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November 28, 2013

What SCOTUS sentencing cases are you least thankful for?

A couple of years ago, I asked on Turkey Day in this post "What SCOTUS sentencing cases are you thankful for?". For lack of a better idea for a Thanksgiving post, I though it might be fun (or informative or interesting or a way to keep busy during football blowouts and before heading out shopping) to ask now what SCOTUS sentencing cases are you least thankful for.

Of course, I tend to be thankful for all of SCOTUS's sentencing decisions, as they have given me lots to write about in this space and elsewhere for nearly two decades now. But there is at least one major Eighth Amendment ruling that has always bothered me throughout the years, Harmelin v. Michigan, 501 U.S. 957 (1991), which upheld against an Eighth Amendment challenge Michigan's imposition of a mandatory life without the possibility of parole sentence for just the possession of 672 grams of cocaine. I believe that ruling, which reflected sentiments prevailing at the height of the modern "war on drugs," has long thwarted reasonable development of Eighth Amendment jurisprudence.

November 28, 2013 at 03:33 PM | Permalink


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And son of Harmelin, Ewing v. California, 538 U.S. 11 (2003): 25 yrs to life for stealing three golf clubs.

Posted by: kenneth jost | Nov 28, 2013 4:50:21 PM

Ewing was correctly decided. Long-time criminal just can't get the message.


Posted by: federalist | Nov 28, 2013 8:32:14 PM

The Eighth Amendment does not get much discussion on law blogs. This is one area where the Intent of the Original Framers (in the capital letter protocol of Scalia) is the least relevant. It would seem cruel to the Original Framers to lock someone up for life for some drug. It seems cruel or crueler now than it did in 1991. Cruel and unusual is something that changes with the times. And the times they are a changing.

Posted by: Liberty1st | Nov 28, 2013 8:55:58 PM

In Baze v. Rees U.S. Supreme Court, 553 U.S. Apr. 16, 2008, the Court had an opportunity to end the death penalty, and the death penalty appellate, $multi-billion business. It could have eliminated all obstacles to the death penalty. It chose to finely tune it, to continue the present slow as molasses, down the middle course of endless appeals, as a method of lawyer rent seeking, to generate worthless, make work government jobs for the lawyer profession.

This is fraud against the taxpayer. All but 10% of us will have a horrible death, with prolonged pain, humiliation, and disability. Why the murderer has to have a perfect death, without the slightest pain is a mystery, other than the murderer has the full protection of the lawyer profession, as a pretext for rent.

Then the lawyer dumbasses on the Supreme Court missed the biggest cruelty in the modern death penalty, the set date. Even moribund people in hospice care are spared the cruelty of a date of death certain, sparing them that sick countdown.

Posted by: Supremacy Claus | Nov 29, 2013 12:45:08 AM

Lib: Around 95% of adjudicated charges are fictitious, and completely minimize the severity and dangerousness of the crimes committed. Then each arrest has to stand in for 10 FBI Index felonies, never addressed by the lawyer run criminal law. Each of these imprisoned criminals commits hundreds of crimes on the outside, and perhaps even in prison. Crime is so rewarding, and carries so little risk, that every sentence is an opportunity to prevent hundreds of crimes a year.

Before judging a sentence, one must have the indictment list of crimes. That never happens when the dumbass lawyer does research. The lawyer is an idiot running the entire criminal law.

Posted by: Supremacy Claus | Nov 29, 2013 1:15:33 AM

The only thing good to say about Harmelin is that it seems that Justice Kennedy's three step test to evaluate as applied Eighth Amendment challenges, as set forth in his concurrence in Harmelin, has now become clearly established federal constitutional law. It assumed that position by Justice Kennedy's opinion in Graham. It is followed by every federal circuit court, and the vast majority of state appellate courts. The problem is it has received only oblique reference in North Carolina in the case of State v Whitehead, and most judges and prosecutors I deal with still think that if a sentence is within the range allowed by the legislature, it is per se constitutional. (I think those folks were absent the day that Marbury v Madison was taught in Con Law)


Posted by: bruce cunningham | Nov 29, 2013 12:30:28 PM

Bruce: Glad you brought up Marbury or as I call it, Marburygate because it is really void for illegality, and a brazen violation of Article I Section 1. It was the most catastrophic decision in history, in that its first expression 50 years later was Dred Scott that breached the Missouri Compromise, a ratified international treaty with Canada, and set off the deadliest war of all, the Civil War, with 600,000 dead, more likely 850,000 dead. Here the analysis for your review.

Glad you brought it up.

John Marshall is the greatest Chief Justice of the Supreme Court, Marbury v. Madison, 1803, the most important case. These are accepted dogma down to grade school. Arcane lawyer textbooks mention ethics problems, but quickly gloss over (1,2). Critical reviews go unread, not even referenced (3).


1. Double Dipping. Marshall was Secretary of State for Pres. John Adams, until inauguration, March 4, 1801. He served as Chief Justice of the Supreme Court February 4, 1801. Jefferson won the election, breaking an electoral tie, February 17. Article I, Section 6, the Incompatibility Clause, prohibits simultaneous service in the Executive and Legislative branches. Service in the Judicial branch is not expressly forbidden (4).

