Tag Archives: 8th Amendment

3rd Circuit Gives Amateur Inmate Litigant a Mulligan – Update for November 7, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

DO-OVER

Thomas Petoff, a federal prisoner confined to a wheelchair, filed an administrative remedy after he was denied a wheelchair cushion. He said that in retaliation, he was thrown in the Special Housing Unit (SHU), had his wheelchair confiscated, suffered assaults and humiliating treatment, was denied food (including his “religious diet”), medical care, recreation, and law library access, and ultimately lost good-time credits and was fined. He sued.

He threw every claim the jailhouse lawyers in the prison library told him to throw at the defendant. It was a hodgepodge of high-falutin’ legalese used by someone who had no idea what he was doing.

The district court construed Tom’s pro se complaint as raising 1st, 5th, and 8th Amendment claims under Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics. That wasn’t enough to keep the case from being dismissed with prejudice. For good measure, the Court said Tom’s complaint was barred by Heck v. Humphrey to the extent that his claims undermined disciplinary sanctions.

It was kind of a ‘get out and don’t come back’ dismissal.

Last week, the 3rd Circuit largely agreed on the Bivens and Heck analyses, but held that pro se litigants must be given an opportunity to amend to pursue non-futile statutory theories—here, the Rehabilitation Act and Religious Freedom Restoration Act.

As for the Bivens claim, the Circuit ruled that Tom’s allegations failed in light of the Supreme Court’s decision last summer in Goldey v. Fields, that foreclosed Bivens actions for 8th Amendment excessive force claims.

To the extent that Tom’s claims might call into question the validity of the disciplinary proceeding findings that he had violated prison rules, the 3rd said those claims are barred by the Heck v. Humphrey favorable-termination rule. That rule holds that to recover damages for an allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged, declared invalid by a state court, or called into question by a federal court on habeas corpus.

However, the Circuit said, Tom got a mulligan on some of his claims. The 3rd said that the district court failed to address Tom’s Americans with Disabilities Act (ADA) and Rehabilitation Act claim, as well as his later-clarified RFRA “religious diet” claim. Although Tom did not plead those claims very well, the 3rd said that an amendment cleaning up those claims would not necessarily have been futile. It remanded Tom’s suit to the district court to give him a fair chance to amend.

Petoff v. Delmonico, Case No. 24-2933, 2025 U.S.App. LEXIS 27737 (3d Cir. October 23, 2025)

~ Thomas L. Root

Supremes Dump on Bivens As They Head for the Beach – Update for July 7, 2025

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THE BEATINGS WILL CONTINUE…

Time was, the joke went ‘the beatings will continue until morale improves.’ Now, it’s just ‘the beatings will continue…’

Bureau of Prisons inmate Andrew Fields alleged that guards at USP Lee repeatedly assaulted him after restraining him and placing him in solitary confinement, including ramming his head into the concrete wall and attacking him with a security shield.

Arguing that the COs’ excessive force violated his 8th Amendment right to be free from cruel and unusual punishment, Andy sued under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the 1971 Supreme Court ruling that permitted a man to sue for a 4th Amendment violation when federal agents performed a warrantless search of his home and then strip-searched him at a courthouse. Bivens established the right implied in the Constitution to sue government employees for violating individual constitutional rights.

By the time the 1980s came around, the Supreme Court started to have second thoughts about Bivens. Since then, the Court has left Bivens standing in name only. In 2017, for example, the justices ruled in Ziglar v. Abbasi that Bivens remedies apply only to unreasonable searches and seizures by federal agents rather than civil rights claims based on the conditions of confinement.

In 2022, SCOTUS limited Bivens further in Egbert v Boule. There, the Court ruled that Bivens could not apply to a claim if the case involved an “extension” of Bivens into a “new context” that is “different in a meaningful way from previous Bivens cases decided by this Court,” and whether “special factors… counsel hesitation about granting the extension.

