Mimesis Law
27 October 2020

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.

18 Comments on this post.

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  • Richard G. Kopf
    7 January 2016 at 12:16 pm - Reply


    Excellent post. Thank you.

    By the way, it saved me from writing essentially the same thing. I add only this: Judge Hogan’s 8th Amendment argument was doomed from the start. What did he accomplish? Not a damn thing except, possibly, to stir up a bunch of nuts to take over a gift shop at gun point.

    All the best.


    • shg
      7 January 2016 at 12:29 pm - Reply

      There is a deep and abiding irony in your agreement with Noel, Judge. After your comment, I rest my case. After all, it’s not as if defense counsel should ever pursue a strategy that ultimately accomplishes “not a damn thing,” even if he prevailed before the district judge. The Hammonds’ lawyer shouldn’t have bothered sending in the appellees’ brief, since it was just a waste of a tree.

    • Noel Erinjeri
      7 January 2016 at 5:24 pm - Reply

      Thanks, Judge. I was wondering you thought of all this, so that’s gratifying.

      • shg
        7 January 2016 at 7:10 pm - Reply

        Are you sure gratifying is the word you mean?

        • Richard G. Kopf
          8 January 2016 at 8:02 am - Reply


          What’s wrong with “gratifying?” It makes me tingle. Give an old man a break.

          All the best.


  • Richard G. Kopf
    7 January 2016 at 12:42 pm - Reply


    I don’t fault counsel for making the argument to the district court or to the Ninth Circuit. Sometimes you “catch lightning in a bottle.” But the job of a district judge, the most inferior judge in our federal system, is to fairly apply the precedents. The precedents doomed the argument.

    As for irony, the real irony is that the opinion writer for the Ninth Circuit was a district judge.

    All the best.


    • shg
      7 January 2016 at 1:23 pm - Reply

      My object all sublime
      I shall achieve in time-
      To let the punishment fit the crime
      The punishment fit the crime.

      W. Gilbert & A. Sullivan, Mikado, in The Complete Plays of
      Gilbert and Sullivan 331 (W. Norton ed. 1976).

      Or if you’re not a fan (hats aside) of light opera, there’s always the 8th Amendment’s proportionality test, per Coker v. Georgia, 433 U.S. 584, 592 (1977) (plurality opinion of White, J., in which Stewart, Blackmun, and Stevens, JJ., concurred); Ingraham v. Wright, 430 U.S. 651, 667 (1977); Gregg v. Georgia, 428 U.S. 153, 173 (1976) (plurality opinion of Stewart, J., in which Powell and Stevens, JJ., concurred); Furman v. Georgia, 408 U.S. 238, 279 (1972) (Brennan, J., concurring); id. at 331 (Marshall, J., concurring). It might not have succeeded, but it was most assuredly worth trying, and deserved better than the 9th Circuit’s facile dismissal.

      And yes, the greatest irony is that the Circuit’s decision was written by a judge of the Eastern District of Michigan, sitting by designation. But as we know, judges can be inferior or superior based on the size and location of their chair.

      • Richard G. Kopf
        7 January 2016 at 3:46 pm - Reply


        Is it merely ironic (or just a weird coincidence) that both you and Chief Justice Rehnquist have swooned over Gilbert & Sullivan?*

        All the best.


        *A fan of Gilbert and Sullivan operettas, Chief Justice Rehnquist saw a local production of “Iolanthe,” in which the Lord Chancellor wore gold stripes on his sleeves. A few weeks later, the Chief appeared in court with gold stripes stitched onto the sleeves of his robe.

        • Jeff Gamso
          7 January 2016 at 4:20 pm - Reply

          And it looked stupid. I was there to watch an argument near the end of his time on the Court, and decided that it looked as odd in person as in the annual Court picture.

          Not as strange, perhaps, as the robes worn by some of the Florida judges (Camouflage and Hawaiian shirt designs) that led, apparently, to the Plain
          Black Only Rule, but odd nonetheless. Of course, the Court does occasionally – well, maybe the problem is that he chose to steal from Iolanthe rather than The Mikado.