2. Nepotism. James Marshall, the brother was assigned the task of delivering the Justice of the Peace Commissions. These were not judgeships, but at will, executive branch agency jobs for the
administration of the District of Columbia. Salary was to come from the executive branch. James failed to deliver Marbury's commission prior to midnight, March 3. Jefferson was cousin to Marshall. They hated each other.

3. Personal Involvement. The undelivered commissions were left in the office of the Secretary of State Marshall. Marshall judged his own conduct in this case.

4. Supreme Court Jurisdiction. Mr. Marbury claimed the Judiciary Act of 1789 permitted a trial at the Supreme Court on a writ of mandamus. Article III, Section 2, The Original Jurisdiction Clause, assigns appellate jurisdiction in such matters. The Supreme Court so held, to their credit. But it chose to go on with the case. It held Section 13 of the Judiciary Act, conferring such jurisdiction to be unconstitutional. Although, it felt it proper to grant Marbury his writ, the unconstitutionality of that Section precluded doing so by lack of jurisdiction.

5. Conflict of Interest. There was a little tension between Federalist Court and Republican Congress. They canceled the Supreme Court sessions of June and December, 1802. They repealed the Circuit Court Act, forcing the Justices to ride circuit, once again. They removed Justice Pickering for alcoholism and insanity. They impeached Justice Chase, but failed to remove him.

6. Misreading. Section 13 of the Judiciary Act allows mandamus remedy where the Court has jurisdiction. It does not extend jurisdiction, in violation of Article III. If it were read properly, Congressional discretion to enlarge jurisdiction, in the Exceptions and Regulation Clause, would permit enlargement of jurisdiction. The central holding is therefore incorrect (5).

7. Judicial Power to Increase Judicial Power. In its trickiness and dodging, it is equally wrong to refrain from carrying out a duty to mandate delivery of a commission. May a Judge "refuse to do justice under the law in order to advance his own personal power and that of other judges"? (6)

Judge Disqualification in 1803

In English common law, judges could be disqualified for money interest in a case (7). The Act of May 8, 1792, permitted disqualification if the Judge was "concerned in interest," had "acted in the cause, or had "been of counsel."(8). In those days, judicial temperament was supposed
to overcome bias, as a judge duty.

Judge Disqualification Today

28 USC Section 4559 applies to Federal Judges, including those on the Supreme Court (9).

Marbury grounds for modern disqualification would include: "personal knowledge of disputed evidentiary facts", "served in governmental employment and in such capacity participated as counsel, adviser or material witness", "a person within the third degree of relationship"
is involved.

No waiver from the party adversely affected is permitted (Section 455 (e)).


There is no mechanism of enforcement if a Supreme Court Justice refuses to recuse voluntarily.

Exclusionary Rule II

What product or method of service from 1803 is acceptable today? None. If someone tried to sell carriages from those days for daily use, tried to practice the medicine of those days, they deserve to be arrested as a threat to public safety.

Why is a corrupt decision from 1803 holding sway? The answer is lawyer cover up, indoctrination of the nation, and worse, of themselves, and lawyer self-dealing. This cover up is for power, in furtherance of judge tyranny.

Summary impeachment is appropriate for challenged judges who violate federal statute on disqualification. Congress is unlikely to go through that difficult, time consuming process.

Failing impeachment, the decision should be voided automatically by statute. It is not enough to cancel the vote of the disqualified Justice. Given the secrecy and cover up at the Court, it is unknown if the disqualified Justice tried to convince, made deals, or otherwise influenced peers. That decision must be voided as "bearing the fruit of the poisoned tree." Marbury v Madison should be the first case so voided.


1. Barron, JA, Dienes, CT, McCormack, W, Redish, MH: Constitutional Law: Principles and Policy Cases and Materials. LexisNexis, Newark, NJ, 2002. Pp.11-12.
2. Chemerinsky, E. Constitutional Law, Principles and Policies. Aspen, New York, NY. 2002. Pp. 39-46.
3. Paulsen, MS: Marbury's Wrongness. Const Comment. 20: 343-357, 2003.
4. Id. at 350.
5. Id. at 353, summarizing several critics of this misreading.
6. Id. at 357.
7. Flamm, RE: Judicial Disqualification, Recusal and Disqualification of Judges, Aspen, New York, NY, 1996. P. 9.
8. Id. P. 10.
9. Bassett, DL: Judicial Disqualification in the Federal Appellate Courts, IA L Rev 87:1214-1256, 2002.

Posted by: Supremacy Claus | Nov 29, 2013 4:40:19 PM

I'll go with Furman v. Georgia. That some (or even many) offenders worthy of execution are spared that fate is no reason to spare other equally worthy criminals. I would rank Coker v. Georgia and Kennedy v. Louisiana right up there as well.

Posted by: Soronel Haetir | Nov 29, 2013 7:32:01 PM

Kennedy v. Louisiana. Moral preening embellished by judicial arrogance and a big helping of dishonesty. Blown apart by the dissent, which it didn't bother to answer.

Posted by: Bill Otis | Nov 29, 2013 10:09:42 PM

I would like to change my vote. By many orders of magnitude, Marbury v Madison stands alone in its toxicity to the nation.

Posted by: Supremacy Claus | Dec 2, 2013 4:58:39 PM

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