Three Strikes: Federal Court Upholds Life without Parole Sentence for Drug Dealer

By Joe Forward, Legal Writer, State Bar of Wisconsin

Nov. 2, 2012 – A federal “three strikes” law creates a mandatory life without parole sentence for convicted drug manufacturers and dealers with two or more prior convictions for a felony drug offense. Recently, a federal appeals court ruled the sentence is not cruel and unusual.

A federal district court in Illinois sentenced Anthony Ousley to life in prison for possessing 50 or more grams of crack cocaine with intent to distribute, a violation of 21 U.S.C. § 841(b)(1)(A). (Congress raised the amount to 280 grams in 2010, after Ousley committed the offense).

The provision carries a mandatory life sentence if the offender already has two or more prior felony drug convictions. Ousley had five prior convictions, and he’s not eligible for parole.

On appeal, Ousley argued the life sentence violates the Eighth Amendment to the U.S. Constitution, which prohibits the government from inflicting cruel and unusual punishment.

But in U.S. v. Ousley, No. 11-2760 (Oct. 22, 2012), the U.S. Court of Appeals for the Seventh Circuit upheld the sentence as constitutional, recognizing that the U.S. Supreme Court has rejected challenges to mandatory life sentences for so-called “three strikes” laws.

In addition, the panel noted that the U.S. Supreme Court has held that mandatory life sentences for drug offenses are not cruel and unusual, and rejected the argument that there exists a national consensus against crack and cocaine sentencing disparities.

Under 21 U.S.C. § 841(b)(1)(A), it takes five kilograms of powder cocaine to trigger a violation as opposed to 280 grams (previously 50 grams) of crack cocaine. Thus, Ousley argued for a categorical prohibition on mandatory life sentences against previous drug felons convicted for manufacturing or distributing less than five kilograms of crack cocaine.

“Ousley urges us to embrace this categorical rule based on the purported national consensus against crack and powder cocaine sentencing disparities,” wrote Judge Daniel Manion. “Congress has addressed any national consensus issue in the Fair Sentencing Act.”

Congress, the panel explained, set the triggering amount of crack cocaine at 280 grams (previously 50 grams), “which for now represents the consensus of the citizenry.”

The panel noted that a jury, by way of special verdict, found that Ousley possessed 579 grams, well over the new triggering minimum of 280 grams under 21 U.S.C. § 841(b)(1)(A).