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September 12, 2022

Noting opaque SCOTUS rulings, split Ninth Circuit panel rejects habeas Eighth Amendment claim against 292-year prison term

Being sentenced to serve in 292 years in prison for a bunch of non-violent offenses certainly seems pretty "cruel."  And such an extreme prison term is still somewhat "unusual" in modern times, and surely would have been entirely unknown to the Founders. (Remarkably, were someone sentenced to 292 years in prison in 1790, he would still have 60 years left to serve circa 2022.)  But, despite textualist and originalist turns in other areas, modern Eighth Amendment jurisprudence does not (yet?) focus on the text and original understanding of this provision.  Indeed, because there have been so few modern cases about application of the Eighth Amendment to extreme adult prison sentences, it remains unclear just whether and how the Eighth Amendment still serves to limit extreme adult prison terms at all.

I flag these issues in the wake of a notable recent split Ninth Circuit panel decision in Patsalis v. Shinn, No. 20-16800 (9th Cir. Sept. 6, 2022) (available here), in which the very opaqueness of Eighth Amendment jurisprudence provided the basis for rejecting a habeas challenge to a 292-year state prison term. Here is the start of the majority opinion in Patsalis providing context as well as passages from the discussion:

Petitioner-Appellant Atdom Patsalis seeks federal habeas relief, arguing that his 292-year total sentence imposed by an Arizona state court is grossly disproportionate to his crimes and, therefore, cruel and unusual in violation of the Federal and Arizona Constitutions. Patsalis was convicted of 25 felonies (mostly residential burglaries) committed against multiple victims over a three-month period. These were not his first crimes. The trial court imposed consecutive sentences on all but two of the 25 counts, resulting in an overall sentence of 292 years imprisonment.

The Arizona Court of Appeals rejected Patsalis’s constitutional claim concluding that proportionality should be assessed based on each individual conviction and sentence, not the cumulative effect of consecutive sentences, and that none of Patsalis’s individual sentences were disproportionate. Patsalis sought habeas relief under 28 U.S.C. § 2254. He argued that the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA) deferential standard of review does not apply to the Arizona Court of Appeals’ decision because that court did not consider the cumulative impact of his sentence. Instead, he argued that he was entitled to de novo review on this claim. The district court disagreed, afforded AEDPA deference to the Arizona court, and concluded that Patsalis is not entitled to relief. We affirm....

There is no clearly established law from the Supreme Court on whether Eighth Amendment sentence proportionality must be analyzed on a cumulative or individual basis when a defendant is sentenced on multiple offenses.... Lockyer is instructive....  The Court noted that its sentence-proportionality precedents “have not been a model of clarity.” Id. at 72. It further recognized that it has “not established a clear or consistent path for courts to follow” in analyzing proportionality of a sentence to a term of years. Id. Nor has it been clear about “what factors may indicate gross disproportionality” or provided “clear objective standards to distinguish between sentences for different terms of years.” Id. (cleaned up). Other than the basic principle of proportionality, the only thing that the Court has established is that the rule against grossly disproportionate sentences is violated “only in the exceedingly rare and extreme case.” Id. at 73 (cleaned up)....

To grant Patsalis’s habeas petition, we must conclude that “there is no possibility fairminded jurists could disagree” that the Arizona Court of Appeals’ decision conflicts with the Supreme Court’s clearly established precedents. Harrington, 562 U.S. at 102.  This we cannot do given the limited Supreme Court precedent regarding the prohibition against disproportionality of a sentence to a term of years.

Judge Christen penned a lengthy dissent, and here are parts of its opening and analysis:

Atdom Patsalis was convicted of various non-violent theft-related crimes committed over a three-month period when he was twenty-one years old. The total value of the property was about $5,000. Pre-trial, the State of Arizona made two plea offers of twenty years or less. Patsalis rejected both offers and was convicted of the charged offenses after a jury trial. The longest sentence imposed for any of his crimes was 15 years, but the court specified that his multiple sentences would run consecutively. The net result was a cumulative sentence of 292 years....

On appeal, my colleagues agree that AEDPA deference applies and they affirm on that basis. The majority acknowledges that the state court did not address Patsalis’s cumulative sentence — yet it asserts that the state court rejected Patsalis’s federal claim on the merits. The state court’s opinion is clear: it affirmed Patsalis’s individual sentences while expressly declining to consider whether his 292-year sentence was grossly disproportionate. Because the state court did not reach the merits of the claim Patsalis actually presented, there is no state-court decision to which we can defer and de novo review is the proper standard. Reviewing Patsalis’s claim de novo, I conclude that his cumulative sentence violates the Eighth Amendment. Accordingly, I respectfully dissent....

