Avoiding and Appealing Excessive Sentences

Vol. 40 No. 2

The author is with Holland & Knight, Washington, D.C.

It is every criminal defense lawyer’s nightmare. Despite your best efforts at trial, your client is found guilty on multiple counts. At the sentencing, the judge imposes on your client the maximum time for each count and orders that the terms be served consecutively.

You are convinced that the judge was unduly harsh on your client at the sentencing. Some judges act on impulse in these cases, or they just cannot hold back after a jury convicts. You know that other defendants convicted of similar crimes have received shorter prison sentences than that imposed on your client. Is there any hope for an argument that the trial judge violated the Eighth Amendment in imposing what is by any objective measure an excessive sentence?

Until recently, the likely answer was “no.” The U.S. Supreme Court has upheld extraordinarily long sentences against constitutional challenges, leaving many believing that the Eighth Amendment’s prohibition against cruel and unusual punishments was toothless when applied to noncapital sentences. Indeed, a divided Ninth Circuit recently upheld sentences totaling almost 750 years imposed on two defendants for a multitude of firearms-related offenses. See United States v. Major, 676 F.3d 803 (9th Cir. 2012).

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