To Err On The Side Of Mercy Is Human…But Not Judicial
Jan. 7, 2016 (Mimesis Law) — At Simple Justice, Scott Greenfield takes exception to what I wrote about the resentencing of Dwight and Steven Hammond. Specifically, I said that once the case reached them, the Ninth Circuit had no choice but to remand the case for resentencing consistent with the mandatory minimum of five years.* Scott disagreed:
I submit that the 9th Circuit’s rationale is inadequate and flawed. That there have been other miscarriages of “justice,” of proportionality, of inclusion of an offense within a law where the offense falls outside the “heartland” of the crime, is not a proper or rational basis for rejecting, out of hand, the sentence of a judge that refuses to perpetuate an injustice. While it is left to Congress to pass laws, it is left to the courts to determine whether those laws, as applied, violate the Constitution’s prohibition of cruel and unusual punishment.
The five year minimum shocked the conscience of the trial judge, Michael Hogan. The Ninth Circuit’s conscience seemed fine with it. (There were no dissents to the opinion). Whose conscience decides whether the five year minimum is cruel and unusual? Hogan’s, because he was closest to the case? The panel’s, because they outrank him? Scott’s? Mine?
Scott goes on to say:
Noel characterizes the sentence as “illegal,” noting that just as a sentence in excess of the statutory maximum must be reversed, so too should a sentence below the mandatory minimum. While his point is well taken, that we would properly rail against an excessive sentence, the two are not comparable, and the illegality of an excessive sentence does not demand the same recourse as a sentence below the minimum, given the “escape valve” of the Eighth Amendment, which provides a constitutional basis to relieve a defendant from excessive punishment. Because it’s grounded in the Constitution, it trumps Congress’ imposition of a statutory mandatory minimum on the court.
Except, the Eighth Amendment is too blunt an instrument to be used as an escape valve on its own. As Ken White points out in his lawsplainer:
The Eighth Amendment still has vigor when applied to the death penalty and some conditions of imprisonment, but under modern jurisprudence it does not place any significant limit on the length of imprisonment that may be imposed for convictions. That may not be what the law should be, but it’s what the law is, and has been for some time.
Hogan was, in effect, substituting his judgment for that of Congress. Obviously, there are times when the judicial branch does this. But those occasions are invariably grounded in precedent and (ideally, anyway) solid reasoning. Hogan’s going below the minimum doesn’t seem to be based on any particular legal principle, other than a dislike of applying the mandatory minimum in this particular case.
That’s not enough. If there was some caselaw that said mandatory minimums only applied to “offenses within the heartland of the crime,” or something in the sentencing statute that said that mandatory minimums could be disregarded in certain circumstances, then three cheers. Unfortunately, there isn’t.
Hogan’s use of the Eighth Amendment to justify imposing less than the minimum sentence was unsupported by precedent or statutory authority. As such, it wasn’t the law. It was Judge Hogan’s opinion. However much we might agree with the end result, the ends do not justify the means. In fact, the entire point of a having a legal system is to ensure that the means are more important than the ends.
Scott makes one other point, that defense attorneys have become so jaded to overly harsh sentences that they’ve rolled over on accepting the Ninth Circuit’s bad reasoning. The reasoning, while curt, isn’t wrong. It goes all the way back to Marbury v. Madison:
It is emphatically the province and duty of the Judicial Department to say what the law is. (emphasis added)
The Ninth Circuit told us what the law is. Hogan’s ruling was about what the law should be. Deciding what the law should be isn’t a matter for the judiciary, but for the legislature. If defense attorneys want to fight mandatory minimums, they should direct their advocacy not to judges but to their congressmen. That’s not rolling over. That’s changing the law the way it should be changed.
One can sympathize with Judge Hogan’s attempt to err on the side of mercy, admire what he tried to do, and even wish he had gotten away with it. But faced with a district judge who ignored both Eighth Amendment jurisprudence and the sentencing statute, the Ninth Circuit made the only decision it could.
*I do think that the government could have graciously declined to appeal the sentence so that it never got to the Ninth Circuit in the first place; in retrospect, perhaps this is naïve. As a noted legal philosopher once pointed out: players gonna play, haters gonna hate, prosecutors gonna prosecute.