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September 28, 2012

Second Circuit reiterates that mandatory minimum statutes trump parsimony instruction of 3553(a)

The Second Circuit has a brief sentencing opinion this morning in US v. Carter, No. 11-3605 (2d Cir. Sept. 28, 2012) (available here), which would have been huge news had it come out the other way. As resolved, the decision still seemed blog-worthy and here is how it begins:

This case reminds us of the tension in federal criminal law between two competing but overlapping systems for imposing a sentence.  In most cases, a sentencing court computes the relevant range under the U.S. Sentencing Guidelines, now advisory under the teaching of United States v. Booker, 543 U.S. 220 (2005), before making its own determination of an appropriate punishment after considering the general sentencing factors in § 3553(a), including the “parsimony” provision that a sentence must not be “greater than necessary” to serve appropriate sentencing objectives. 18 U.S.C. § 3553(a).  For certain criminal offenses, however, Congress has created a “mandatory minimum” term of imprisonment — a blunt directive that may require judges to give sentences that they consider unduly punitive.  See Dorsey v. United States, 132 S. Ct. 2321, 2326–29 (2012) (describing the development of and relationship between these two sentencing regimes).

The question presented in this appeal is whether a statutory mandatory minimum provision binds a federal sentencing court when the relevant statute does not specify that it overrides the “parsimony” provision in § 3553(a).  For the reasons stated below, we hold that a statutory mandatory minimum binds a sentencing court by explicitly providing a sentencing floor.  The relevant statute need not specify that it overrides the “parsimony” provision or other general sentencing considerations in § 3553(a).  Therefore, we affirm the judgment of the District Court.

September 28, 2012 at 12:14 PM | Permalink


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Looks like they forgot the rule of lenity.

Posted by: NickS | Sep 28, 2012 12:37:50 PM

Categorical determination of punishment by Congress prior to any individualized evaluation by a sentencing judge cannot be fair, as punishment must "fit the offender and not merely the crime.” Cf., Pepper v. United States, 131 S.Ct. 1229, 1240 (2011). Because mandatory minimum statutes are categorical by definition such punishment is constitutional only if: (1) the sentencing judge first conducts an individualized weighing of the case's facts and offender characteristics; and (2) based on that individualized weighing the sentencing court retains the power to sentence below the mandatory minimum if necessary to comply with the mandates of fundamental fairness and due process. This ensures that the mandatory punishment, as applied, complies with the parsimony requirements of fundamental fairness and due process to impose a sentence no greater than necessary to achieve the just goals of sentencing in our culture. Federal courts are without power to impose sentences greater than necessary. No such power has been granted to the federal government.

See also, Due Process in Sentencing, http://www.timpolishan.com/due-process-in-sentencing/

Posted by: Defense attorney Timothy P. Polishan | Sep 28, 2012 5:10:58 PM

To paraphrase a Weekend Update routine, Really? REALLYY!!!!????????? You believe that the legislature does NOT have the power to set a mandatory sentence for a specific offense(s)? I'd love to see your authority - and by that I mean actual caselaw, not a far-fetched theory based on out of context snippets from Court of Appeals decisions. And to the extent that the parsimony principle codified in 18 USC 3553 adds to your "argument", what is to keep Congress from repealing it? (Not to mention the fact that Congress has enacted any number of mandatory minimums since the enactment of 3553 with full knowledge of its existence). Would THAT violate "fundamental fairness and due process" as well? You are certainly free to espouse any policy (or political) argument/theory you want, but to state that mandatory minimums are unconstitutional is laughable!

Posted by: anon | Oct 1, 2012 1:04:31 AM

Obviously there is no existing authority for this propositional theory/argument. Just brainstorming; not suggesting a statement of existing law. To actually use this argument would require extension, modification and reversal of numerous materials bits of existing law.

But, in answer to your question, if existing law did become consonant with some thesis like this, then, yes, any sentencing scheme inconsistent with the parsimony protections required by due process would be unconstitutional--

the idea would be that a parsimony provision like that of 3553 merely codifies the requirements of due process, and, procedural and substantive parsimony protections would need to occur in connection with all sentencing proceedings (even when the applicable sentencing statutes/rules of procedure failed to provide them).

The premise is not, as you re-capped, that the "the legislature does NOT have the power to set a mandatory sentence for a specific offense."

Rather, if something like this were law, Congress/legislatures would still have the power to set mandatory minimums;
the only difference would be that (in sentencing proceedings where mandatory minimums were appliable), this hypothetical due process tenet would require a court, before imposing the mandatory minimum punishment, to conduct an individualized weighing of the case's facts and offender characteristics, expressly for the purpose of determining whether the court needs to impose a sentence below the mandatory minimum (to comply with the parsimony mandates of fundamental fairness and due process).

Posted by: Defense attorney Timothy P. Polishan | Oct 1, 2012 12:51:52 PM

Mr. Polishan --

"...the idea would be that a parsimony provision like that of 3553 merely codifies the requirements of due process..."

