UNITED STATES, Appellee, v. WENDELL RIVERA-RUPERTO, a/k/a Arsenio Rivera, Defendant, Appellant.
Nos. 12-2364, 12-2367, 13-2017
United States Court of Appeals For the First Circuit
February 27, 2018
Before Howard, Chief Judge, Torruella, Lynch, Lipez, Thompson, Kayatta, and Barron, Circuit Judges.
Entered: February 27, 2018
Pending before the court is a petition for rehearing or rehearing en banc in United States v. Rivera-Ruperto, No. 12-2364, 12-2367 and a petition for rehearing or rehearing en banc in United States v. Rivera-Ruperto, No. 13-2017. The petitions for rehearing having been denied by the panel of judges who decided the cases, and the petitions for rehearing en banc having been submitted to the active judges of this court and a majority of the judges not having voted that either case be heard en banc, it is ordered that the petitions for rehearing and the petitions for rehearing en banc be denied.
BARRON, Circuit Judge, concurring in the denial of rehearing en banc, joined by HOWARD, Chief Judge, and TORRUELLA, LYNCH, THOMPSON, and KAYATTA, Circuit Judges. The bulk of the 161-year and ten-month prison sentence that Wendell Rivera-Ruperto challenges -- 130 years of it to be exact -- was imposed for his six convictions under
Thus, in consequence of Rivera‘s multiple convictions for his involvement in this one sting operation, Rivera was required to receive a punishment that seemingly could have been more severe only if it had required his death. And that is so even though this case is replete with factors that -- under a discretionary sentencing regime -- would surely have been relevant to a judge‘s individualized rather than arithmetical assessment of whether what Rivera did should not only be punished severely but also deprive him (absent a pardon or commutation) of any hope of ever enjoying freedom again.2
I do think it is important to say something, however, about that precedent and why I believe the Supreme Court should revisit it. And so, in what follows, I explain my reasoning.
I.
The body of precedent that controls here concerns the meaning of the Eighth Amendment, which provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Solem specified the criteria that bear on whether the length of a prison term is impermissibly out of proportion to the seriousness of the offense (or offenses) of conviction. Solem emphasized that “no single criterion can identify when a sentence is so grossly disproportionate that it violates the Eighth Amendment,” Solem, 463 U.S. at 290 n.17, but that “a combination of objective factors can make such analysis possible.” Id. Specifically, Solem held that:
[A] court‘s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.
Solem appeared to contemplate a holistic analysis, in which the assessment of each of these three criteria would inform the assessment of the others. That approach, notwithstanding its inherently (and appropriately) deferential nature, had teeth. In fact, in Solem, the Court concluded on the basis of this holistic assessment that “the Eighth Amendment proscribes a life sentence without the possibility of parole for a seventh nonviolent felony,” id. at 279, in a case in which that discretionary sentence was triggered by a recidivist defendant‘s conviction -- after he had been punished for his prior felony convictions -- for uttering a “no account” check for $100. Id. at 303.
Thus, if Solem were the last word, I would have to assess in the following way whether Rivera‘s mandatory life-without-parole sentence for multiple felonies -- each of which is seemingly nonviolent, though hardly minor in nature -- comports with the Eighth Amendment.6 I would have
A.
The first Solem criterion requires a relatively abstract inquiry. In performing it, a reviewing court must consider the gravity of the offense “in light of the harm caused or threatened to the victim or society[] and the culpability of the offender.” Id. at 292. A reviewing court must then consider the harshness of the sentence in light of the gravity of the offense. Id.
Solem details how a court should go about the task of assessing a crime‘s severity for purposes of applying this first criterion. Of direct relevance here, Solem makes clear that drug crimes are serious, even though they do not inherently require proof of any harm having been done to any identifiable victim.
That guidance from Solem matters in this case.
Thus, we are undoubtedly dealing with the repeated commission of a serious crime under Solem‘s reasoning. We are also dealing with a type of crime that is certainly more serious than the crime of uttering a “no account” check that triggered the sentence that Solem struck down. 463 U.S. at 281.
