The Eighth Amendment applies to noncapital sentences, too. And yet, if a sentencing court is stripped of making any individualized findings and is left only with an arithmetical assessment that “seemingly could have been more severe only if it had required death,” where then is the Eighth Amendment’s proportionality safeguard?
The First Circuit posed this heady question just last week, explicitly urging the U.S. Supreme Court to revisit its outdated precedent on the Eight Amendment’s applicability to lengthy, adult prison sentences.
In United States v. Rivera-Ruperto, 130 years of the defendant’s sentence was imposed for six stacked § 924(c) convictions stemming from an FBI sting operation targeting Puerto Rican police officers. Rivera-Ruperto participated as an armed security guard in a number of “deals” involving fake cocaine. FBI agents posed as the buyers and the sellers. As a consequence of his involvement in this one sting operation, Rivera-Ruperto received a mandatory sentence of five years for his first § 924(c) conviction followed by consecutive twenty-five-year prison sentences on the subsequent five § 924(c) convictions.
The First Circuit denied Rivera-Ruperto’s request for rehearing en banc to challenge the constitutionality of his sentence, but in doing so, the entire Circuit joined in Judge Barron’s momentous concurrence calling on the U.S. Supreme Court to reassess its three-decade old, three-judge concurrence in Harmelin v. Michigan, 501 U.S. 957 (1991), which controls the outcome of this case. Under Justice Kennedy’s concurring opinion in Harmelin, the Eighth Amendment “forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” But as Judge Barron cogently opined, sentencing courts “have no choice but to approve mandatory ‘forever’ sentences under § 924(c) so long as they can hypothesize a rational reason for the legislature to have thought that the underlying criminal conduct was as serious as the large quantity drug possession at issue in Harmelin.” (Note: see United States v. Angelos, 433 F.3d 738, 750-51 (2006), for Tenth Circuit precedent applying Harmelin in this fashion.)
Judge Barron’s concurrence provides thorough insight on why Congress did not carefully consider the resulting impact of 924(c) convictions and stacking in general. The concurrence also provides two lines of more recent Supreme Court precedent (under Alleyne and Miller/Graham) as reinforcement for why the Court must reassess Harmelin in the modern era. As Judge Barron concluded, “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.”
This isn’t the only kind of fact pattern and noncapital sentence that the Eighth Amendment’s proportionality principle should reach, but it’s certainly one of them according to the entire First Circuit.