Drug Dealer's Life Sentence Called 'Cruel' : Law: Attorneys will try to persuade a U.S. appeals court that keeping a 23-year-old small-time offender locked up for good does not fit his crime.

TIMES STAFF WRITER

The attorneys for a small-time, 23-year-old South-Central Los Angeles drug dealer will invoke one of the most basic precepts of American law today by trying to persuade a federal appeals court that it would be "cruel and unusual punishment" to keep him in prison for the rest of his life.

They are appealing the December, 1989, decision of a Los Angeles federal judge to sentence Richard V. Winrow to life without possibility of parole under a statute designed to impose harsh penalties on repeat violators of drug dealing laws.

Winrow had been caught at his mother's house with 5.5 ounces of crack cocaine, a scale used to weigh drugs, a loaded .357 magnum and $3,209 in cash, leading to his fourth felony narcotics conviction--possession with intent to distribute cocaine.

Winrow's actions broke no new ground in the annals of crime. But his sentence displayed new vistas on the question of punishment, catapulting him into the same domain as drug kingpins who had sold vastly greater quantities of cocaine.

The thrust of Winrow's appeal is that a sentence of life without parole is so grossly disproportionate to his crime that it constitutes cruel and unusual punishment, a contention vigorously contested by federal prosecutors.

His lawyers are facing an uphill struggle.

Although the Eighth Amendment's ban on "cruel and unusual punishment" has been in effect for 200 years, the authors of the Bill of Rights did not specify what it meant and some legal scholars say the prohibition has been used by the Supreme Court less frequently and in a narrower fashion than other amendments designed to protect individual rights.

For example, in one instance only a decade ago, the high court declined to overturn a life sentence imposed on a Texas man, William Rummel, who had been convicted of three non-violent thefts totaling $229.11.

Only once, in 1983, has the Supreme Court held that a prison term was unconstitutional solely because of its length.

"This is an area where the justices aren't very comfortable--enlarging the rights of persons convicted of crime," said Joshua Dressler, a law professor at Wayne State University in Detroit and an Eighth Amendment specialist.

Last June, the high court, by a 5-4 margin, upheld a Michigan law that mandated a life term without parole for anyone possessing 650 grams of cocaine (1.4 pounds)--even first offenders such as Ronald Harmelin, who was challenging the law.

Justice Antonin Scalia, in one of the court's two plurality opinions, said that essentially any prison sentence is constitutional and made a point of saying that for a sentence to be overturned it had to be both cruel and unusual.

"Severe mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our nation's history," Scalia wrote.

He noted, for example, that the Supreme Court had, in 1912, rejected the claim of a West Virginia man that life imprisonment for a third offense of horse theft was "cruel and unusual."

The other plurality opinion, written by Justice Anthony M. Kennedy, did not go as far, but said it was not constitutionally required that the punishment fit the crime.

The Eighth Amendment "forbids only extreme sentences that are 'grossly disproportionate' to the crime," Kennedy wrote.

UCLA law professor Peter Arenella said the ruling seriously eroded the strength of the Eighth Amendment, in general, and, in particular, the 1983 Supreme Court ruling that said sentences should be proportional to the gravity of a crime.

"After the Harmelin decision, it is hard to imagine a realistic situation in which the Eighth Amendment could be used to invalidate a sentencing judgment by a legislature, other than a death penalty," Arenella said.

Steven Shapiro, associate legal director of the American Civil Liberties Union, said the Supreme Court has "taken the teeth" out of the cruel and unusual punishment provision.

But Michael J. Modelski, an Oakland County, Mich., prosecutor who wrote the brief urging that the sentence be sustained, said Michigan officials were "gratified" by the ruling.

He said that 130 persons are now serving life terms in Michigan after convictions on this statute. Enacted in 1978, the Michigan law is the toughest in the nation.

Ten years later, Congress enacted the Anti-Drug Abuse Amendments Act of 1988. The law sets sentences of life without parole for people convicted for the third time of possessing 50 grams of crack cocaine or similar amounts of other drugs.

Winrow was arrested with 151.9 grams of crack just a few months after the law went into effect and the U.S. Attorney's office announced immediately that it would use the recidivist statute against him.

He was convicted after a brief trial in August, 1989. At a dramatic hearing five months later, U.S. District Judge David W. Williams imposed the life term on Winrow, after delivering a stern sermon about the devastation that drug dealers had brought to the Southeast Los Angeles neighborhood where Winrow was arrested and Williams had grown up years earlier.

"I know the neighborhood and I know the way that it has changed from early days to what it is now, and that is a battleground where men like this . . . are killing people off with their drugs and their violence," Williams said.

Winrow, now incarcerated at a federal prison in Arizona, is appealing both his conviction and his sentence.

As to the sentence, Winrow's lawyers, David Chesnoff and Oscar Goodman, are invoking a provision of the Constitution adopted in 1791 stating, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

The Eighth Amendment was rarely used for more than 100 hundred years after the Bill of Rights was enacted, according to Dressler.

Then, in 1910, in the landmark case of Weems vs. U.S., the Supreme Court said the Eighth Amendment had been violated when a man convicted of one count of falsifying public records was assessed a heavy fine and sentenced to 15 years at hard labor.

That decision hardly opened the floodgates. Numerous Eighth Amendment challenges to sentences were spurned by various courts during the next five decades.

However, in 1958, in a decision that said "the basic concept underlying the Eighth Amendment is nothing less than the dignity of man," the Supreme Court overturned a military court's decision to take away the citizenship of a man who had been convicted of desertion during the Korean War.

Four years later, the Supreme Court used the Eighth Amendment to invalidate a state law for the first time when the court ruled that imposing prison sentences on persons who were merely drug addicts constituted cruel and unusual punishment.

In the 1960s and 1970s, the amendment was also used by some federal judges to curb harsh treatment of prison inmates.

The most sweeping use came in 1972 when the Supreme Court effectively invalidated all the death penalty statutes then in existence on the grounds that they offered defendants inadequate procedural safeguards. Subsequently, most states rewrote their death penalty laws and the Supreme Court has upheld many of those statutes.

The high court also has said several times that death sentences are qualitatively different from any other punishment because of their finality. This point has frequently been cited by prosecutors when responding to challenges of life sentences.

The primary case that Winrow's attorneys are relying upon is a 1983 decision involving South Dakotan Jerry Helm, who had been convicted of passing a bad $100 check. It was his seventh felony conviction and he received the most severe punishment--life without possibility of parole--that South Dakota could impose for any crime.

The decision overturning the sentence stated that henceforth specific criteria were to be used to assess the merits of a challenged sentence, including the severity of the crime, how the sentence compared to those imposed by the same state for comparable crimes and how the sentence compared to those imposed by other states for the same crime.

Last June though, the tide turned when the high court narrowly upheld Michigan's mandatory life sentence law.

Justice Kennedy's plurality opinion said that once a crime--for example, drug possession--was determined to be serious there was no need to make the other comparisons.

In his dissent in the case, Justice Byron R. White said that drugs were "a serious societal problem." But he stressed that such a harsh mandatory penalty should be applied only to crimes that "always" warrant the punishment.

"To be constitutionally proportionate, punishment must be tailored to a defendant's personal responsibility and moral guilt," White wrote.

Along the same line, Winrow's lawyers contend in their brief that sentencing must be individualized. They assert that his appeal should not automatically be rejected because of the Harmelin decision and that his sentence is disproportionately severe because it is much greater than he would have received in a California state court for the same crime and longer than that meted out for "more egregious" federal crimes.

But Assistant U.S. Atty. Lisa B. Lench, who prosecuted Winrow, disagreed in all respects.

Her brief asserts that the Harmelin decision "controls the outcome" of Winrow's case and requires that his life sentence be affirmed. The Supreme Court's latest ruling, she wrote, is that legislatures "have the power to mandate any sentence short of the death penalty without offending constitutional protections."

Winrow was the second person in the nation and the first in California to be sentenced under the repeat offender law. There now have been 42 individuals sentenced under the law, according to the Federal Sentencing Commission. In the only completed appeal of one of those sentences, a federal appeals court in St. Louis upheld the constitutionality of the law.

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