Indeed, Solem emphasized that the fact that an offense does not actually require proof that the defendant inflicted any bodily harm against any identifiable victim generally makes that offense less serious than an offense that does. 463 U.S. at 292-93. Thus, while Solem does identify felony murder with no intent to kill as an example of the type of grave offense for which a life-without-parole sentence would be constitutional, id. at 291-92 & n.15 (citing Enmund v. Florida, 458 U.S. 782, 795-96 (1982)), it is of some significance under Solem that Rivera‘s crimes did not require the government to prove that he engaged in conduct that foreseeably resulted in the death of, or bodily injury to, any particular victim.
In offering guidance to judges about how they should evaluate an offense‘s seriousness under the first criterion, Solem also explicitly distinguished completed crimes from inchoate ones. 463 U.S. at 293. Solem did so on the ground that the latter type of offenses do not require proof that any actual harm resulted. Id.
Rivera was convicted of completed crimes in one sense, given that
Solem did recognize that the fact that an offender is a recidivist is also potentially relevant to the analysis of how serious the conduct being punished is for Eighth Amendment purposes. Solem, 463 U.S. at 296. But Solem did not equate recidivism with the mere commission of
That understanding of recidivism accords with the understanding relied on in Rummel. There, the Supreme Court rejected an Eighth Amendment challenge to a life sentence with the possibility of parole that had been imposed for a defendant‘s conviction for committing a third nonviolent felony. Rummel, 445 U.S. at 265. The defendant challenging that sentence had already served his sentences for his convictions for committing the earlier two offenses. Id. at 265-66. In upholding the defendant‘s life-with-parole sentence, the Supreme Court emphasized the special interest that a state has in imposing such a harsh sentence when the offender has already “demonstrate[d] that conviction and actual imprisonment [does] not deter him from returning to crime once he is released.” Id. at 278.
Rivera, by contrast, was sentenced to a prison term of more than 100 years for the
But, although Rivera‘s criminal conduct is not of the most serious kind, his no-hope sentence undoubtedly is. Indeed, his sentence could not have been harsher save for a sentence of death having been imposed. Yet, the Supreme Court has made clear that the Constitution does not permit a death sentence to be imposed for offenses that do not result in death. See Coker v. Georgia, 433 U.S. 584, 599 (1977) (reversing on Eighth Amendment grounds a sentence of death for a non-homicide crime).
Nor is the severity of Rivera‘s sentence solely a function of its length. His sentence is especially unforgiving because the sentencing judge was required to ignore any mitigating circumstances, like Rivera‘s lack of any criminal history prior to the sting. Rivera-Ruperto I, 846 F.3d at 420. Rivera‘s sentence in this respect is less forgiving than the life-without-parole sentence that Solem deemed disproportionate. That sentence was at least discretionary and therefore necessarily tailored to the defendant‘s particular circumstances, see Solem, 463 U.S. at 290, including most notably his prior criminal history.
So, what are we to conclude from a consideration of Solem‘s first criterion? Are the offenses that Rivera committed serious enough that the imposition of the most serious of prison sentences would not be grossly disproportionate?
Notably, Solem recognized the problem with calling upon judges to make this kind of abstract assessment. The range of criminal conduct that might reasonably be thought to be serious enough to warrant very severe punishment is broad. But, as one moves from consideration of crimes that involve core violent conduct to more boundary-pressing cases, judicial judgments about the relative severity of the crime necessarily risk becoming subjective.
It is not surprising, then, that Solem appears to have proceeded on the understanding that judges need to undertake a real-world comparative inquiry, even if the more abstract threshold inquiry does not in and of itself demonstrate the sentence to be grossly disproportionate. For, at least in a case involving conduct such as is involved here, I read Solem to require courts to move beyond an abstract, threshold assessment of the “gravity of the offense and the harshness of the penalty,” Solem, 463 U.S. at 292, to a more grounded comparative assessment of how comparable crimes are actually treated both by the punishing jurisdiction and by other jurisdictions. And that is because I read Solem to require judges to undertake such a further inquiry if the question whether the sentence gives rise to an inference of gross disproportionality -- when viewed abstractly -- is at least fairly debatable.
