The US supreme court is poised on Friday to decide whether to take on the case of a 76-year-old disabled army veteran handed a sentence of life in prison without parole for growing marijuana in his back yard to alleviate his own health problems.
If the court does not review the case, Lee Carroll Brooker is destined to die behind bars even though judges in his native Alabama have declared this was not an appropriate punishment.
Brooker is arguing that such a hefty sanction for marijuana possession violates the eighth amendment to the US constitution because it amounts to cruel and unusual punishment.
He has been subjected to strict sentencing mandatory minimum laws in Alabama because the cannabis offense involves a certain weight of the drug and comes on top of convictions for armed robbery more than 30 years ago in Florida when Brooker held up a series of liquor stores, his trial lawyer John Steensland said on Wednesday.
Brooker was arrested in 2011 when police visited his address in Cottonwood, southern Alabama, on an unrelated matter and found that he was growing marijuana behind the house.
The police seized 34 plants. They were sent for forensic analysis and weighed in their entirety, including the stalks, which are not used in cannabis consumption.
The plants weighed a total of 2.85 pounds, which placed the haul above the threshold of possessing 2.2 pounds of the drug that, in conjunction with certain prior felony convictions, triggers the use of life without parole as the mandatory sentence under Alabama law.
“The actual usable amount of marijuana from the contraband was a fraction of the 2.85 lbs and clearly under the threshold of 2.2 lbs,” according to court documents filed in Brooker’s case.
“The evidence clearly indicated that Brooker was simply growing said marijuana plans for his own personal use in an effort to self-medicate,” the document added.
But in announcing the state supreme court’s decision, Alabama chief justice Roy Moore issued a lengthy explanation pointing out that the original trial judge, Larry Anderson, had said: “If the court could sentence you to a term that is less than life without parole, I would. However, the law is very specific … there is no discretion.”
And Moore himself added that Brooker’s sentence was “excessive and unjustified” and urged the Alabama legislature to “revisit the statutory sentencing scheme” for the state.
Brooker’s attorney Steensland said: “The judges’ hands were tied.”
Now his former client is taking his case to the US supreme court, and is being represented by Bryan Stevenson, executive director of the Montgomery-based advocacy group Equal Justice Initiative.
Marijuana for medical use is now legal in 23 states and the District of Columbia.
In addition, the Pennsylvania legislature on Wednesday sent a bill legalizing medical marijuana to the state governor to sign.
Last September, Roy Moore, the chief justice of Alabama, said sentencing laws needed to be changed in the state in light of Brooker’s plight, after the state’s supreme court reluctantly refused to overturn an appeal to the man’s sentence.
Moore said there were “grave flaws” in Alabama’s sentencing system when a person could be sentenced to life without parole for a nonviolent drug offense.
Steensland submitted material during his client’s trial and sentencing proceedings that showed he was in the US army for nine years after joining up at the age of 17 and was frequently posted abroad, coming under enemy fire on tours in Lebanon and the Dominican Republic.
He rose to the rank of sergeant in the 82nd airborne division and was awarded the combat infantryman badge for participating in active ground combat, according to court documents.
“It’s a brutal case, egregious. He was using marijuana for his own use for lingering troubles with his personal health, some related to his military service. We had hoped for a more reasonable settlement, but the judges at trial and appeal had their hands tied,” Steensland said.
The attorney said there was no evidence and had been no claims that Brooker had ever tried to sell the drug. He said his crimes in Florida as a much younger man were linked to a time in his life when he drank heavily instead of seeking medical treatment for physical and mental ailments.
“It doesn’t excuse any of this but it puts it in some perspective. He robbed some liquor stores and no-one was hurt, it’s serious but he served time for that. When I represented him I found him to be a nice man,” he said.
Families Against Mandatory Minimums (Famm), a Washington DC-based lobbying and advocacy group, has filed a friend of the court brief with Scotus on Brooker’s behalf.
“It is hard to understand how, in a civilized society, the law can tolerate that a 76-year-old decorated, disabled, combat veteran is sentenced to die in prison for growing marijuana in his backyard for personal use,” the brief states.
Famm’s brief adds that the way mandatory minimum laws shift discretion in sentencing away from the “independent judiciary…can lead to arbitrary, capricious and unfair sentences.”
Mary Price, Famm general counsel, said that if Scotus decided to take Brooker’s case, and ultimately ruled in his favour, it would send a message “far and wide” that mandatory minimum sentences “can be so arbitrary and so inhumane that they offend the US constitution.”