The facts and circumstances in the Supreme Court’s Solem and Graham opinions inescapably point to the conclusion that Patsalis’s 292-year sentence is one of the extremely rare cases that gives rise to an inference of disproportionality at the first step of the Eighth Amendment analysis. Patsalis was just 21 years old when he committed his offenses so he did not have a track record that had accumulated over the course of even the eleven years at issue in Solem. (Indeed, he had only been an adult for three years.) His offenses were non-violent and theft-related, and he stole random items (e.g., a drill, a flashlight, a telescope) with a total value of roughly $5,000. While four of his offenses involved entering private residences — admittedly serious conduct — eighteen of the twenty-two burglaries for which Patsalis received consecutive sentences did not involve entry into a home, but into a garage, a vehicle, and a detached shed. All of them were deemed “non-dangerous” by the trial court. As was the case in Graham, the sentence Patsalis received was multiples of the sentences imposed for murderers or rapists, yet Patsalis did not injure anyone and there is no indication that any violence or weapons were involved in any of his offenses.

Remarkably, in an era in which life sentences and lengthy term-of-years sentences keep reaching historic new levels (see reports discussed here and here), it has now been nearly two full decades since the Supreme Court has addressed an Eighth Amendment challenge to an adult term of years sentences.  Lockyer and Andrade were decided way back in 2003, and Justice Thomas is now the only member of SCOTUS who remains on the Court since those rulings were handed down. 

With SCOTUS transitions and the recent textualist and originalist turns in other jurisprudence, I would like to imagine Patsalis as the kind of case in which certorari might be granted and the Justices might look to finally clean up precedents that have not been a "model of clarity" and that seem quite inconsistent with the text and original understanding of the Eighth Amendment.  But, I should probably know better than to hope and expect that people sentenced to live in a cage for nearly three centuries will garner the kind of constitutional attention as praying football coaches and college admissions officers.

September 12, 2022 at 09:39 AM | Permalink


The problem is how to fit an evolving standards Eighth Amendment jurisprudence with an originalist Eighth Amendment jurisprudence.

Yes, the Founder would have found lengthy prison sentences unusual, but they also had little problem with the Death Penalty for most offenses that, today, get lengthy sentences because the death penalty for those offenses is deemed by modern, non-originalist, jurisprudence to be barred by the Eighth Amendment.

As my history of the common law professor frequently noted, as our criminal justice system has evolved (or devolved depending on your point of view), we have added significant procedural protections that were unknown to the Founders in the name of due process that cause lengthier trial and lengthier post-trial reviews of convictions and make certain punishments less likely. And, Newton's laws applies just as much to the criminal justice system, for every action, there is a reaction. As such, things that would have been very unusual in 1789 are more normal because of those changes.

Posted by: tmm | Sep 12, 2022 11:14:48 AM

I have thought for many years that once a sentence exceeds the offender's expected actuarial life by some factor (say 5%) it should automatically be converted to one of natural life. I fully agree with the argument that a sentence of 200+ years brings disrepute upon the judiciary but it is a disrepute that would easily be cured.

Posted by: Soronel Haetir | Sep 12, 2022 11:31:49 AM

Just to show that I'm no automatic hard-liner, I would happily agree to have his sentence sliced by 2/3. Must be getting soft in my old age.

Posted by: Bill Otis | Sep 12, 2022 8:51:51 PM

This cruel and unusual punishment. A life sentence for non-violent felonies? I wouldn't sentence him to more than 10 years in prison. Perhaps a split sentence of 20 serve 10 for residential burglaries. Non-residential burglaries would be 15 years probation and restitution.

Posted by: Anon | Sep 12, 2022 11:30:11 PM

Bill, hilarious.

Anon, is there a limit to the number of free crimes you would allow someone like Patsalis?

Posted by: TarlsQtr | Sep 13, 2022 10:42:46 AM

Tarls, A ten-year prison sentence is not a "free crime"

Posted by: John | Sep 13, 2022 12:23:19 PM

Hi Bill -
I think this may be a first for you - believing that a sentence should be reduced. I agree with you and I want to congratulate you on your compassion in believing that this overly long sentence should be corrected (10-20 years probably). Brett Miler

Posted by: Brett Miler | Sep 14, 2022 12:29:11 PM

TarlsQtr --

My brain is turning to mush. I knew it would happen when I got past 25.

Posted by: Bill Otis | Sep 14, 2022 9:48:04 PM


Of course it is. If he gets 10 years for 5 crimes and the same for 25, he received 20 free crimes.


With all due respect, I do not believe it is your mind that has turned to mush.

Posted by: TarlsQtr | Sep 15, 2022 9:53:58 AM

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