But neither the parsimony provision nor any other substantive sentencing provision has anything to do with process. In addition, your idea would sub silentio nullify every mandatory minimum statute out there. Such statutes would become, not mandatory at all, but optional, depending on the judge's assessment in the individual case.

At bottom, you are saying that MM's are unconstitutional per se, because they do not require (indeed they forbid) a court's ad hoc assessment of what the rock-bottom minimum for crime X should be. But, as anon correctly argues, no case so holds, nor is there even a line of thinking to be found in them that would support such an argument.

To adopt your view would require us to believe that the legislture can never a priori designate a minimum sentence, no matter how low, for a given crime, no matter how dreadful. Such a theory would deprive the elected branches of an authority they have enjoyed under the Constitution since the Constitution was ratified.

Posted by: Bill Otis | Oct 2, 2012 8:49:02 AM

Thanks for your reply, Bill (and, I'll drop this after this post).

Of course there is no existing case or line of cases going in this direction, and, your concerns are crucial (eg., de facto nullification, apparently rendering statutes "optional," and the semblance of an improper per se unconstitutionality rule regarding mandatory minimus, etc.).

But, perhaps, better balance can be achieved:

a balance between

the long-standing traditional authority of law makers to pursue societal goals/policies by creating MM penalties


the Constitution's flexibility and capacity for growth and adaptation to achieve justice/fairness in each given case (as made for an undefined and expanding future, as new and various experiences of our culture/system inform new and better jurisprudence).

Cf., McGautha v. California, 402 U.S. 183, 243-244(1971)(DOUGLAS dissent, with whom BRENNAN and MARSHALL concur).

Achieving this balance implicates procedural and substantive due process as well as concerns regarding the respective roles of the legislature and the judiciary.

Here are some distinguishable, out-of-context, not-directly-related-or-on-point, seed-for-thought-only excerpts from McGautha v. California,(DOUGLAS dissent, with whom BRENNAN and MARSHALL concur), presented to spark other more useful thoughts, ideas, reactions, etc.: [excerpts start at p. 235]:

"The line between the legislative function and the judicial function is clear. The State can make criminal such conduct as it pleases, save as it is limited by the Constitution itself....

The Court is not concerned with the wisdom of state policies, only with the constitutional barriers to state action. Procedural due process is one of those barriers, as revealed over and again in our decisions....

[from FN14].... [Some] requirements of procedural due process are only implied, not expressed; their inclusion or exclusion turns on the basic question of fairness.... In that category are notice and the right to be heard....

Crampton had the constitutional right as a matter of procedural due process to be heard on the issue of punishment....

As was said in Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 655, 5 L.Ed.2d 670 (opinion of Frankfurter, J.):
‘We are not unmindful of the relevant major changes that have evolved in criminal procedure since the seventeenth century-the sharp decrease in the number of crimes which were punishable by death, the right of the defendant to testify on his own behalf, and the right to counsel. But we see *237 no reason why a procedural rule should be limited to the circumstances under which it arose if reasons for the right it protects remain....

.... where the opportunity to be heard on the sentence is denied both counsel and the defendant, the denial reaches constitutional proportions. See United States v. Johnson, 2 Cir., 315 F.2d 714, 717....

The truth is, as Mr. Justice Brennan points out in his dissent in these cases, that the wooden position of the Court, reflected in today's decision, cannot be reconciled with the evolving gloss of civilized standards which this Court, long before the time of those who now sit here, has been reading into the protective procedural due process safeguards of the Bill of Rights. It is as though a dam had suddenly been placed across the stream of the law on procedural due process, a stream which has grown larger with the passing years.

The Court has history on its side-but history alone. Though nations have been killing men for centuries, felony crimes increase. The vestiges of law enshrined today have roots in barbaric procedures. Barbaric procedures such as ordeal by battle that became imbedded in the law were difficult to dislodge. FN15 Though torture was used to exact confessions, felonies mounted. Once it was thought that ‘sanity’ was determined by ascertaining whether a person knew the difference between ‘right’ and ‘wrong.’ Once it was a capital offense to steal from the person something ‘above the value of a shilling.'....

Insight and understanding have increased with the years, though the springs of crime remain in large part unknown. But our own Federal Bureau of Investigation teaches that brains, not muscle, solve crimes. Coerced confessions are not only offensive to civilized standards but not responsive to the modern needs of criminal investigation. Psychiatry has shown that blind faith in rightness and wrongness is no reliable measure of human *242 responsibility. The convergence of new technology for criminal investigation and of new insight into mental disorders has made many ancient legal procedures seem utterly unfair.

Who today would say it was not ‘cruel and unusual punishment’ within the meaning of the Eighth Amendment to impose the death sentence on a man who stole a loaf of bread, or in modern parlance, a sheet of food stamps? Who today would say that trial by battle satisfies the requirements of procedural due process?

We need not read procedural due process as designed to satisfy man's deepseated sadistic instincts. We need not in deference to those sadistic instincts say we are bound by history from defining procedural due process....

