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).
However, since 2010, the Supreme Court has twice sustained Eighth Amendment challenges to excessive noncapital sentences. In issuing those two decisions, the Supreme Court has nearly doubled the number of times in its entire history it has found Eighth Amendment violations in noncapital sentences. Although it may be too early to deem the Supreme Court’s rulings a trend, defense counsel should be prepared to marshal any Eighth Amendment arguments when a judge imposes an excessive sentence.
Nobody disputes that certain offenses warrant a punishment of long imprisonment. Likewise, most agree that some convicted defendants are beyond rehabilitation. And some argue that declining crime rates nationwide may be attributed in part to longer prison sentences authorized in the 1980s. Sentencing has numerous goals, including punishment, rehabilitation, and deterrence. But sentences should not be based on revenge. See Furman v. Georgia, 408 U.S. 238, 343 (1972) (Marshall, J., concurring); see also Ex parte United States, 242 U.S. 27, 38 (1916).
Whatever the benefits society recognizes from long sentences, they come at enormous financial and societal costs. In criticizing (yet nonetheless affirming) a “superlong” sentence of 50 years to a 46-year-old man convicted of producing child pornography, Judge Richard Posner recently remarked on the drawbacks of handing out de facto life sentences. He noted that “the implications for cost, incapacitation, and deterrence create grounds for questioning that length of sentence.” United States v. Craig, 703 F.3d 1001, 1003 (7th Cir. 2012) (Posner, J., concurring). Further, he implored sentencing judges to take these societal costs into consideration. See id. at 1004.
But federal trial judges are generally limited in sentencing to the factors listed in 18 U.S.C. § 3553—and societal costs are not among those factors. The immense costs of incarcerating prisoners for long periods are part of the reason why Congress is considering the Justice Safety Valve Act of 2013, which would allow federal judges to depart from mandatory minimum sentences for federal offenses.
There are other societal costs to consider. Although some disparities in sentences will always be unavoidable, “grievous inequities in sentences destroy a prisoner’s sense of having been justly dealt with, as well as the public’s confidence in the even-handed justice of our system.” State v. Hicks, 255 A.2d 264, 265 (N.J. 1969). An inmate who was sentenced harshly will likely find comparable inmates who received far more lenient sentences for similar offenses. Common sense suggests that prisoners are more motivated to rehabilitate themselves if they do not believe that they received the proverbial “raw deal” in their sentences.
Review of excessive sentences under the Eighth Amendment does not have a deep history in our jurisprudence. Early common law did not permit any appellate review of any form of criminal sentence, let alone for excessiveness. By the 18th and 19th centuries, English law generally permitted appellate review of sentences that were illegal, such as terms of imprisonment that were beyond the prescribed statutory limits. However, sentences that were excessive but otherwise legal were generally upheld.
Iowa became the first state to grant its courts of appeals the power to review sentences for excessiveness in 1860. Other states followed suit either through legislative action or by judicial interpretation of the Eighth Amendment or state constitutional counterparts.
In 1910, the Supreme Court first recognized that the Eighth Amendment prohibited excessive sentences when it invalidated a sentence under the Philippine Code for falsification of a government document. Weems v. United States, 217 U.S. 349 (1910). The Court quoted with approval the Massachusetts Supreme Judicial Court’s observation that imprisonment “for a long term of years might be so disproportionate to the offence as to constitute a cruel and unusual punishment.” Id. at 368 (quoting McDonald v. Commonwealth, 53 N.E. 874 (Mass. 1899)). Fifty-two years later, the Supreme Court held that the disproportionality rule of Weems required invalidation of a 90-day incarceration for the “offense” of being a drug addict. Robinson v. California, 370 U.S. 660, 666–67 (1962).
Disproportionality review reached a high point at the Supreme Court in 1983 when the Court, by a 5–4 majority, invalidated a life sentence without parole for passing fictitious checks (the defendant’s seventh offense) as cruel and unusual punishment. Solem v. Helm, 463 U.S. 277 (1983). The Solem majority rejected as “meritless” the argument that a legislature’s establishment of criminal penalties per se satisfied the Eighth Amendment. Id. at 287 n.14. The Court then set forth three guidelines for determining whether a sentence was disproportionate: (1) comparison of the nature and gravity of the offense and the harshness of the penalty, (2) an intra-jurisdictional comparison to sentences imposed on similarly situated defendants, and (3) an interjurisdictional comparison of the same. Id. at 290–92.
Since that time, the Supreme Court has largely retreated from disproportionality review of excessive noncapital sentences. For example, the year before Solem, the Court upheld a sentence of 40 years for possession with intent to distribute and distribution of marijuana. Hutto v. Davis, 454 U.S. 370 (1982). In Harmelin v. Michigan, 501 U.S. 957 (1991), a plurality of the Court affirmed a mandatory life sentence for first-time felony possession of more than 650 grams of cocaine. In Lockyer v. Andrade, 538 U.S. 63 (2003), a 5–4 Court upheld a life sentence imposed under a recidivist “three strikes” law for theft of $150 worth of videotapes. In Ewing v. California, 538 U.S. 11 (2003), a 5–4 Court also upheld a life sentence for stealing golf clubs valued at $1,197. Some dissenting justices protested that the Eighth Amendment was meaningless when it came to excessive sentences. See, e.g., Harmelin, 501 U.S. at 1018 (White, J., dissenting).
Some justices did not believe in the disproportionality theory. Others thought it was unworkable in excessive noncapital cases. How does one decide that a 40-year sentence is permissible, but a 50-year sentence is constitutionally infirm, as Chief Justice Roberts posited at a recent oral argument? Justice Kennedy expressed similar concerns in Harmelin that the lack of objective standards made it impossible to determine when a sentence crossed over into constitutional infringement territory. See Harmelin, 501 U.S. at 1001 (Kennedy, J., concurring in part and concurring in the judgment). Other justices believed that the Eighth Amendment is limited to forms of punishment (i.e., burning at the stake) and that a disproportionality review of prison sentences was impermissible altogether. See Ewing, 538 U.S. at 31 (Scalia, J., concurring); id. at 32 (Thomas, J., concurring).
Weariness with “Superlong” Sentences
However, the tide may be turning. In 2010, the Supreme Court held that life imprisonment without parole for a juvenile who committed home invasion in violation of a plea agreement entered for a previous felony violated the Eighth Amendment. See Graham v. Florida, 130 S. Ct. 2011 (2010). Two years later, the Court reached the same conclusion with respect to a sentence of life without parole given to a juvenile convicted of murder. See Miller v. Alabama, 132 S. Ct. 2455 (2012). In both Graham and Miller, the majority opinions cited disproportionality principles, as well as Solem itself. So, while defense counsel should be cautious to note that both Graham and Miller are limited on their facts to life sentences given to juvenile defendants, the decisions at least reaffirm that Solem’s disproportionality test retains some vitality in the Court.
Moreover, some judges have recently expressed dissatisfaction that the Eighth Amendment does not have more teeth. As noted above, Judge Posner expressed weariness at “superlong” sentences. In addition, Judge Noonan dissented from the Eighth Amendment holding in the Major case, calling the 750-year sentences “impossible to execute.” Major, 676 F.3d at 815 (Noonan, J., concurring and dissenting). And in April 2013, Attorney General Eric Holder joined the rising chorus, saying in a speech that “[t]oo many people go to too many prisons for far too long for no good law enforcement reason.”
So what should defense counsel do to help convicted clients avoid “superlong” sentences that may implicate the Eighth Amendment? The first step is to work hard for a reasonable sentence in the first place so that the Eighth Amendment does not even come into play. The sentencing decision is often an overlooked stage of the criminal process even though it arguably has the greatest impact on the client. Much effort is expended fighting indictments, getting evidence admitted or excluded, and litigating at trial. By the time sentencing arrives, both counsel and the client are demoralized by the conviction and may be wary of expending additional funds given that incarceration is imminent. Busy public defenders may focus their limited resources on avoiding convictions for clients, rather than preparing for sentencing for clients already convicted.
Counsel should identify any merger issues at the sentencing. If the defendant has been charged with multiple offenses for the same predicate act, the lesser offense should be merged into the greater one. Even if the trial judge disagrees that merger is applicable, the issue should be preserved for appellate review. Most jurisdictions (one exception is Pennsylvania) hold that failure to raise merger issues with the sentencing judge results in waiver of the challenge on appeal.
Most defense counsel are well aware of the need to present extensive mitigation evidence (i.e., the defendant’s education level, family responsibilities, military or community service, acceptance of responsibility, remorse) at the sentencing hearing when a lengthy incarceration period is possible. If the client has never spent significant time in prison before, counsel should remind the judge that studies show “that offenders serving prison terms for the first time will be more intensely affected by the experience and the State’s [rehabilitation] goals can be achieved in less time.” State v. Earle, 2002 Lexis 4654, at *3 (Ohio Ct. App. Aug. 30, 2002).
