« "With repeal of state death penalty, death row questions arise" | Main | When do the costs of incarcerating the elderly clearly outweigh any benefits? »

April 14, 2012

A quirky constitutional query about quirky sentencing laws

For complicated reasons, I think there are some complicated constitutional issues lurking very deep beneath the Fair Sentencing Act statutory interpretation cases to be considered by the Supreme Court this week in Hill and Dorsey (basics via this detailed account of the cases via SCOTUSblog).  Without trying to get to the intricate specifics, I want to get reader reactions to what I think might be a simplified (but imperfect) hypothetical variation of some of these constitutional issues.  So here goes:

Would it be constitutional for a state legislature to pass a law that provides, for the next year and only for the next year, all persons committing and convicted of any and all sexual offenses less serious than rape — which the state's penal code still defines as 2d, 3d, and 4th degree felonies — must be sentenced to 20 years in prison while all persons convicted of rape (even those with a lengthy criminal history) — which the state's penal code still defines as a 1st degree felony — must not be sentenced to more than 20 years?  

Of course, one might readily wonder why a legislature would ever pass such a law, and I welcome the development of theories about how such a law might ever actually come to happen.  But I am also interested in views that do not fight the hypothetical and explore whether and how defendants, specifically those first-offenders subject to the mandatory minimum 20-year term for lesser sex offenses, could or should argue that this legislation is unconstitutional because they were forced to be given sentences that are at least as long as the maximum sentence to be given for more serious sex offenses.

UPDATE:  I have added a clarification set off with dashes to respond to a concern mentioned by Daniel in the comments.  The idea is NOT that the state legislature has decided to redefine what crimes or more serious, but rather that they decided that for a certain fixed limited period of time certain crimes they otherwise define as less serious will be punished more harshly than certain crimes they otherwise define as more serious.

I am sorry I was not clear on this point, but it is this clarification that help sharpen how my hypo connects to the issues before SCOTUS in Hill and Dorsey.  In essence, the appointed amicus in the case has to argue that, through the provisions of the FSA, Congress created a federal sentencing scheme in which, for a fixed limited period of time, certain crack offenses otherwise defined as less serious in federal law will be subject to a harsher punsihment structure than certain crack offenses otherwise defined as more serious in federal law.  I think there is a compelling argument that Congress did not mean to create such a scheme, but my quirky query here is to explore whether it would be consitutionally suspect for a legislature to express enact such a sentencing scheme.

April 14, 2012 at 01:15 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference A quirky constitutional query about quirky sentencing laws:


I think you have your answer in the other major story you've been posting about in the past few days: the repeal of Connecticut's death penalty and the effects on that state's death row inmates. While there may or may not be a valid equal protection claim there, I have to think that an explicitly time-limited sentencing scheme, at least without justification that would survive strict scrutiny, would be obviously a violation of equal protection.

Posted by: Anonymous | Apr 14, 2012 2:01:00 PM

A "serious crime" is just what the legislature says is a serious crime. There is nothing inherent in rape, to use your example, that makes it more serious than jaywalking. There is no objective criteria for seriousness; it's a cultural and political judgment. So to me you hypo is circular because it assumes what it seeks to prove, namely that some crimes are more or less serious than others in the abstract rather than valuing the legislature's judgment.

If I were to make an argument it would be based not upon equality but upon proportionality. I'd argue that a 20 year sentence for "inappropriate touching" is inherently cruel and unusual because that penalty for a first time offender is disproportionate to the crime. I'd focus on an intra-crime proportionality test vs an inter-crime equality test. I'm not sure that I'd buy that argument either, but it seems on surer ground the the hypo Doug made up.

Long story short, yes I do think it would be constitutional to pass the law you described.

Posted by: Daniel | Apr 14, 2012 2:20:56 PM

what about an argument under Bill of Attainder principles, that the legislature is singling out a particular group, those charged within a certain period of time, for greater punishment?

Posted by: bruce cunningham | Apr 14, 2012 9:49:19 PM

Daniel, in the hypothetical the courts do not have to independently find that rape is a more serious crime than lesser forms of sexual assault. The legislature has already defined the seriousness of these crimes, by labeling them 1st through 4th degree felonies; the oddity is that it requires the less serious 2nd through 4th degree felonies be punished at least as seriously as the more serious 1st degree felonies.