This more holistic approach accords with the approach that is often taken in applying the Eighth Amendment. For, as I have noted, its bounds have long been understood to be drawn, at least in part, by actual legislative practices and by the norms of decency that those practices may be understood to reflect. See Graham v. Florida, 560 U.S. 48, 62 (2010)Solem identifies. Those criteria train the focus of the inquiry on “the sentences imposed on other criminals in the same jurisdiction” and “the sentences imposed for commission of the same crime in other jurisdictions.” Solem, 463 U.S. at 292.
B.
I begin by reviewing the sentences that the federal government imposes for other serious criminal conduct. That review suggests that, however debatable the question might be in the abstract, there is a gross disproportionality between the gravity of Rivera‘s offenses (serious though they are) and the severity of the punishment that he received for them.
Under federal law, “an aircraft hijacker . . . , a terrorist who detonates a bomb in a public place . . . , a racist who attacks a minority with the intent to kill and inflicts permanent or life-threatening injuries . . . , a second-degree murderer, [and] a rapist,” Rivera-Ruperto II, 852 F.3d at 31 (Torruella, J., dissenting) (citation omitted), would all be subject to less harsh sentences than Rivera. Congress has not mandated that any of these offenders receive life-without-parole sentences. In fact, the recommended prison terms for each of these offenses under the United States Sentencing Guidelines are no more than one-fifth as long as the one that Rivera received for his offenses. See id. It is hard to see, though, how Rivera‘s conduct is five times as serious as that of a terrorist who detonates a bomb in a public building, seven times as serious as that of a person
Consideration of the federal government‘s treatment of seemingly comparable conduct under
Specifically, under our precedent, Rivera could not have been charged with participating in a single overarching conspiracy due to the way the FBI staged the sting. We have held that a conspiracy may not be between one individual and a government agent. United States v. Portela, 167 F.3d 687, 699-700, 700 n.8 (1st Cir. 1999) (“[G]overnment agents do not count as co-conspirators.” (quoting United States v. Giry, 818 F.2d 120, 125 (1st Cir. 1987)). But, in this sting, the only common participant in each transaction other than Rivera himself was an FBI agent.9
Thus, due to that quirk, the government could only charge Rivera with participating in the full course of his conspiratorial conduct by charging him with being a participant in six discrete conspiracies that corresponded to each of the six fake transactions.10
The decision to charge Rivera for his course of conduct in that manner was quite consequential. It helped to pave the way for the more-than-century-long mandatory prison sentence that he received under
Notably, though, if Rivera had participated in the same type of extended conspiracy with a real drug trafficker standing in the stead of the FBI agent who was present for each of the six
In this way, then,
To be sure, in addition to his conspiracy convictions, Rivera was also convicted of six counts of attempted drug possession with intent to distribute, and those convictions independently served as predicates for his
This assessment of Rivera‘s mandatory sentence relative to the way that the federal government treats seemingly worse or at least comparable conduct does little to allay the concerns about disproportionality -- however debatable those concerns may be in the abstract -- that a consideration of the first Solem criterion raised. This comparison in turn raises the concern that the congressional choice to mandate this level of punishment for an offender like Rivera may not have been a carefully considered one. And that fact necessarily diminishes (even though it does not negate) the legislative claim to deference that informs the whole of the Solem framework. Solem, 463 U.S. at 290 (“Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes.“).
C.
The final Solem criterion requires a comparison of this sentence with “the sentences imposed for commission of the same crime in other jurisdictions.” Solem, 463 U.S. at 292. A consideration of this criterion would also appear to point in favor of Rivera‘s challenge.
