This week, the United States Court of Appeals for the Fourth Circuit decided United States v. Under Seal, which provides ample reason to continue questioning the Supreme Court’s egregious errors in Roper v. Simmons and Miller v. Alabama. The Under Seal opinion is here.
The defendant is a juvenile who was, according to the court, “a few months shy of his eighteenth birthday.” Truth is, he was 17 years and 8 months. According to the Government, he was also a member of MS-13, and was accused of directly helping others in MS-13 to kill a fellow gang member who had been suspected of snitching. The Government also explained that the victim had actually been lured to a Falls Church, Virginia park on the pretext of submitting to a calenton, which involves beating a member while others count to 13. This was, according to the Government’s description of the crime, an especially brutal killing involving a knife and a machete. The defendant allegedly helped the others in holding down the victim, stabbing the victim in the stomach, and slashing the victim’s jaw and neck using the machete. The gang then buried the victim’s body in the park. Fearing that the body would be found, the defendant then helped others in the gang dig up and rebury the body.
The Government sought to prosecute the defendant as an adult for murder in aid of racketeering (MS-13, of course, being the relevant racketeering enterprise). Under the murder provision of the Violent Crimes in Aid of Racketeering (VICAR) statute, 18 U.S.C. 1959, however, the only available punishment for the defendant would be death or life imprisonment. The defendant argued that it would be unconstitutional to transfer him from the juvenile system to the adult system because either of the two available punishments – death or mandatory life – would violate the Eighth Amendment when applied to a juvenile. Of course, the defendant is correct. Roper held that the death penalty cannot be imposed upon a person who commits a capital crime before age 18, and Miller held that juvenile homicide defendants cannot be sentenced to a mandatory term of life without parole for crimes committed before 18. The district court and the Fourth Circuit agreed that the transfer would be unconstitutional.
The Government tried to argue severability, but the Fourth Circuit rejected those arguments.
The logical conclusion of Under Seal is that – because of Roper and Miller – no juvenile defendant can ever be prosecuted in federal court for murder in aid of racketeering. Given the number of juveniles involved in major gang crimes, including criminal homicides, this is not a desirable status quo for the federal criminal law. Punishment as a juvenile delinquent for such crimes – just think about the alleged murder in this case, as an example – does not serve the ends of justice nor would it generally serve the purposes of the criminal law. And while it is true that there are other crimes, which allow for punishments of less than mandatory life, that the Government could seek against juveniles, VICAR is an important statute in fighting very serious crimes, including murders, committed by gangs and organized crime. Unlike RICO, VICAR allows for the death penalty (for an adult offender, of course). Also unlike RICO, VICAR does not require the Government to prove a pattern of racketeering activity, which makes it a desirable statute for isolated violent crimes. It would therefore be unfortunate if the Government was permanently forbidden from using VICAR to target gang-related murders committed by juveniles.
Accordingly, and consistent with the Fourth Circuit’s implied invitation in Under Seal, Congress should amend VICAR to state that, in the case of a juvenile defendant convicted of murder in aid of racketeering after an appropriate transfer proceeding, the punishment shall be for any term of years. Congress could even add a mandatory minimum (say, ten years), as long as it avoids mandatory life.
Absent this fix, the result is a juvenile delinquency adjudication for allegedly slicing up a guy with a knife and machete and burying him in a park.