Earlier this month, the United States Court of Appeals for the Fourth Circuit decided United States v. Said, a fascinating case involving prosecution under the federal piracy law, 18 U.S.C. section 1651. In 2010, Somali pirates boarded a skiff and set out to seize a merchant ship in the Gulf of Aden. They attacked what they thought was a merchant ship, but turned out to be the USS Ashland, a Navy warship. Sailors and Marines on the Ashland responded to the attack, destroying the pirates’ skiff, killing one pirate and apprehending the others. The group of pirates were prosecuted in the Eastern District of Virginia under Section 1651. That statutes requires imposition of life imprisonment upon conviction. Among the interesting legal issues that were before the Fourth Circuit was whether mandatory life imprisonment for this piracy offense violates the Eighth Amendment’s ban on cruel and unusual punishments. As it turns out, the district court answered “yes,” and sentenced the defendants to non-life prison terms. The Government appealed the Eighth Amendment order.
The Fourth Circuit disagreed that life sentences here would violate the Eighth Amendment and remanded for resentencing (meaning the district court must sentence the defendants to life). According to the court, the proper standard is the narrow non-capital proportionality standard from Ewing v. California (which essentially adopted Justice Kennedy’s concurrence from Harmelin v. Michigan). Using that standard, the court found that piracy is sufficiently grave to merit mandatory life imprisonment, even if it does not involve the taking of a life.
Correct. But Said is also a notable example of just how deferential that the Supreme Court’s non-capital proportionality jurisprudence is, and should be. Yes, there are the Court’s recent missteps (my opinion) in Graham v. Florida and Miller v. Alabama, but those cases involved a category of defendant whose punishment was mitigated by his diminished culpability due to youth. Graham, like Said, was a non-capital, non-homicide case, but the Eighth Amendment issue in Graham did not turn solely on the gravity of the offense. It was, rather, Graham’s youth that precipitated the Court’s adoption of the two-pronged proportionality framework that had previously been reserved for death penalty cases only. See Roper v. Simmons. So nothing in Graham, nor Miller, suggests that the Court meant to water down the Ewing-Harmelin formulation for considering severe sentences in the non-capital, non-homicide context, where the defendant is an adult and where the challenge is not a categorical one. Maybe that is coming, but I do not read the cases as doing it just yet.
Even if one assumes that the Eighth Amendment bans grossly disproportionate sentences, this one, as Judge King’s opinion for the Fourth Circuit says, is not it. Despite the district court’s assertion that this was not “run-of-the-mill” piracy because “no victims were caused any physical harm,” the evidence showed that one of the pirates fired multiple shots and actually struck the Ashland, prompting the Americans to return fire and successfully end the attack upon them. If Harmelin’s LWOP sentence for a first offense of merely possessing more than 650 grams of cocaine is constitutionally permissible under the Eighth Amendment, then surely a life sentence for a violent piracy attack is permissible.
Judge Davis’s concurrence is worth noting. In it, he suggests that Congress should amend the law to allow for some sentencing discretion, accounting for the fact that some piracy offenses may be less serious than others (and therefore not all piracy defendants deserve life in prison). There may be something to be said for that suggestion, though (as Judge Davis properly recognizes), that would be a matter of legislative grace, not Eighth Amendment mandate. In this narrow sense, Said fits comfortably into the contemporary debate about criminal justice “reform,” meaning, generally, less severe federal sentencing. While I’m not on board with much of the reform agenda, better that sentencing reductions be done in the legislative arena rather than constitutionalized by the courts using the Eighth Amendment.