        • shg
          7 January 2016 at 6:55 pm - Reply

          I’m not really a fan of G&S, but then, I wasn’t really a fan of Bill Rehnquist either. And as Jeff said, the stripes looked stupid.

  • Jeff Gamso
    7 January 2016 at 12:43 pm - Reply

    ” the Ninth Circuit made the only decision it could.”

    Well, no. The 9th could have done what Judge Hogan did. It could have taken an expansive view of the 8th Amendment. Perhaps that would have provided yet another occasion for Nino and the gang to chide the 9th for being lawless, and perhaps (but perhaps not) they’d have been right.

    But judges are not mere functionaries (despite the announced views of balls-and-strikes, not-yet-CJ Roberts).

    Would affirming have been the right call for the 9th? That’s an altogether different question than whether it would have been a plausible one.

  • jdgalt
    7 January 2016 at 1:53 pm - Reply

    Greenfield is right. The 9th Circuit failed to do its job, and so did SCOTUS. One can only hope the next appointees to SCOTUS will see things his way.

    Overly harsh sentencing is not a problem just for this case. It’s usual, and it gives prosecutors most of their unwarranted power to force plea bargains.

  • Noel Erinjeri
    7 January 2016 at 10:15 pm - Reply

    Get your mind out of the gutter.

  • Cornflake S. Pecially
    8 January 2016 at 1:10 am - Reply

    Nothing to see here even if thirty five years before the United States Constitution was ratified Duke de Richelieu and company were celebrating a victory over the British at Port Mahon.

    Set Greenfield’s bail at thirty million. No, make that fifty million!

    How dare he insuniate that the legislative branch’s shit stinks and the judiciary is responsible for all the processed precedent in the baloney sandwiches.

    And if he doesn’t take a plea dip him in a vat of mayonnaise and charge him with whatever else sticks as well.

    • Richard G. Kopf
      8 January 2016 at 6:25 pm - Reply

      Cornflake S. Pecially,

      I’ll bring the mayonnaise!

      All the best.


  • Chris Broekhof
    8 January 2016 at 8:41 pm - Reply

    I don’t like mandatory minimums. Punishment should be left to the judiciary. When left to congress punishment becomes a ploy to get votes. Even worse we generalize crime, intent, and many other things that are woefully under served by generalization.

    But I like precedent. Not a lot. I hate it when it’s used as an excuse not to write new precedent, or even to take something further without spending a cool million or two just to get it before judges who actually do matter. In the meantime we send hundreds, even thousands up the river on the taxpayer dime, and the expense of their families and friends, and the country as a whole, not to mention the state of trust in the law.

    I just don’t understand how a judiciary that uses it’s power to shut down a law as unconstitutional somehow shakes the very foundation of our republic. As if they never depended on a judiciary before, and that the powers enumerated to them were done so as only a measure of curtailing tyranny of the greatest fashion. I just don’t see how a judiciary that is both there to make what congress writes work, and to also tell them that what they wrote won’t work, somehow can’t work, and so therefore the judiciary only exists to justify congress. Why would you even be a separate branch of Government? Just so the legislative, and executive branches could fight over you?

    Because mandatory minimum’s never should have happened, and the judiciary was one of the checks of power that let it.

  • Tom Schiff
    8 February 2016 at 9:08 am - Reply

    The Dodo birds in the 9th circuit screw it up again. Actually – this charge should never have been allowed in the first place – as the Federal Arson Statute was passed in response to the horrendous 1998 Oklahoma City Bombing – never intended for a little brushfire on scrub-land that did not threaten any US citizens!!! Plus – Judge Hogan rammed this criminal case thru in a day – not allowing the Hammonds to call their witnesses – etc.

    From one who once practiced law for the FEDS!! 🙂

  • 2nd Circuit Corrects Judge Gleeson’s “Error” Of Mercy
    18 August 2016 at 10:36 am - Reply

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