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August 4, 2017

Split DC Circuit finds unconstitutionally excessive 30-year mandatory minimum sentences for Blackwater contractors who killed Iraqis

A huge new DC Circuit opinion released today in a high-profile criminal case include a significant Eighth Amendment ruling.  The full 100+-page opinion in US v. Slatten, No. 15-3078 (DC Cir. Aug. 4, 2017) (available here), gets started this way:

Nicholas Slatten, Paul Slough, Evan Liberty and Dustin Heard (“defendants”) were contractors with Blackwater Worldwide Security ("Blackwater"), which in 2007 was providing security services to the United States State Department in Iraq. As a result of Baghdad shootings that injured or killed at least 31 Iraqi civilians, Slough, Liberty and Heard were convicted by a jury of voluntary manslaughter, attempted manslaughter and using and discharging a firearm in relation to a crime of violence (or aiding-and-abetting the commission of those crimes); Slatten was convicted of first-degree murder. They now challenge their convictions on jurisdictional, procedural and several substantive grounds....

The Court concludes ...that the district court abused its discretion in denying Slatten’s motion to sever his trial from that of his co-defendants and therefore vacates his conviction and remands for a new trial. Moreover, the Court concludes that imposition of the mandatory thirty-year minimum under 18 U.S.C. § 924(c), as applied here, violates the Eighth Amendment prohibition against cruel and unusual punishment, a holding from which Judge Rogers dissents. The Court therefore remands for the resentencing of Slough, Liberty and Heard.

The majority's Eighth Amendment analysis is really interesting, running more than 30 pages and covering lots of ground. And it wraps up this way:

The sentences are cruel in that they impose a 30-year sentence based on the fact that private security contractors in a war zone were armed with government-issued automatic rifles and explosives. They are unusual because they apply Section 924(c) in a manner it has never been applied before to a situation which Congress never contemplated. We again emphasize these defendants can and should be held accountable for the death and destruction they unleashed on the innocent Iraqi civilians who were harmed by their actions. But instead of using the sledgehammer of a mandatory 30-year sentence, the sentencing court should instead use more nuanced tools to impose sentences proportionally tailored to the culpability of each defendant.

Judge Rogers' dissent from this conclusion is also really interesting, and it concludes this way:

Although it is possible to imagine circumstances in which a thirty-year minimum sentence for a private security guard working in a war zone would approach the outer bounds of constitutionality under the Eighth Amendment, this is not that case.  The jury rejected these defendants’ claim that they fired in self-defense, and far more of their fellow security guards chose not to fire their weapons at all that day.  Yet as my colleagues apparently see it, Congress should have included an exception for all such military contractor employees, or, rather, it would have included such an exception if it had only considered the issue.  See Op. 72–74.  Perhaps so, but that is not the question before us. The district court judge made an individualized assessment of an appropriate sentencing package for each of these defendants, and the result is not disproportionate to the defendants’ crimes, let alone grossly, unconstitutionally disproportionate.

I think it possible (but not at all certain) that the feds will seek cert review of this Eighth Amendment decision, and I think it also possible (but not at all certain) that SCOTUS might be interested in this issue in this setting.

August 4, 2017 at 12:39 PM | Permalink


Starting under George Bush, an indoctrinated, pro-big government, Harvard graduate (not of the Law School), the criminal cult enterprise (CCE)embedded lawyers down to the tactical unit, generating hundreds of toxic, lawyer, make work jobs. These lawyers served as commissars of political correctness. They are 100% responsible for our defeat by Stone Age savages with $50 weapons. They canceled the orders of Four Star generals. They stopped a drone attack on the limousine convoy of Mullah Omar. They threatened and intimidated our warriors with prosecution.

They effectively deterred our warriors. In The Lone Survivor, the elite squad was spotted by a farmer. Instead of killing him on the spot, a three hour legal analysis broke out. All perished as the farmer reported their location to the Taliban. One survived by luck of becoming the guest of a tribal leader.