As the government did not address this prong of the Solem inquiry, the government does not address whether there is any state that would impose for comparable conduct the same draconian punishment that
In accord with that right, the ECtHR ruled that all people facing “whole life” sentences must be afforded a “review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds.” Hutchinson, Eur. Ct. H.R. ¶ 20(a). The court declined to “prescribe the form -- executive or judicial -- which that review should take, or to determine when that review should take place.” Id. ¶ 20(b). But, the court emphasized that “comparative and international law materials provide clear support for the institution of a dedicated mechanism guaranteeing a review no later than twenty-five years after the imposition of a life sentence, with further periodic reviews thereafter[.]” Id. And the court added that “[a] whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought[.]” Id. ¶ 20(d). Thus, the court explained that, “where domestic law does not provide any mechanism or possibility for review of a whole life sentence,” the unlawfulness of the sentence under Article 3 of the Convention “arises at the moment of the imposition of the whole life sentence and not at the later stage of incarceration.” Id.
Accordingly, consideration of the last two Solem criteria reinforces the concern about whether Rivera‘s sentence is grossly disproportionate that consideration of the first Solem criterion raises. The consideration of these last two criteria reveals that Rivera‘s severe sentence is most unusual when compared to the sentences that have been imposed for crimes that would seem to be no less serious. And that is so whether one looks to the sentencing practices of other jurisdictions
had upheld as unconstitutional under the Michigan Constitution‘s Eighth Amendment analog. People v. Bullock, 485 N.W.2d 866, 877 (Mich. 1992). The Supreme Court of Michigan concluded “largely for the reasons stated by Justice White in his dissenting opinion in Harmelin that the penalty at issue here is so grossly disproportionate as to be ‘cruel or unusual.‘” Id. at 875-76 (quoting
D.
In the end, the question whether Rivera‘s sentence is constitutional under Solem is not without some difficulty. His crimes are more serious than the minor one that triggered the sentence that Solem struck down. But, Rivera received the harshest of prison sentences for crimes that Solem does not treat as being of the most serious kind. Moreover, comparative analyses reveal that his sentence is an outlier. I thus conclude that, if Solem were the last word, then Rivera‘s sentence would be grossly disproportionate. Under the Eighth Amendment, therefore, Rivera would be entitled to have his mandatory life-without-parole sentence vacated and his case remanded for resentencing.16
II.
Solem, however, is not the last word. I thus must address the post-Solem Supreme Court precedent that addresses the constitutionality of imposing mandatory life-without-parole sentences under the Eighth Amendment for drug offenses. And that precedent is Harmelin.17
There, a defendant brought an Eighth Amendment proportionality challenge to his mandatory life-without-parole sentence under Michigan law for the possession of what the Supreme Court described as 672.5 grams of cocaine. Harmelin, 501 U.S. at 1008 (opinion of Kennedy, J.). Notwithstanding Solem, the Supreme Court upheld that sentence. Id. at 996 (opinion of Kennedy, J.).
A.
The first way in which the Harmelin concurrence adversely affects Rivera‘s proportionality challenge has to do with the concurrence‘s treatment of the second and third Solem criteria. The concurrence makes clear that consideration of these two criteria -- which require real-world comparative analyses -- are “appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.”19 Harmelin, 501 U.S. at 1005 (opinion of Kennedy, J.). The concurrence further indicates that there need only be a “rational basis” for a legislature‘s conclusion that an offense is as serious as one that, like felony murder, may constitutionally merit a life-without-parole sentence in order for the threshold Solem inquiry to require the conclusion that no such inference is warranted and thus that the sentence must be upheld. Id. at 1004.
I agree that a sentence‘s outlier status does not in and of itself demonstrate that a sentence is so grossly disproportionate as to be unconstitutional. But, as the discussion above demonstrates, there are consequences if judges are too quickly barred from gaining insight into whether a sentence is grossly disproportionate through a comparative analysis of other relevant sentencing practices. Those consequences are likely to be especially significant, moreover, in cases in which the offense is, per Solem, not of the most serious kind, but the prison sentence is.
In fact, all four dissenting Justices in Harmelin challenged the concurrence on this point. Id. at 1018-19 (White, J., dissenting); id. at 1027 (Marshall, J., dissenting); id. at 1028 (Stevens, J., dissenting). The dissenters explained that a virtue of the second and third criteria is that they help to inform the analysis of the first criterion. Id. at 1020-21 (White, J., dissenting). Under the Harmelin concurrence‘s approach, the dissenters worried, courts addressing the first Solem
The dissenters also expressed the concern that the concurrence‘s approach to the first criterion -- by making it so difficult to make a showing that would justify undertaking a real-world comparative analysis -- threatened to render any objective Eighth Amendment proportionality analysis “futile.” Id. at 1020. Justice White even went so far as to contend that the concurrence‘s gloss on the first criterion was inconsistent with Solem because it reduced Solem to “an empty shell.” Id. at 1018.
Nevertheless, the dissenters did not prevail. I thus must, like the panel, Rivera-Ruperto II, 852 F.3d at 18, make the kind of critical threshold determination that the Harmelin concurrence requires. And that means that I must decide whether the severity of Rivera‘s
B.
The second way in which the Harmelin concurrence adversely affects Rivera‘s Eighth Amendment challenge concerns the way in which the Harmelin concurrence actually performed Solem‘s threshold inquiry with respect to the criminal conduct at issue in that case. Specifically, the concurrence determined that the drug possession crime in that case was of a sufficiently “serious nature” that no inference of gross disproportionality was warranted by the imposition of a mandatory life-without-parole sentence. Harmelin, 501 U.S. at 1004 (opinion of Kennedy, J.). Accordingly, the concurrence concluded, the judicial inquiry into the sentence‘s proportionality need not reach the second or third Solem criteria. Id.
In making this critical judgment, the concurrence reasoned that the “[p]ossession, use, and distribution of illegal drugs represents ‘one of the greatest problems affecting the health and welfare of our population.‘” Id. at 1002 (quoting Treasury Emps. v. Von Raab, 489 U.S. 656, 668 (1989)). For that reason, the concurrence explained, Harmelin‘s crime “falls in a different category from the relatively minor, nonviolent crime at issue in Solem.” Id.
The concurrence stressed in this regard that the suggestion that the “crime was nonviolent and victimless . . . is false to the point of absurdity.” Id. The concurrence emphasized that 650 grams of cocaine contained “between 32,500 and 65,000 doses.” Id.
The concurrence further explained that the fact that the offense involved drug possession was important because “quite apart from the pernicious effects on the individual who consumes illegal drugs, such drugs relate to crime[.]” Id. For example, the concurrence reasoned, drug users
The concurrence then concluded, without the benefit of any comparative inquiry into the practices of other jurisdictions, that whether or not Michigan‘s penalty scheme was “correct or the most just in the abstract sense,” the Michigan legislature “could with reason conclude that the threat posed to the individual and society by possession of this large an amount of cocaine -- in terms of violence, crime, and social displacement -- is momentous enough to warrant the deterrence and retribution of a life sentence without parole.” Id. at 1003 (emphasis added). The Harmelin concurrence justified this conclusion by explaining that “a rational basis exists for Michigan to conclude that petitioner‘s crime is as serious and violent as felony murder without specific intent to kill,” which, the concurrence noted, is a crime that Solem had stated was one “for which ‘no sentence of imprisonment would be disproportionate.‘” Id. at 1004 (quoting Solem, 463 U.S. at 290 n.15) (emphasis added). Thus, the Harmelin concurrence held that, “[i]n light of the gravity of petitioner‘s offense, a comparison of his crime with his sentence does not give rise to an inference of gross disproportionality, and comparative analysis of his sentence with others in Michigan and across the Nation need not be performed.” Id. at 1005.
This reasoning, in my view, is dispositive here. Rivera‘s convictions are not for offenses that are identical to Harmelin‘s. Indeed, he was not convicted of actually possessing any drugs. Still, I do not see how a lower court may say that the Michigan legislature had reason to conclude that a conviction for possession of a large quantity of cocaine and no guns warranted a mandatory life-without-parole sentence, but that Congress could not have had a rational basis for concluding that such a sentence was warranted for multiple convictions for possession of a firearm in furtherance of conspiring or attempting to possess with intent to distribute a “detectable amount” of cocaine packaged in five-kilogram-sized substances. See
III.
Although I am convinced that the Harmelin concurrence controls the outcome here, and that it does so by limiting our inquiry to a consideration of only Solem‘s first criterion, I am also convinced that the Court should revisit the logic of the Harmelin concurrence, at least insofar as it applies to mandatory greater-than-life-without-parole sentences under
A.
First, given the range of possible ways that a defendant may commit multiple
As the Harmelin concurrence noted, the life-without-parole sentence in that case was mandated pursuant to a carefully calibrated and graduated penalty scheme in which the Michigan legislature specially singled out only a subset of precisely defined large-quantity drug possession crimes for such harsh punishment. Michigan‘s penalty scheme, the concurrence explained, “is not an ancient one revived in a sudden or surprising way; it is, rather, a recent enactment calibrated with care, clarity, and much deliberation to address a most serious contemporary social problem.” Id. at 1007-08 (emphasis added). Thus, although the concurrence did acknowledge that it was not untroubled by the result, or certain “that Michigan‘s bold experiment [would] succeed,” the concurrence concluded that it could not “say the law before us has no chance of success and is on that account so disproportionate as to be cruel and unusual punishment.” Id. at 1008.23
Perhaps, in the face of the exercise of such legislative care to address a new social problem in a new way, there is a case to be made for according the kind of deference to the penal judgment at issue in Harmelin that the concurrence in Harmelin thought proper. And thus, perhaps, in such a circumstance, there is less need to check the judicial intuition about the proportionality of a mandatory life-without-parole sentence for a large-quantity drug possession offense against actual legislative practice than the dissenters in Harmelin thought there was.
But even if, in light of the legislative care taken in Michigan, the sentence at issue in Harmelin warranted such deferential review, uninfluenced by real-world sentencing practices, I cannot see what the case would be for applying the same limited form of review here. In contrast to the focused sentencing scheme considered in Harmelin, which targeted only carefully specified large-quantity drug possession crimes,
In consequence, life-without-parole sentences may be required under
Nor is there anything in
The Supreme Court in Deal did finally reject the view of some lower courts -- and the four dissenters in that case, 508 U.S. at 137 (Stevens, J., dissenting) -- that Congress intended only to impose such harsh sentences on true recidivists, such that a “defendant who commits a second
Moreover, unlike the scheme at issue in Harmelin,
Thus, this sentencing regime is very different from the one at issue in Harmelin, in which the state legislature “mandated the penalty” for a discrete drug possession crime. 501 U.S. at 1006 (opinion of Kennedy, J.). Here, there is a real possibility that, in upholding a more-than-century-long sentence based on multiple related
Simply put, it is one thing to uphold such a sentence for the drug-related conduct at issue here on the basis of a limited and abstract threshold inquiry when that sentence has been legislatively “calibrated with care, clarity, and much deliberation to address a most serious contemporary social problem.” Harmelin, 501 U.S. at 1007-08 (opinion of Kennedy, J.). It seems to me quite another to do so when that sentence does not appear to have been the product of such serious and careful legislative thought and may in fact have been the result of an exercise of a prosecutor‘s decision to break one course of conduct into many discrete offenses. For, in that event, the judge in rejecting a challenge to the sentence‘s proportionality is deferring to a hypothesized legislative choice, notwithstanding that there in fact may be no legislature -- not even the one imposing the sentence -- that has both thoughtfully focused on the need for such a sentence for such conduct and then carefully chosen to mandate it as a proportionate response.
B.
There is a second reason for my concern about applying the constricted form of the analysis that the Harmelin concurrence requires in this case. Harmelin was decided at a time at which, on the concurrence‘s own account, a state was trying out a new means of responding to a serious crime problem that was causing great concern. Id. In that circumstance, the concurrence expressed its understandable wariness about the federal Constitution‘s proportionality requirement being construed in a manner that would invalidate one state‘s “bold experiment” and thereby stifle the
only be encompassed fully by charging him with many discrete conspiracy offenses rather than by charging him with having been a participant in a single overarching and extended conspiracy. See Portela, 167 F.3d at 699-700, 700 n.8. And yet, in consequence of these discrete conspiracy charges, he was exposed to the more-than-century long mandatory sentence under
Nor is my concern about how considered the congressional judgment was for conduct like that at issue in this case diminished by the fact that Rivera‘s
But, here, we are considering a federal statutory sentencing mandate. And that mandate bears none of the hallmarks of considered experimentation, undertaken as a means of fashioning a bold, if untried, response to a new and vexing problem. In fact, this mandate‘s dramatic sentencing consequences result in significant part from a judicial construction of a much debated statutory phrase -- “second or subsequent” -- that was the subject of seemingly little discussion in Congress.