For the “special-factors” analysis, the Egbert Court asked broadly whether judicial intrusion into a “given field” is inappropriate. The question was whether it was appropriate to imply a Bivens action should apply to Border Patrol agents generally. Because border protection implicates national security, the Court ruled, it was more appropriate to leave the authorization of any remedy to Congress.

While the facts in Andy’s case were disputed, the officers argued that they were carrying out their duties in a high-risk environment and that allowing lawsuits like this to proceed would open the door to constant litigation, potentially interfering with prison safety and discipline. Andy was thrown out of district court, which held that Ziglar and Egbert meant he could not sue BOP correctional officers just because they repeatedly kicked the crap out of him. But on appeal, the 4th Circuit disagreed, finding that no “special factors counseled against extending Bivens” to a case based on excessive force by prison guards.

In last week’s unsigned opinion, the Supreme Court reinstated the District Court dismissal. “This case arises in a new context, and ‘special factors’ counsel against recognizing an implied Bivens cause of action for 8th Amendment excessive-force violations. To begin with, Congress has actively legislated in the area of prisoner litigation but has not enacted a statutory cause of action for money damages. In addition, extending Bivens to allow an 8th Amendment claim for excessive force could have negative systemic consequences for prison officials and the ‘inordinately difficult undertaking’ of running a prison. Moreover,” SCOTUS said, referring to the BOP administrative remedy system, “an alternative remedial structure already exists for aggrieved federal prisoners. The existence of such alternative remedial procedures counsels against allowing Bivens suits even if such procedures are ‘not as effective as an individual damages remedy.”

Andy’s lawyer stated in a subsequent press release, “Forbidding courts from redressing a constitutional violation is wrong, and it is especially dangerous in this day and age to immunize federal executive officials from accountability for their actions.”

Goldey v. Fields, Case No. 24-809, 2025 U.S. LEXIS 2572 (June 30, 2025)

Reason, Federal Prison Guards Allegedly Beat an Inmate to a Pulp. The Supreme Court Says He Can’t Sue (July 3, 2025)

 Thomas L. Root

Keeping Score – Update for January 2, 2025

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SOME NUMBERS TO START THE NEW YEAR

funwithnumbers170511The Price of an Overnight Stay in an Econolodge: The Department of Justice is required to regularly publish figures showing how much it costs to keep a federal prisoner, the so-called Cost of Incarceration Fee.

The DOJ has announced that the average annual COIF for a Federal inmate housed in the Bureau of Prisons or a non-BOP facility in FY 2023 was $44,090 ($120.80 per day). The average annual COIF for a Federal inmate housed in a Residential Reentry Center (halfway house) for FY 2023 was $41,437 ($113.53 per day).

Federal Register, Annual Determination of Average Cost of Incarceration Fee (COIF) (December 6, 2024), 89 FR 97072

prisoners221021Federal Prisoners by the Numbers: The DOJ’s Bureau of Justice Statistics released some interesting numbers on the state of the federal prison population after the fifth year of the First Step Act (for Calendar Year 2023).

As of December 31, 2023,

• the federal prison population had decreased about 2% the year before, from 158,637 to 155,972;

• 8,388 military veterans were incarcerated in the BOP, more than 5% of BOP’s total;

• The number of non-U.S. citizens in federal prison stood at 22,817 (14.6% of the prison population), down from both prior years;

• The average daily special housing unit (SHU) population was 11,974, an 18% increase from 2022 and a total of 7.7% of the BOP population;

• In 2023, BOP staff were physically assaulted by federal prisoners 872 times, resulting in only six serious injuries and only three prisoner prosecutions;

• About 54% of the 143,291 persons in federal prison who had been assessed with the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN) tool were classified as minimum or low risk for recidivism, about 26% as high risk and about 19% as medium risk;

• About 52% of male federal prisoners were classified as minimum or low risk for recidivism, compared to about 82% of female federal prisoners;

• About 60% of black and 58% of American Indian or Alaskan Native federal prisoners were classified by PATTERN as having a medium or high risk of recidivism, compared to about only 36% of white and 25% of Asian, Native Hawaiian, or Pacific Islander federal prisoners;

• 83% of federal prisoners between 55 to 64 and 94% of those age 65 or older were classified by PATTERN as having a minimum or low risk of recidivism.

Bureau of Justice Statistics, Federal Prisoner Statistics Collected Under the First Step Act, 2024 (December 11, 2024)

Don’t Like Them Odds: Business Insider has published a remarkable series on prisons, which I will write about in the coming weeks. For now, it’s worth noting the sobering odds against any prisoner success in litigation over serious claims of sexual assault, retaliatory beatings, prolonged solitary confinement, and untreated cancers.

Prisoners lose (either in court or by failing to win any reasonable settlement) 85% of the time.

longodds191008While nationally, about 75% of all civil suits (and half of non-prisoner suits settle), only 14% of prisoner 8th Amendment cases do. Business Insider said, “Many of the settlements were sealed. Of the rest, none involved an admission of wrongdoing by prison officials. BI was able to identify just six cases that settled for $50,000 or more; half of those… involved prisoner deaths.”

The non-sealed settlements were for “modest amounts,” BI said. “An Oregon prisoner received $251 over a claim that she was sexually assaulted by another prisoner and then pepper-sprayed by a guard. A Nevada prisoner got $400 on a claim that guards beat and pepper-sprayed him while he was in restraints. A New York prisoner won $2,000 for claims that he suffered debilitating pain while prison officials delayed treating his degenerative osteoarthritis.”

In only 11 cases — less than 1% of the 1,488 cases from 2018-2022 that BI studied – did the plaintiffs win relief in court.

Business Insider, The 1% (December 26, 2024)

– Thomas L. Root

10th Circuit Deliberately Indifferent to Bivens – Update for December 5, 2024

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10TH CIRCUIT KILLS BIVENS ‘DELIBERATE INDIFFERENCE’ CLAIM

The 10th Circuit minced no words: “The Supreme Court’s “abrogative process of Bivens has been ‘gradual, but relentless, such that the “‘right answer’ to whether to recognize a Bivens cause of action will always be no… Bivens is now all but dead.”

BivensdeadDustin Rowland’s lawsuit was pretty plain vanilla. He sued various BOP officials, claiming they were deliberately indifferent to his serious medical needs by repeatedly denying his requests for hernia surgery and post-operative treatment, seeking damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. It is the kind of medical indifference suit that inmates file across the country all the time.

Or used to.

On November 19th, the 10th Circuit held that under the 2022 Supreme Court decision in Egbert v Boule, John’s case presented an application of Bivens that was different from the situations recognized as raising a valid Bivens claim. Given the “expressed caution about extending the Bivens remedy, even significant parallels to one of the Court’s previous Bivens cases” may not be enough to show that a case arises in the same context,” the 10th said Dustin could not seek damages for any 8th Amendment violations he had suffered.

Dustin’s case was materially different from the one prior case that SCOTUS – back in its salad days – had held raised a valid Bivens claim. In the decision in Carlson v. Green, the record showed that the inmate victim had died because of deliberate indifference. “Small differences can easily satisfy the new-context inquiry,” the 10th said.

He was dead, Dustin. You’re not. Viva la difference.

bivensalive241205The 10th’s holding drives a stake through virtually any Circuit Bivens 8th Amendment claim and probably will embolden the Government (like it needs any such encouragement to stretch precedent enough to deny an aggrieved prisoner a remedy for legitimate constitutional claims) to make similar arguments in other Circuits. If any circuit split results, the Supremes would settle it (and probably not in favor of the prisoner).

Rowland v. Matevousian, Case No. 23-1343, 2024 U.S.App. LEXIS 29406 (10th Cir., November 19, 2024)

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 US 388 (1971)

Egbert v. Boule, 596 U.S. 482 (2022)

Carlson v. Green, 446 U.S. 14 (1980)

– Thomas L. Root

A Bedtime Story About the Eighth Amendment – Update for April 4, 2024

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TO SLEEP, PERCHANCE TO DREAM

You think you have it bad…

sleep240404Mike Garrett has been in the Texas prison system for 30 years. For the last ten years, his prison units have afforded him at most 3½ hours of total sleep— and at most 2½ hours of continuous sleep per night. Bedtime is 10:30 pm and wakeup is at 2 am, with a count at 1 am during which inmates must be awake to call out their names.

After his complaints fell on deaf ears, Mike sued, invoking the 8th Amendment’s ban on cruel and unusual punishment. The district court threw out the suit, holding that Mike didn’t prove a substantial risk of serious harm because he didn’t show a cause-and-effect relationship between the sleep deprivation and his health complaints (migraines, seizures, vertigo, a skin condition, edema, hypertension and kidney disease). Second, the district judge said Mike hadn’t established deliberate indifference by prison officials because the schedule was based on a legitimate penological interest.

There’s little doubt that sleep deprivation is hazardous to heart. Last October, Michele Deitch and Alycia Welch with the University of Texas Prison and Jail Innovation Lab gave a presentation to the International Corrections and Prisons Association on the harmful sleeping conditions in prisons, the Texas Observer reports. There, the researchers previewed findings from a forthcoming report entitled, “The Nightmare of Sleep in Prison.” Among their recommendations was an increase in dedicated sleep time. They defined a healthy amount as at least six hours nightly.

sleeptorture240404Last week, the 5th Circuit reversed, holding that to satisfy the objective component of an 8th Amendment claim, “a prisoner need only show a substantial risk of serious harm—not actual harm. Second, the district court held that, because the Dept had “legitimate penological purposes” for implementing the schedule, and because the Department did not engage in conduct designed to intentionally inflict sleep deprivation on inmates, Garrett failed to satisfy the subjective element of his 8th Amendment claim. But the Supreme Court has clarified that a prison’s penological purpose has no bearing on whether an inmate has shown deliberate indifference for purposes of an 8th Amendment claim.”

Garrett v. Lumpkin, Case No 22-40754, 2024 U.S. App. LEXIS 6934 (5th Cir., March 22, 2024)

ABA Journal, 5th Circuit rules for prisoner allowed to sleep no more than 3.5 hours per night (March 26, 2024)

Texas Observer, Some Texas Prisoners Allowed Only Four Hours Of Sleep A Night, Lawsuit Say (April 2, 2024)

– Thomas L. Root

6th Circuit FCI Elkton Holding a Mixed Bag – Update for June 11, 2020

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THREE WINS AND A LOSS AT THE 6TH CIRCUIT

winloss200611On the third try, the Federal Bureau of Prisons finally succeeded in getting a higher court to issue a stay in the FCI Elkton (Ohio) habeas corpus/8th Amendment case, stopping for the moment the U.S. District Court for the Northern District of Ohio’s injunction demanding that the BOP identify and either transfer or release medically vulnerable inmates.

On Tuesday, the U.S. Court of Appeals for the Sixth Circuit ruled that the preliminary injunction – which can only issue if a moving party can show irreparable harm and likelihood that it will succeed on the merits of the case – should be set aside. This does not mean that the inmate plaintiffs in the class action cannot win, but I suspect the BOP is betting that time (and attrition of the medically vulnerable inmates, as one after another comes down with COVID-19), will render the whole lawsuit moot before it’s done.