Once the public has had enough of the CCE, the names of these military lawyers will be released. They will be arrested, tried for aiding the enemy, and shot on the spot. The prosecutor of these contractors, and this judge should on the arrest list.

Posted by: David Behar | Aug 4, 2017 12:58:05 PM

Prof. Berman. Your book does not cover sentencing law and policy for treason. If you are taking requests, you should address the subject in the next edition. It will come in handy in the future.

Posted by: David Behar | Aug 4, 2017 12:59:21 PM

It has the now fairly common usage of a table of contents.

Perhaps, it will go en banc.

I question if this is the sort of general case that Supreme Court would wish to take among the tiny number of 8A cases it takes. It is an atypical application, applied in the DC Circuit, so that helps some.

Also, this reminds that abuses during the war on terror etc. has had some pushback that resulted in punishment, which you might not know from some comments of critics.

Posted by: Joe | Aug 4, 2017 1:21:41 PM

This is a monumental Eighth Amendment decison.

Not sure what the remedy is on remand.

Posted by: Grizzly Bear | Aug 4, 2017 2:13:39 PM

The majority's reasoning is very strange. It is not saying that the sentences were substantively unreasonable, it is saying that the legal procedure that produced the sentence ("the sledgehammer") violates the 8A. The court is saying that a MM /as applied/ to these defendants violates the 8A. But I always understand the 8A to be a substantive safeguard, not a due process of law safeguard. I fail to see how an otherwise constitutional sentencing scheme (a MM sentence) can be turned an 8A violation based upon the characteristics of the defendant. Because that is what the court is saying, it is not saying that the punishment is unusual per se, it is saying that what makes the punishment usual is the characteristics of the defendants (government contractors in a war zone).

Why even bother to drag the 8A into it?. Why not rule that the sentences were sustainability unreasonable (now that the guidelines are advisory)? As it stands, the lower court can go back and say "I ignored the 30 year MM but I am going to sentence them to 30 years anyway!" and then what will the appeals court say?

Posted by: Daniel | Aug 4, 2017 4:38:16 PM

I cannot make sense of any of this. Firstly, "cruel and unusual punishment" - certainly does not meet either criteria, since people are regularly punished at these lengths for manslaughter. Maybe the length can be appealed, but certainly not on constitutional grounds.

How was there an abuse of discretion to not hold separate trials? What sort of judge would separate such an event into four trials. The use of the word "sledgehammer" is a hardly something to be used in a legal decision of this importance. More like political rhetoric. It's hard to see what sort of trial with co-defendants is not a breach of discretion.

This news will go around the world, as an example of American institutions placing little value on the lives of non-Americans. If it were 17 Americans being killed by trigger-happy security guards who were non-citizens, the judges would never get away with this.

Posted by: Dave Lat | Aug 4, 2017 5:03:33 PM

I answered my own question.

The majority can't rule that the sentence was substantivity unreasonable because it was a MM sentence. At the same time, it doesn't want to rule that the MM sentencing scheme itself violates the 8A for the obvious reason that it is not. There are plenty of applications of the MM sentencing scheme that would not violate the 8A. So rather than grumbling and taking its lumps the majority concocts a rationale where the MM sentencing scheme is unconstitutional as applied to these defendants. If that wasn't eye-popping enough even more startling this rationale is not based upon the unusual nature of the punishment itself but based upon the unusual characteristics of the defendants. In effect then the majority incorporates 18 3533 into the 8A.

I don't want to say the majority is crazy, after all one can argue that Miller essentially takes a characteristics of a defendant (their youth) and rotates an 8A analysis around it. But it is a huge leap from a demographic factor like youth to "government contractor in a war zone". The nature of the those characteristics is very different.

Posted by: Daniel | Aug 4, 2017 5:08:52 PM

I would note that if you look at the table of contents that "Eighth Amendment" is not only section "VIII" (ha) but that the discussion begins on page 69. So, it's only part of it.