Moreover, we are reviewing that mandate‘s proportionality at a time when decades have passed since the Supreme Court first considered Michigan‘s arguably similar approach to combating the drug scourge through the imposition of mandatory life-without-parole sentences. Yet, during those intervening years, virtually no other jurisdiction has seen fit to follow suit. Indeed, if anything, the trend lines are moving in just the opposite direction. See Bullock, 485 N.W.2d at 877; cf. Graham, 560 U.S. at 109 (looking to “legislative trends” in determining whether a sentencing practice violated the Eighth Amendment).
Thus, for this reason, too, the concerns that appear to have animated the Harmelin concurrence‘s conclusion that a real-world comparative inquiry was not properly undertaken in that case do not appear to me to be present here. Rather, in a case like this, it seems to me that there is good reason for courts to undertake the holistic review that the dissenters in Harmelin understood Solem to require but that the Harmelin concurrence determined was not needed to review a mandatory life sentence that a state‘s legislature was thought to have required as a “bold experiment” to address the drug problem. Harmelin, 501 U.S. at 1008 (opinion of Kennedy, J.). By doing so, courts may factor the sentence‘s evident outlier status into the ultimate assessment of its gross disproportionality.
C.
These two concerns about applying the Harmelin concurrence‘s gloss on the Solem inquiry to this context are reinforced, in my view, by two lines of Supreme Court precedent that have developed since Harmelin was decided. I briefly describe each in turn.
First, in Alleyne v. United States, 570 U.S. 99 (2013), the Court held that the Sixth Amendment requires that “any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury.” Id. at 103. Thus, under Alleyne, the minimum sentence that a defendant can receive must be based on the minimum conduct criminalized by a statute, that is, the elements of that crime. Id. at 116. It would thus seem that, in evaluating the proportionality of a particular mandatory sentence, we must likewise look to the least of the conduct criminalized by the elements of the offense. Consideration of anything further -- like conduct alleged in the indictment or found at sentencing to have occurred -- would impermissibly permit the assessment of the sentence‘s proportionality to be based on conduct that had not been found by a factfinder beyond a reasonable doubt, even though under Alleyne the mandatory sentence may not be imposed based on such conduct.
Consider in this regard that, seemingly contrary to Alleyne‘s logic, the Harmelin concurrence reasoned that the sentence there at issue was not disproportionate because Harmelin “possessed” 672.5 grams of “undiluted cocaine” as well as assorted drug paraphernalia, 501 U.S. at 1008 (opinion of Kennedy, J.). The concurrence emphasized that fact in spinning out how many “doses” of the drug could have been dispensed by the defendant. See id. And, the concurrence did so in order to describe the seriousness of the tangible harm caused by the defendant‘s conduct and thus the reasonableness of the legislative sentencing judgment. See id.
The offense in that case, however, actually held Harmelin criminally liable merely because he “possessed” 650 grams of a “mixture containing” cocaine,
Still, there is no doubt that the Michigan legislature did intend to mandate a life-without-parole sentence for even that “mixture” crime, given how clearly the statute at issue set forth that penalty scheme. By contrast, it is less clear to me that Congress would have been fully aware of just how minimal the conduct could be that would result in a “forever” sentence under
The second line of post-Harmelin cases that I have in mind further gives me pause about applying the Harmelin concurrence‘s more limited form of Solem review here. This line of precedent has resulted in the invalidation under the Eighth Amendment of life-without-parole sentences for juveniles. Miller, 567 U.S. at 474; Graham, 560 U.S. at 69.