Technically, the lawsuit is a petition for writ of habeas corpus, addressed to unconstitutional conditions of confinement. The remedy in a habeas action is release of the prisoner or abatement of the unconstitutional condition. Here, the prisoners claimed that the BOP was violating the 8th Amendment, exacting “cruel and unusual punishment” by the Elkton administration’s “deliberate indifference” to a deadly medical condition, COVID-19.

plague200406In a 2-1 decision, the 6th Circuit panel struck down the district court’s order to thin the ranks of the 2,000 inmates at Elkton (located in Lisbon, Ohio, about 65 miles southeast of Cleveland), where more than a quarter have tested positive for the coronavirus and 19 inmates have died. U.S. District Judge James Gwin ruled in April that the administration was not doing enough to protect inmates, and ordered that the BOP transfer or release elderly or medically compromised prisoners.

“Deliberate indifference” has two components, one objective and one subjective. The Circuit ruled that while the plaintiffs had shown that objectively, COVID-19 was a genuine medical danger at the facility, they were unlikely to prove that the steps the BOP had taken as of April 22 — such as screening for symptoms, limiting visitation, increasing cleaning and providing masks — were insufficient to raise the administration’s response above the “deliberate indifference” standard. The majority on the panel agreed that the BOP’s “actions show it has responded reasonably to the risk posed by Covid-19 and that the conditions at Elkton cannot be found to violate the Eighth Amendment.”

Chief Judge R. Guy Cole Jr. dissented, writing that he was “left with the inescapable conclusion that the BOP’s failure to make use of its home confinement authority at Elkton, even as it stared down the escalating spread of the virus and a shortage of testing capacity, constitutes sufficient evidence for the district court to have found that petitioners were likely to succeed on their Eighth Amendment claim.”

habeasB191211Inmate advocates were disappointed with the ruling, but I think there were three wins in the decision for inmates. First, the BOP has argued in this case as well as in other pending cases elsewhere that inmates could not proceed on habeas corpus, but instead had to use a cumbersome procedure that would not have permitted as a remedy the release of inmates. The Court roundly dismissed this argument, holding that the claim being made can proceed on a 28 USC § 2241 habeas corpus petition.

Second, the Court swept aside BOP arguments that the inmates had to “exhaust” administrative remedies under the Prison Litigation Reform Act. This would have required each inmate plaintiff to file administrative remedies to the warden, then the regional BOP office, and final with the BOP in Washington, a cumbersome and largely futile procedure that would have consumed six months before a suit could even be brought.

Finally, the Court held that

“petitioners have provided evidence that they are ‘incarcerated under conditions posing a substantial risk of serious harm.’ The COVID-19 virus creates a substantial risk of serious harm leading to pneumonia, respiratory failure, or death. The BOP acknowledges that ‘[t]he health risks posed by COVID-19 are significant.’ The infection and fatality rates at Elkton have borne out the serious risk of COVID-19, despite the BOP’s efforts. The transmissibility of the COVID-19 virus in conjunction with Elkton’s dormitory-style housing—which places inmates within feet of each other—and the medically-vulnerable subclass’s health risks, presents a substantial risk that petitioners at Elkton will be infected with COVID-19 and have serious health effects as a result, including, and up to, death. Petitioners have put forth sufficient evidence that they are ‘incarcerated under conditions posing a substantial risk of serious harm’.”

tryhard200611This is a powerful foil to the government’s oft-repeated claim in opposing compassionate release motions that the BOP is adequately meeting inmate medical needs despite COVID-19, and that there is thus no need to protect vulnerable inmates by compassionate release under 18 USC § 3582(c)(1). In other words, the 6th said that the BOP was trying, but that it was not succeeding.

That may save the BOP from 8th Amendment claims – at least at the preliminary stage of litigation such as the Elkton case – but it refutes any government claim that no one needs to go home, because the BOP is keeping everyone safe.

