We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
DOES FIRST STEP OPEN WINDOW FOR 8TH AMENDMENT CLAIM ON HARSH GUN SENTENCES?
Ohio State University law professor Doug Berman asked this interesting question in a post on his Sentencing Law and Policy blog last week.
Prof. Berman noted that First Step Act Sec. 403, “described as a ‘clarification of Section 924(c),’ eliminates the required “stacking” of 25-year mandatory minimums for multiple 924(c) counts at the same time… Sadly, Congress did not make Section 403 of the First Step Act retroactive, and thus defendants previously subject to these extreme stacked sentences will get no direct relief from the new Act.”
In 2010, Wendell Rivera–Ruperto was paid by undercover FBI informants to serve as “armed security” at six fake drug deals, and received a 162-year sentence, of which 130 years were for his six stacked 924(c) convictions. In a 1st Circuit decision last year, Wendell was denied rehearing en banc despite one judge’s complaint that courts “have no choice but to approve mandatory ‘forever’ sentences… so long as they can hypothesize a rational reason for the legislature to have thought that the underlying criminal conduct was [so] serious…” The dissenting judge hoped for Supreme Court review.
SCOTUS has incorporated a proportionality analysis into the cruel and unusual punishment analysis required in capital cases. In Harmelin v. Michigan, the defendant asked the Court to extend the reach of that analysis to noncapital cases such as his life sentence for 650 grams of cocaine. Five Justices agreed that Harmelin’s sentence was not unconstitutionally cruel and unusual, but six Justices agreed that the Cruel and Unusual Punishment Clause bore some kind of proportionality analysis. Among those six, three supported a proportionality principle that deferred to legislative judgments, while three others supported a more searching proportionality analysis that would have struck down the mandatory life sentence.
This Friday, the Justices will consider whether to review the case. “Notably, and not surprisingly,” Prof. Berman wrote, “the feds now say in opposition to cert that passage of the First Step Act reduces the important of the case: ‘future defendants in petitioner’s position will not be subject to mandatory consecutive sentences of at least 25 years [and the] question presented by his case therefore has diminishing significance’.” But “the fact that the 8th Amendment is supposed to take guidance from an ‘evolving standards of decency’ and be responsive to a ‘national consensus’ against a sentence, I strongly believe the enactment of the First Step Act primarily operates to make Wendell Rivera–Ruperto’s constitutional claim even more substantively potent.”
Justice Kennedy’s retirement last summer creates a window of opportunity for advocates to urge overturning (or cutting back) Harmelin’s 8th Amendment precedent. “Thus,” Berman said, “I am rooting super hard for the Justices to grant cert in Rivera–Ruperto.” Grant of cert in this case, which Berman calls “potentially the biggest non-capital Eighth Amendment case in a generation,” might open other stacking cases to 8th Amendment review.
Sentencing Law and Policy, Doesn’t the FIRST STEP Act add juice to Eighth Amendment challenge to extreme stacked 924(c) sentence in Rivera-Ruperto? (Feb. 10)
Rivera-Ruperto v. United States, Case No. 18-5384 (Supreme Ct.)
– Thomas L. Root