I vote that this is cruel and unusual. It is unusual since greater crimes usually get greater punishments, and it is cruel since there is no valid reason to punish lesser crimes more severely. I do not see how requiring a greater punishment for a lesser offense survives the proportionality test of Solem v. Helm.

The hypo is like State v. Dayutis, 498 A.2d 325 (N.H. 1985). In that case the defendant was convicted of second-degree murder and received a sentence greater than the maximum for first-degree murder, and the New Hampshire Supreme Court held that was cruel and unusual.

(I have not addressed the oddity of the one-year sunset provision. I need to think about that some more.)

Posted by: Paul | Apr 15, 2012 12:40:08 AM

Doug. Thanks for clarifying what you meant. I don't think it changes my fundamental point, though. The Equal Protection Clause came about as a result of the Civil War and its purpose was to address geographic inequalities. It simply is unworkable to insist on temporal equality. Times change, attitudes change, elections have consequences. To insist that the government can't make temporary adjustments is to preserve the government by hamstringing it. Heck, under your theory it would be unequal and therefore a Constitutional violation to temporarily reduce taxes or any of the other thousands of things the government does on a temporary basis.

I think the proportionality argument is the better way to go. My problem is that while I think you could make the case, as Paul does, that such a move by the legislature as outlined in your hypo is "unusual" but I'm not convinced it is cruel. But maybe it is cruel in the crack context. Cruelty is such an inherently subjective term; who know what SCOTUS will think.

Bruce's Bill of Attainder idea is interesting but I honestly don't know enough to comment on that aspect.

Posted by: Daniel | Apr 15, 2012 1:25:15 AM

Wouldn't your position basically mean that a state could never lower a sentencing penalty without making it retroactive? In other words, if a state chooses to make a sentencing penalty lower, it is constitutionally obligated to make it retroactive?

Posted by: anon | Apr 15, 2012 9:55:53 AM

You hit on the potential implications of what I am asking, anon, though with the critical twist of the state providing for some partial "retroactivity" for ONLY more serious offenders when it lowers a sentence. So, to refine the idea with this lowering of penalties front and center, I wonder if a state could constitutionally provide that ONLY those previously convicted of murder and sentenced to prison would now become eligible for parole, whereas those convicted and sentenced to prison for any and all lesser forms of homicide (manslaughter, vehicular homicide, etc.) would still not be eligible for parole.

In other words, the idea is not so much that a state has to make all lower penalties retroactive, but rathe that a state cannot lower penalties ONLY for more serious offenders of a particular kind of crime and not provide any reduction of any form for less serious offenders of that kind. In addition to thinking Eighth Amendment claims might be in play, as prior commentors suggest, I also think there might be a basis for asserting an EP or DP claim based on the lack of a rational basis for this kind of approach to a sentence reduction that only operates to benefit more serious offenders.

Posted by: Doug B. | Apr 15, 2012 12:02:13 PM

anon has a good point. The reason Doug's hypothetical does not move the Dorsey ball is clear: Unless the Saving Statute itself is unconstitutional, there has to be SOME cutoff point where those on one side of the line get the benefit of lower sentences and those on the other side don't. The only question in Dorsey is where that line is. Under the Saving Statute, it's where the Seventh Circuit found it.

In addition, and as I have pointed out before, if Congress actually intended to avoid the Saving Statute, and just forgot, it has had close to two years to apply a simple, one-sentence fix. It hasn't. End of story.

Posted by: Bill Otis | Apr 15, 2012 12:06:57 PM

But Bill, you still have not confronted the quirk of the FSA that is my chief concern --- just why would Congress, and can it even do so constitutionally, provide that MORE SERIOUS crack offenders AVOID the harsh impact of the Saving Statute here, while LESS SERIOUS ones do not? That is what the FSA purports to do under your statutory interpretation. Beyond wondering what legitimate reason Congress would enact a statute to work that way -- i.e., to help immediately only MORE SERIOUS crack offenders -- I continue to wonder whether there are constitutional problems with a statute operating this way to benefit, for a limited time, only more serious crack offenders.

Posted by: Doug B. | Apr 15, 2012 6:44:31 PM

Doug --

Because more serious offenders got harsher sentences to start with, and, thus, sentences more urgently in need (in Congress's) view of amelioration.

Posted by: Bill Otis | Apr 15, 2012 9:25:46 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB