Immigration Lawyers New York



Proportionality

Can the legislature set any penalty it wants for a drug crime or is its severity capped by the Eighth Amendment's prohibition of excessive punishments? Should the law enforcement employ the same methods in trying to catch a murder suspect as in apprehending a marijuana smoker?

The excerpts from opinions written by our top judges are illustrative in making out the courts' approach to these issues.

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...[T]he gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose.

[...]

California v. Hodari D. (1991)
The Honorable Justice Stevens, with whom Justice Marshall joins, dissenting:
...[O]nce it is recognized that the Fourth Amendment protects people -- and not simply 'areas' -- against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.

[...]

California v. Hodari D. (1991)
The Honorable Justice Stevens, with whom Justice Marshall joins, dissenting:
"The danger in the logic which proceeds upon distinctions between a 'stop' and an 'arrest,' or 'seizure' of the person, and between a 'frisk' and a 'search' is twofold. It seeks to isolate from constitutional scrutiny the initial stages of the contact between the policeman and the citizen. And by suggesting a rigid all-or-nothing model of justification and regulation under the Amendment, it obscures the utility of limitations upon the scope, as well as the initiation, of police action as a means of constitutional regulation." Terry v. Ohio, 392 U.S., at 17.

[...]

[Petitioners] argue that including the weight of the carrier leads to anomalous results, viz: a major wholesaler caught with 19,999 doses of pure LSD would not be subject to the 5-year mandatory minimum sentence, while a minor pusher with 200 doses on blotter paper, or even one dose on a sugar cube, would be subject to the mandatory minimum sentence.

[...]

The current penalties for LSD distribution originated in the Anti-Drug Abuse Act of 1986, Pub. L. 99-570, 100 Stat. 3207. Congress adopted a "market-oriented" approach to punishing drug trafficking, under which the total quantity of what is distributed, rather than the amount of pure drug involved, is used to determine the length of the sentence. [...] It intended the penalties for drug trafficking to be graduated according to the weight of the drugs in whatever form they were found -- cut or uncut, pure or impure, ready for wholesale or ready for distribution at the retail level. Congress did not want to punish retail traffickers less severely, even though they deal in smaller quantities of the pure drug, because such traffickers keep the street markets going. H. R. Rep. No. 99-845, (supra) , at pt. 1, p. 12.

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