison.

The guidelines apply to state crimes committed on or after Jan. 1, 
1994. Under state statutes applying to crimes committed in or before 
1993, the year of Henderson's crime, a cocaine delivery conviction 
requires a minimum 10 years in prison. If federal sentencing 
guidelines had applied, Henderson would have received just 10-16 
months for the same offense. "The penalty imposed in this particular 
case is grossly disproportionate to the crime," Arnold said in the 
appellate opinion, adding that "we do not reach this conclusion 

Only after careful consideration do we finally hold that this is one 
of those rare cases in which the sentence imposed is so harsh in 
comparison to the crime for which it was imposed that it is 
unconstitutional." The appellate court opinion compared facts in 
Henderson's case to a 1991 U.S. Supreme Court decision, Harmelin v. 
Michigan. The Harmelin case was the nation's highest court's most 
recent look at whether a sentence in a noncapital case was so severe 
that it violated the Eighth Amendment. In that case, a divided court 
ultimately decided that a life sentence for a first offender who 
possessed 23.5 ounces of pure cocaine wasn't cruel and unusual.

Justice Anthony Kennedy noted that the amount of cocaine involved 
"had a potential yield of between 32,500 and 65,000 doses," and that 
the Michigan Legislature could have reasonably decided that the 
amount warranted a mandatory life sentence. Kennedy referred to "the 
threat posed to the individual and society by possession of this 
large an amount of cocaine." But Arnold noted that the Harmelin case 
involved an amount of drugs that weighed about 2,825 times more than 
those sold by Henderson. After detailing the intricacies of Arkansas 
law -- specifically, that anyone sentenced to life in prison cannot 
become eligible for parole unless the governor commutes his sentence 
to a term of years -- Arnold declared that "Mr. Henderson's sentence 
is grossly disproportionate to his crime." In looking at whether that 
lack of proportion violated the Eighth Amendment, Arnold cited 
discussion at the Arkansas Supreme Court, where Henderson first 
appealed his conviction. "This was a close case in the Arkansas 
Supreme Court," Sullivan noted. Though the Arkansas justices upheld 
Henderson's conviction, three of the seven joined in a dissent.

It said in part that the sentence "was so wholly disproportionate to 
the nature of the offense as to shock the moral sense of the 
community." Once Henderson's case reached federal court, the state 
provided the names of two other people who had been sentenced to life 
terms in Arkansas for a first offense involving a minimal amount of 
drugs, but one of those convictions was overturned and the other case 
involved incomplete information, the appellate opinion noted. "In any 
event," Arnold wrote, "the evidence indicates that Mr. Henderson's 
sentence as a first offender for delivery of less than one-quarter of 
a gram of crack is highly unusual and perhaps unique in Arkansas." 
The ruling also said "we have located only three other states that 
permit a life sentence for a first offense involving the delivery of 
the amount of crack cocaine that Mr. Henderson sold, namely, Idaho, 
Montana and Oklahoma. ... Many other states, in contrast, provide for 
a much lower maximum term for such an offense." Brent Haltom, 
prosecuting attorney for the judicial district in which Henderson was 
convicted, couldn't be reached for comment Monday afternoon; neither 
could attorney John M. Pickett of Texarkana, who represented 
Henderson at trial.

Pickett was in another jury trial Monday. Sullivan said the Arkansas 
attorney general's office will now have to decide whether to invoke 
the state's option of having Henderson resentenced. If it doesn't 
order a resentencing hearing, Henderson will simply be released from 
prison, after having served seven years, by order of the federal 
appellate court. Officials with the attorney general's office 
couldn't be reached for comment after regular business hours Monday. 
In the 8th Circuit ruling, the judges "are saying his current 
sentence is unconstitutional so it can't be enforced," Sullivan said. 
But the appellate court can't direct a state court to take any 
particular action regarding a new sentence. In remanding the case to 
U.S. District Court, the 8th Circuit judges directed that Moody enter 
an order granting Henderson's writ of habeus corpus, and thus setting 
him free, if Henderson hasn't been resentenced by the state within 90 
days of a final mandate being issued.

The mandate would come after a period of time has lapsed in which the 
attorney general's office could request a rehearing or appeal the 
Monday decision.
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