As the Court said in Hebert v. Louisiana, 272 U.S. 312, 316-317, 47 S.Ct. 103, 104, 71 L.Ed. 270:

‘(S)tate action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie **1485 at the base of all our civil and political institutions and not infrequently are designated as ‘law of the land.’ Those principles are applicable alike in all the States and do not depend upon or vary with local legislation.'....

In 1884 the Court in Hurtado v. California, 110 U.S. 516, 529, 4 S.Ct. 111, 28 L.Ed. 232, said that due process was not frozen in content as of one point of time: ‘(T)o hold that such a characteristic is essential to due process of law, would be to deny every quality of the law but its age, and to render it incapable of progress or improvement. It would be to stamp upon our jurisprudence the unchangeableness attributed to the laws of the Medes and Persians.’

The Court went on to point out that though due process has its roots in Magna Carta, the latter contained words that changed with meaning as the centuries passed. Ibid. The Court noted that ‘(t)his flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law.’ Id., at 530, 4 S.Ct., at 118. And it went on to say that the generalities of our Constitution should be treated in the same way:

‘The constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of English law and history; but it was made for an undefined and expanding future, and for a people gathered and to be gathered from many nations and of many tongues * * *. There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every *244 age; and as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not less useful forms.’ Id., at 530-531, 4 S.Ct., at 118.

The Court pointed out that in England Magna Carta served merely as a restraint on the executive and as a guide to the House of Commons, the keeper of the Constitution. In this Nation, however, the Constitution serves a different function.

‘It necessarily happened, therefore, that as these broad and general maxims of liberty and justice held in our system a different place and performed a different function from their position and office in English constitutional history and law, they would receive and justify a corresponding and more comprehensive interpretation. Applied in England only as guards against executive usurpation and tyranny, here they have become bulwarks also against arbitrary legislation; but, in that application, as it would be incongruous to measure and restrict them by the ancient customary English law, they must be held to guarantee **1486 not particular forms of procedure, but the very substance of individual rights to life, liberty, and property.’ Id., at 532, 4 S.Ct., at 119.

In more recent times the issue was forcefully stated by Mr. Justice Black in Chambers v. Florida, 309 U.S. 227, 236-237, 60 S.Ct. 472, 477, 84 L.Ed. 716:

‘Tyrannical governments had immemorially utilized dictatorial criminal procedure and punishment to make scapegoats of the weak, or of helpless political, religious, or racial minorities and those who differed, *245 who would not conform and who resisted tyranny. (A) liberty loving people won the principle that criminal punishments could not be inflicted save for that which proper legislative action had already by ‘the law of the land’ forbidden when done. But even more was needed. From the popular hatred and abhorrence of illegal confinement, torture and extortion of confessions of violations of the ‘law of the land’ evolved the fundamental idea that no man's life, liberty or property be forfeited as criminal punishment for violation of that law until there had been a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power. Thus, as assurance against ancient evils, our country, in order to preserve ‘the blessings of liberty,’ wrote into its basic law the requirement, among others, that the forfeiture of the lives, liberties or property of people accused of crime can only follow if procedural safeguards of due process have been obeyed.'

..... Mr. Justice *246 Butler, speaking for the Court in Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 61, 82 L.Ed. 43, said:

‘For the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender. His past may be taken to indicate his present purposes and tendencies and significantly to suggest the period of restraint and the kind of discipline that ought to be imposed upon him.’

Justice FN17 - in the sense of procedural due process-is denied where a State makes inadmissible evidence designed to educate the jury on the character and propensities of the accused. Ohio does just that.

FN17. It is commonly overlooked that justice is one of the goals of our people as expressed in the Preamble of the Constitution:‘We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.’....
in Williams v. New York, 337 U.S. 241, 249-252, 69 S.Ct. 1079, 1084-1085, 93 L.Ed. 1337.... We said, ‘The due-process clause should not be treated as a device for freezing the evidential procedure of sentencing in the mold of trial procedure.’ Id., at 251, 69 S.Ct., at 1085. But so far as I can ascertain we never have intimated that a State can, consistently with procedural due process, close the door to evidence relevant to the ‘intelligent imposition of sentences' either by *247 judges or by juries. Cf. Specht v. Patterson, supra, 386 U.S. 605, at 608-609, 87 S.Ct. 1209, at 1211-1212.

It is indeed too late to say that, absent a constitutional amendment, procedural due process has no applicability to the determination of the sentence which is imposed.... A fortiori it would seem to follow that a procedure, which is designed to bar an opportunity to present evidence showing why ‘mercy’ should be extended to an accused in a death case, lacks that fairness which is implicit in due process....

.... The exclusion of evidence relevant to the issue of ‘mercy’ is conspicuous proof of that lopsided procedure; and the hazards to an accused resulting from mingling the issues of guilt, insanity, and punishment in one unitary proceeding are multiplied. Whether this procedure would satisfy due process when dealing with lesser offenses may be debated. But with all deference I see no grounds for debate where the stake is life itself."

Posted by: Defense attorney Timothy P. Polishan | Oct 3, 2012 12:55:43 PM

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