Those cases, of course, are by no means controlling here. But, in them, the Court has emphasized in a way that it had not previously -- and thus in a way that it had not when Congress enacted
In particular, the Court has explained that such sentences constitute some of the “most severe punishments” that society imposes. Miller, 567 U.S. at 474; Graham, 560 U.S. at 69. And, the Court has added, such sentences:
[S]hare some characteristics with death sentences that are shared by no other sentences . . . . [T]he sentence alters the offender‘s life by a forfeiture that is irrevocable. It deprives the convict of the most basic liberties without giving hope of restoration . . . . [A] life without parole sentence . . . means denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of [the convict], he will remain in prison for the rest of his days.
Graham, 560 U.S. at 69–70 (citations and quotations omitted). The Court has also recently stressed, in connection with reviewing the proportionality of such sentences, that “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers.” Id. at 69.
It may be that, even despite these strong statements, the Eighth Amendment is still best understood to permit Congress to mandate, even for conduct like Rivera‘s that resulted in no bodily harm, that “whatever the future might hold” for him, he must “remain in prison for the rest of his days.” Id. at 70. He was, after all, an adult, not a child, when he committed his crimes. And judges are not entitled to second-guess the wisdom of the penal judgments of legislatures. Instead, judges are supposed to accord them deference.
But, at least in a case involving a sentence this harsh for crimes of this type, one would think that such deference would stem from confidence that the legislature has in fact made a considered penal judgment to impose such an unforgiving sentence and from careful consideration of the way in which offenders more generally are punished for comparable or even worse conduct. For such confidence and consideration would ensure that judges in deferring to a legislative judgment are recognized to be engaged in an understandable, rather than an unforgivable, means of carrying out their duty to say what the constitutional prohibition against “cruel and unusual” punishment is.
Thus, in light of the concerns that the Court has recently expressed about the imposition of life-without-parole sentences, I do not see how the kind of abstract review that is contemplated under the first Solem criterion -- and that the Harmelin concurrence requires us to treat as dispositive here -- can suffice to permit us to determine whether Rivera‘s sentence is grossly disproportionate under the Eighth Amendment. In my view, a comparative assessment, grounded in actual legislative practice, should be required to inform the judge‘s assessment of proportionality in such a case.
Such a requirement would prevent judges from simply substituting their own preferences for legislative ones in evaluating whether a mandatory life-without-parole sentence is cruel and unusual. Such a requirement would also ensure that the judicial assessment of a mandatory life-without-parole sentence for drug-related offenses of the sort at issue here does not unduly discount the defendant‘s Eighth Amendment right to be protected from grossly disproportionate punishment.
Rivera faces the longest and most unforgiving possible prison sentence for conduct that, though serious, is not of the most serious kind. He does so not because the legislature had authorized its imposition and a judge had then considered all of the aggravating and mitigating circumstances and determined that this sentence was appropriate. He does so only because Congress has been deemed to have made a blanket judgment that even an offender like Rivera -- who has no prior criminal record and whose series of related crimes resulted in no harm to an identifiable victim -- should have no hope of ever living free. And he does so even though virtually every comparable jurisdiction punishes comparable criminal conduct less harshly, and even though the federal government itself punishes nearly the same or seemingly worse conduct more leniently.
Almost three decades have now passed since the concurring Justices in Harmelin concluded, without reference to real-world comparative benchmarks, that the Eighth Amendment afforded the Michigan legislature the scope to try out what at the time was viewed as a permissible sentencing experiment to address a newly concerning crime problem. In those intervening decades, virtually no jurisdiction has been willing to replicate that state‘s experiment. In fact, even the state that the Harmelin concurrence permitted to try it has abandoned it. And yet the Harmelin concurrence still controls.
In my view, a consequence as grave as the one that Harmelin requires in a case like this should have the imprimatur of more than only a nearly three-decade old, three-Justice concurrence. I thus urge the Supreme Court to consider whether the Eighth Amendment permits, at least in a case such as this, the mandatory stacking of sentences under
LIPEZ, Circuit Judge, statement regarding the denial of rehearing. In voting to deny panel rehearing, I express my agreement with the concurring statement issued by my colleagues in denying appellant‘s petition for en banc review.
By the Court:
/s/ Margaret Carter, Clerk