The USSC, other than in the death penalty context [Graham v. Florida noted various categorical limits arose there] and minors [even more controversial; Roberts concurred in Graham], has very sparingly applied 8A limits as to term of years for adults.

In fact, I know of but a single case (a 5-4 ruling from the early 1980s regarding a life sentence without a chance of parole) in modern times when they did so. An early 20th Century case dealt with a very harsh old Spanish punishment in the Philippines. An early 1960s case held you can't make drug addiction alone a crime. Various cases dealt with prison conditions. I also know of a 1990s case where the Court in a close vote determined something was an excessive fine.

The professor and others would be open to a more expansive application of the rules there and that might be appropriate. But, it would be an advancement of the law. This opinion flags the "statute’s application only tangentially relates to Congress’s purpose for creating the statute in the first place" and says that warrants less deference. It is unclear that is true as applied not sure how much that is a 8A argument.

Then, the majority notes these are first time offenders. Okay. They are first time killers or attempted killers of many people. The most in one case was 17 dead, 13 attempted killings. The opinion cites cases involving property crimes. The Supreme Court (rightly or wrongly) found a single serious drug offense warranted a very long sentence.

Next, it says the mandatory punishment doesn't provide enough individual discretion. That would call into question mandatory punishments that entails long sentences generally and the Supreme Court has shown no determination that is necessary. Again, they very rarely held something was constitutionally barred in here in a non-death penalty context.

And, the majority says the crimes here are comparatively less serious than others punished by the provision because of the nature of the the crime (war zone etc.). The dissent makes a good case that is mistaken.

Again, the 8A aspect of the opinion is only one portion. But, to me, it seems open to overturn if it goes to en banc or higher.

Posted by: Joe | Aug 4, 2017 6:00:27 PM

"...Baghdad shootings that injured or killed at least 31 Iraqi civilians,..."

Question: Why do they hate us?

Answer: They hate us for our freedoms.

Posted by: albeed | Aug 4, 2017 6:32:11 PM

Daniel, the Eighth Amendment can absolutely be a procedural safeguard, but generally in narrow categories: Juvenile homicide cases and death penalty cases are the big ones.

Anyway, this is an interesting ruling that could suggest use in a wide range of cases. I'm skeptical it would ever be applied to broader contexts, though.

Posted by: Erik M | Aug 4, 2017 11:14:46 PM

@Eric M

But isn't the broader context exactly what is at stake in this case? If there is such a creature as a 8A due process claim (as opposed an "as applied" claim.) what are the parameters of such due process claims? Kids, the DP, so why not government contractors in a war zone? What not punishment for adultery? Why not goat sex? The question because if there is a 8A due process claim (of which I am very dubious) then why is that due process concern only applied to some people/some context and not others?

One of the reasons I tend to be skeptical of due process claims in the sentencing context is because due process rulings almost always reduce to one of two categories. The first category is legal heat without any light where the appeals court bitches about process, a lot of dust gets kicked up, and the defendant on remand gets the exact same sentence he had before with a different process. This does not impress me other than as a waste of time and energy. The second category is where the judges feign they are complaining about due process but this is just a hint that they think the sentence is substantively unreasonable but they don't have a legal leg to stand on. Which, FWIW, is what I suspect happened in this case (as well as Graham and Miller). This does not impress me except as a matter of judicial deceit.

In every case the only meaningful question from the perspective of justice is whether or not the guilty party got the sentence he deserved. This is a very difficult question on which many people can and do disagree. But in my view due process claims in the sentencing context serve only to confuse and elide the substantive questions. They are, frankly, unhelpful.

Posted by: Daniel | Aug 5, 2017 12:20:22 PM

30 years is unconstitutional for manslaughter, but life in prison for shoplifting is OK? Yeah, right.

Posted by: ohwilleke | Aug 6, 2017 11:16:09 AM

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