Johnston won the appeal, and the case would be retried. This time Johnston figured he'd try the case in Pettis County rather than have another go in Benton County with Judge Scott. Mittelhauser agreed to the change. But Judge Scott wouldn't let the case go — a rare occurrence, especially when both attorneys involved agree, Johnston explains.

"It really bothered me that the judge would not let go of the case," Johnston says. "He wanted the case because, I think, he wanted a second chance to sentence my guy."

Johnston adds that he tried to get Scott disqualified from the case, but the Western District Court of Appeals denied his request. The trial ended up being a repeat loss. This time the jury deliberated for just 40 minutes before finding Mizanskey guilty of possessing and intending to distribute the five-pound brick.

At the sentencing Johnston asked the judge to be more forgiving this time, arguing under the mistaken belief that his client faced a 30-year "life" sentence with the possibility of parole.

"I think that 30 years in prison for that is not fair and just. I would urge the court to find some lesser or middle ground in a range that's available to the court," Johnston told the judge.

Mittelhauser disagreed and pressed Scott to impose the life sentence.

"I agree that a life sentence is harsh and burdensome," Mittelhauser told the judge, "and I think that's precisely why the legislature has prescribed it as a possible punishment for someone who finds himself situated the way Mr. Mizanskey does with a lengthy criminal history and possession of a large amount of marijuana."

Scott sided with Mittelhauser and again sentenced Mizanskey to life in prison.

Today Mittelhauser remains the top prosecutor in Pettis County, and he has little sympathy for Mizanskey or Johnston and their claim that they didn't realize the sentence was for life without parole.

"That was the gorilla in the room," says Mittelhauser, who notes that Mizanskey could have accepted the 25-year plea deal. "He rolled the dice — and that's his prerogative, to go to trial — but he did, and this is what happened."


Ronald Reagan's War on Drugs was in full swing in 1989 when state senator Harold Caskey, a Democrat from the western Missouri town of Butler, cosponsored Missouri's Prior and Persistent Drug Offender law. In hindsight, though, Caskey isn't so sure that the law is a good one, especially considering Mizanskey's incarceration.

"I can't believe [life sentences for marijuana] was intended," says the 75-year-old former lawmaker who retired from the state senate in 2004. "Looking back at it now, I wouldn't vote for it. You see these states passing marijuana laws, and it indicates that marijuana is not as serious as it once was."

Yet Caskey wasn't alone at the time he sponsored Missouri's three-strike law for drugs. In the crack-cocaine hysteria of the 1980s, politicians across the nation were eager to display their "tough on crime" bona fides.

"There was a sea change in the way that the public and politicians thought about crime in the 1970s and 1980s," says Greg Mermelstein, a division director with the Missouri State Public Defender System. "These prior and persistent laws, by and large, were inventions of that era because there was a public perception — frankly, often wrong — that people were committing heinous crimes and receiving very short sentences. And as a result, there just became this tough-on-crime movement where everyone wanted to enact tougher laws to make sentences longer and longer."

No state agency keeps tabs on how many Missouri inmates have received sentences of life in prison without parole specifically for nonviolent drug offenses. Riverfront Times could find only three Missouri prisoners besides Mizanskey who are currently locked away for life without parole under the Prior and Persistent Drug Offender statute. And all three of those were found guilty of meth charges.

Although life sentences are relatively rare, decades-long sentences for small amounts of drugs are not because the minimum sentence a judge can hand out under the statute is ten years.

"One of the major effects of the laws is that it always increases the punishment," Mermelstein says. "And what happens is that, in individual cases, the punishment doesn't always fit the crime."

Examples include a man from the bootheel who earned a 25-year stint for selling $20 of crack to an undercover cop, and a St. Louis man slapped with a 15-year sentence for selling one rock's worth of crack.

Advocates for reforming Missouri's drug laws also point to the financial price of imprisoning nonviolent offenders. The annual cost to feed and house a Missouri inmate is about $22,000. Keeping Mizanskey locked up has already cost Missouri taxpayers more than $400,000. And they'll likely be on the hook for a few hundred thousand dollars more to incarcerate him until his death.

But to the man who prosecuted Mizanskey, the sentence remains just.

"I do not think the sentence is excessive," says Mittelhauser, who still remembers Mizanskey's case, even if he's a bit fuzzy on the details.

"Considering his numerous prior convictions involving the distribution of controlled substances and considering that he had a connection to, if not Mexico, at least the Southwest United States to bring in 100 pounds a week of marijuana to distribute, yes, I believe his sentence was a fair one."

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