Wilson v. Williams, Case No. 20-3447, 2020 U.S. App. LEXIS 18087 (6th Cir. June 9, 2020)

– Thomas L. Root

4th Circuit Strikes Blow Against Lousy Prison Medical Care – Update for September 12, 2019

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4TH CIRCUIT HOLDS OFFICIAL’S KNOWLEDGE OF POLICIES AND DENIAL OF GRIEVANCES CAN ESTABLISH 8th AMENDMENT DELIBERATE INDIFFERENCE

hepc190912The 4th Circuit handed down a fascinating 8th Amendment opinion last week that established a prison’s obligation to treat hepatitis C, as well as expanding on the universe of officials subject to 8th Amendment claims.

For those of you who dozed through high school government class, the 8th Amendment prohibits cruel and unusual punishment. The Courts have defined that over the years to include the deliberate indifference of prison officials to serious medical needs of inmates.

Carl Gordon, a Virginia state inmate, had hepatitis C. The Virginia prison system had a policy of not treating hep C in people eligible for parole or close to the door, purportedly because they might leave in the middle of treatment, which posed a risk to their health. Carl was eligible for discretionary parole in 2008, despite the fact his actual “out” date was in 2028, 20 years later. He repeatedly filed administrative grievances demanding treatment for hepatitis C and warning of the deadly effects of the disease if left untreated.

The prison health director, who was familiar with the Virginia policy on hep C treatment, kept denying Carl’s grievances, telling Carl simply to go to sick call (despite the fact the director knew that at sick call, Carl would be refused hep C treatment because of the policy).

Finally, this “dog chasing its tail” saga reached federal court.

dogtail190912“By the very nature of the health director’s position,” the Circuit said, “he was personally involved in reviewing and enforcing the policy that prevented Carl Gordon from receiving HCV treatment… And the health director’s consistent failure to revise the Guidelines to remove the parole-eligibility exclusion constitutes personal involvement in the denial of HCV treatment for Gordon… it is inconsistent with the 8th Amendment for a prison official to withhold treatment from an inmate who suffers from a serious, chronic disease until the inmate’s condition significantly deteriorates.”

Gordon v. Schilling, 2019 U.S. App. LEXIS 26676 (4th Cir. Sept. 4, 2019)

– Thomas L. Root

We’ve Got the Shorts – Update for August 29, 2019

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THE SHORT ROCKET

Inmate has Right to Video at DHO

rocket190620The 4th Circuit held last week that an inmate defending himself in a disciplinary proceeding, where he could lose good time as a punishment, has a qualified right of access to BOP video surveillance evidence and the qualified right to compel official review of such evidence. The Court relied on Wolff v. McDonnell, a 1974 Supreme Court decision defining the extent of inmates’ procedural due process rights in disciplinary proceedings.

Lennear v. Wilson, 2019 U.S. App. LEXIS 25340 (4th Cir. Aug. 23, 2019)

Transgender Inmate Has 8th Amendment Right to Surgery

The 9th Circuit last week held that an Idaho state inmate had shown that he suffered from gender dysphoria (believed he was a different gender than his body reflected), that his need for surgery to change his gender was a serious medical need, and that prison authorities had not provided that treatment despite knowledge of his ongoing and extreme suffering and medical needs. The Court rejected the State’s position that there was a “reasoned disagreement between qualified medical professionals. The Court emphasized that its analysis was individual to the inmate plaintiff, “and rested on the record of this case.”

Edmo v. Corizon, Inc., 2019 U.S. App. LEXIS 25330 (9th Cir. Aug. 23, 2019)

Murder Most Foul… But Not Violent

violent170315The 9th Circuit last week also held that 2nd-degree murder (18 USC §§ 1111 and 1153) is not a crime of violence that can support an 18 USC § 924(c) conviction. The Court held that because 2nd-degree murder can be committed recklessly, it does not categorically constitute a “crime of violence” under the elements clause (924(c)(3)(A)), and under the Supreme Court’s June United States v. Davis decision, the crime likewise cannot constitute a crime of violence under the residual clause.

