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February 28, 2018

Entire First Circuit urges Supreme Court to revisit Harmelin's limits on Eighth Amendment challenges to extreme adult prison sentence

A helpful reader made sure I did not miss the remarkable opinion emerging yesterday from the First Circuit in the form of a very lengthy concurrence in the denial of rehearing en banc in United States v. Rivera-Ruperto, No. 12-2364 (1st Cir. Feb 27, 2018) (available here). Last year I noted the panel opinion in this case in this post titled "Extended dissent laments First Circuit panel's rejection of Eighth Amendment attack on 160-year sentence for stash house participant."  Interestingly, this time around all the First Circuit judges seem to be on the same page, deciding they lack authority to find Wendell Rivera-Ruperto's extreme sentence unconstitutional, but urging the Supreme Court to revisit the precedent they see as standing improperly in their way.

Judge Barron's lengthy opinion is a must-read for Eighth Amendment fans, and it defies ready summary.  To begin, Judge Barron explains why the analytical framework set by Solem v. Helm, 463 U.S. 277 (1983) would lead him to "find that Rivera's mandatory, more-than-century-long sentence was grossly disproportionate and thus in violation of the Eighth Amendment."  But, continues Judge Barron, judges must further consider Harmelin v. Michigan, 501 U.S. 957 (1991), and "the Harmelin concurrence controls the outcome here, and ... does so by limiting our inquiry to a consideration of only Solem's first criterion."  And, according to Judge Barron, ultimately judges "have no choice but to approve mandatory 'forever' sentences under § 924(c) so long as they can hypothesize a rational reason for the legislature to have thought that the underlying criminal conduct was as serious as the large quantity drug possession at issue in Harmelin." 

After intricate analysis of these and other Eighth Amendment and related precedents, this remarkable opinion (which, again, was joined by all the First Circuit judges), concludes this way:

Rivera faces the longest and most unforgiving possible prison sentence for conduct that, though serious, is not of the most serious kind.  He does so not because the legislature had authorized its imposition and a judge had then considered all of the aggravating and mitigating circumstances and determined that this sentence was appropriate.  He does so only because Congress has been deemed to have made a blanket judgment that even an offender like Rivera -- who has no prior criminal record and whose series of related crimes resulted in no harm to an identifiable victim -- should have no hope of ever living free.  And he does so even though virtually every comparable jurisdiction punishes comparable criminal conduct less harshly, and even though the federal government itself punishes nearly the same or seemingly worse conduct more leniently.

Almost three decades have now passed since the concurring Justices in Harmelin concluded, without reference to real-world comparative benchmarks, that the Eighth Amendment afforded the Michigan legislature the scope to try out what at the time was viewed as a permissible sentencing experiment to address a newly concerning crime problem.  In those intervening decades, virtually no jurisdiction has been willing to replicate that state's experiment.  In fact, even the state that the Harmelin concurrence permitted to try it has abandoned it.  And yet the Harmelin concurrence still controls.

In my view, a consequence as grave as the one that Harmelin requires in a case like this should have the imprimatur of more than only a nearly three-decade old, three-Justice concurrence. I thus urge the Supreme Court to consider whether the Eighth Amendment permits, at least in a case such as this, the mandatory stacking of sentences under § 924(c) that -- due to their cumulative length -- necessarily results in the imposition of a mandatory sentence of life without parole.

February 28, 2018 at 01:00 PM | Permalink


A crooked cop--multiple crimes--hmm. Harsh. Unconstitutional---hardly.

Posted by: federalist | Feb 28, 2018 5:12:42 PM

When the Bill of Rights were submitted to the states, Congress in part said:

"THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution."

Courts -- as noted in communication between Jefferson and Madison -- would play an important role here. Also, as compared to various things, judges do have some special skills and responsibility to consider this specific matter. The opinion here makes a strong case that Harmelin has not been applied the best way over the years.

But, overall, the power of the words of the amendment have some force all the same beyond that, both when judges craft sentences and for others involved in the process. This includes prosecutors who choose who to should get what punishments and legislators when they draw up such laws. They all have a duty including when applying things that in practice are treated as mere political questions.

Anyway, if this conduct warrants life in prison, it arguably somewhat waters down the force of such a punishment in other cases where the crime are more heinous. Even a range of murders, rapes etc. -- above and beyond as required by the Supreme Court -- doesn't get that (or execution) in many cases.

Posted by: Joe | Mar 1, 2018 12:35:27 PM

Nancy Leong Retweeted Joshua Matz [referencing this matter]

This *is* an extraordinary development. As a former 1st Circuit clerk, I can confirm that even though there are only six judges they disagree about All The Things


My judge (Lipez) has taken senior status now but joined the concurrence because he was part of the original panel, which means that SEVEN of them agreed ZOMG

Posted by: Joe | Mar 1, 2018 2:15:45 PM

8th Amendment jurisprudence is also important because the practice of executive clemency has atrophied for a variety of reasons, to almost nothing.

Posted by: ohwilleke | Mar 1, 2018 7:23:05 PM

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