Begay v. United States, 2019 U.S. App. LEXIS 25196 (9th Cir. Aug. 22, 2019)

Serving Mankind Has Its Limits

The 2nd Circuit ruled last week that a supervised release condition that a defendant perform 300 hours of community service a year during supervision exceeded the Guidelines and was not reasonably related to any of the applicable purposes of sentencing listed at 18 USC § 3553(a), and involved a “greater deprivation of liberty than needed to effectuate the goals of sentencing.” The Court concluded that USSG §5F1.3 advised sentences to not call for more than 400 hours of community service as a condition of supervised release.

Hoodie reading 'Crime and community service'.What’s more, the community service, imposed on a defendant convicted of insurance fraud, was not reasonably related to any relevant sentencing factor and involved a greater deprivation of liberty than is reasonably needed to achieve the purposes of sentencing. The district court observed the defendant lived with his parents, has a young daughter, worked as an Uber and Lyft driver, and “was convicted of two serious crimes of fraud which adversely impacted the community at large.” But, the 2nd Circuit complained, the sentencing court did not explain how the defendant’s “particular circumstances‐‐his criminal history, his cooperation, the nature of his offense‐‐reasonably related to the need for community service.”

United States v. Parkins, 2019 U.S. App. LEXIS 24563 (2nd Cir. Aug. 19, 2019)

– Thomas L. Root

Unintended Consequences – Does First Step Act Open Up 8th Amendment Argument? – Update for February 18, 2019

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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.”

Sentencestack170404In 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.

cruel190218This 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

“Public Shaming” Leads to 8th Amendment Sex Registration Holding – Update for September 8, 2017

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DISTRICT COURT HOLDS COLORADO SEX REGISTRATION VIOLATES 8TH AMENDMENT

The registration systems for ex-inmates with sex offenses is state based. Congress decreed in the Sex Offender Registration and Notification Act (SORNA) that every state would have a system, and then imposed a federal requirement on people convicted of sex offenses that they must register under penalty of law.

whip170911The public loves state registration laws, because they like to identify and shame ex-offenders for crime committed years before, running them out of housing, hounding them out of jobs, and even trying to break up their families. Sounds like punishment? The Supreme Court said not, in Smith v. Doe, which in 2004 held that Alaska’s Sex Offender Registration Act (“SORA”) was not punitive.

For a decade since it was handed down, Smith v. Doe shut down constitutional challenges to state SORAs. In the last few years, however, federal courts have been willing to recognize that the landscape has changed.

A little more than a week ago, a Colorado district court recognized what anyone who has faced the burdens, obstacles, and dangers of life on the offenders registry already knows: the punitive impact of the state’s SORA far outweighs any value it might have in protecting the public. The district judge held that Colorado’s registration statute violates the 8th Amendment by imposing cruel and unusual punishment, and violates a registrant’s 14th Amendment procedural and substantive due process rights.

The Colorado court held that Smith v. Doe’s “words ring hollow that the state’s website does not provide the public with means to shame the offender when considering the evidence in this case.” The Supreme Court “did not foresee the development of private, commercial websites exploiting the information made available to them and the opportunities for ‘investigative journalism’ or “the ubiquitous influence of social media.”

shaming170911The district court noted that Justice Kennedy, who wrote Smith v. Doe, said in last spring’s Packingham v. North Carolina decision that “the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system is… not an issue before the Court.” But it was in front of the Colorado district court, which said, “the evidence demonstrates that the very real restraints on Plaintiffs’ abilities to live, work, accompany their children to school, and otherwise freely live their lives are not simply a result of the crimes they committed, but of their placement on the registry and publication of their status…” Colorado’s SORA looks “far more like retribution for past offenses” than a public safety regulation, the Court said.

This decision joins similar court ruling in Alaska, Maine, Michigan, New Hampshire, Oklahoma, and Pennsylvania. Given the significance of SORNA and the state schemes, Supreme Court review within the next few years is probable.

Millard v. Rankin, Case No. 1:13-cv-02046 (D.Colo., Aug. 31, 2017)

– Thomas L. Root

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