Statistics Can Help
However, counsel often overlook the need to present statistics regarding the average sentences given to similarly situated defendants who have committed comparable offenses. For example, take a client who was convicted of three counts of vehicular manslaughter in a state where the statutory maximum for each count is 10 years. The judge has heard tearful testimony from the victims’ families, and she is moved to make a strong statement about how horrible the crimes are by imposing a draconian sentence. The judge announces that this case is the worst case that she has ever seen in her years on the bench, and she sentences the client to 10 years for each count. She further orders that the sentences be served consecutively for a 30-year incarceration term. The judge justifies her decision by observing that the defendant has a long history of accumulating driving under the influence (DUI) offenses and received prior numerous warnings. She notes that the defendant’s blood alcohol content was twice the legal limit and his license had been revoked.
All sounds facially reasonable, until defense counsel presents evidence that the average vehicular homicide sentence in the state is two years per count. And then he shows that the same “aggravating” factors listed by the trial judge to justify the 30-year incarceration term were equally applicable to other defendants who received far shorter periods from other judges—be it because the sentences were less than the maximum or the sentences were to be served concurrently. Even better is evidence that another defendant received a comparable sentence and the circumstances of the offense were far more egregious.
Counsel should learn the average sentences for whatever counts the client has been convicted. Counsel should also try to find the types of sentences (especially lenient sentences) given to similarly situated defendants. Simple Internet searches can reveal examples from newspaper accounts of previous trials. Counsel should ensure that the trial judge knows of those statistics and examples before the sentence is imposed.
Judges are well aware of their powers over the defendant’s liberty, and judges are human. In my experience, few judges wish to be known as the outliers who impose extraordinarily harsh sentences on defendants based on factors that other judges have deemed within the norm. Indeed, many states have either legislative or common-law dictates that maximum sentences should be limited to the worst offenders. See, e.g., State v. Schofield, 895 A.2d 927, 930 (Me. 2005) (maximum sentences warranted only for “the most heinous and violent crimes committed against a person”); Johnson v. State, 830 N.E.2d 895, 898 (Ind. 2005) (“Maximum sentences are reserved for the worst offenders and offenses.”).
Returning to the example of vehicular homicide, it may seem at first blush that driving without a valid license would be an aggravating factor. But most judges who hear traffic cases are well aware that people (unfortunately) drive without valid licenses all the time. If a sentencing judge wishes to impose the maximum or near-maximum sentence, then the aggravating factors should truly be extraordinary. If the sentencing judge says that this was the worst case that she had ever seen, then it is counsel’s responsibility to educate the judge with evidence of more egregious cases. In my example, counsel should look for instances in which the defendant committed vehicular homicide while fleeing the police or had killed someone else in a similar manner years earlier and then engaged in the same reckless conduct again.
Except in rare circumstances, Eighth Amendment challenges to noncapital sentences are limited to actual incarceration periods. See, e.g., Cathcart v. State, 901 A.2d 262, 270 (Md. Ct. Spec. App. 2006), vacated on other grounds, 916 A.2d 1008 (Md. 2007). If a judge imposes the maximum sentence for multiple counts, but orders that the sentences be served concurrently or suspends a good portion of the incarceration period, then there usually is no Eighth Amendment violation.
Appealing criminal convictions is difficult, and appealing excessive sentences is not much easier. But there are ways for counsel to improve chances of getting an excessive sentence reversed or at least reduced on appeal.
On appeal, counsel should attempt to obtain the most favorable standard of review, often a source of confusion when attacking excessive sentences. The Supreme Court held that de novo review is appropriate when evaluating Eighth Amendment challenges. United States v. Bajakajian, 524 U.S. 321, 336 & n.10 (1998). Although Bajakajian involved excessive fines, federal courts of appeals agree that constitutional challenges to sentences are reviewed de novo. However, nonconstitutional challenges to sentences (e.g., whether the sentence was a substantively unreasonable upward departure from sentencing guidelines) are reviewed for an abuse of discretion. Gall v. United States, 552 U.S. 38, 45–46 (2007). Governments almost always defend excessive sentences on appeal by citing the discretion of the trial judge, so defense counsel should ensure that the appellate court is aware of the de novo standard.
Even in the proportionality challenges, appellate courts often defer to the sentencing judge. Be prepared to address this tendency head-on. In theory, the sentencing judge has more expertise in administering sentences and has the opportunity to observe the defendant and other trial participants firsthand so that she may fashion the most appropriate sentence based on the personal circumstances of the defendant. While these notions can be true to a large extent, they do not address the problem of judge A in Springfield County imposing “superlong” sentences while judges B, C, D, E, and F in Springfield County—as well as other judges in other counties—are handing down more reasonable sentences for similar offenders. Counsel should argue that the best body to resolve large and seemingly arbitrary disparities in sentences is the court of appeals. As the New Jersey Supreme Court once put it, “Sentencing should not depend on chance or the luck of the judicial draw.” State v. Roach, 772 A.2d 395, 398 (N.J. 2001). Make sure the appeals court knows of any glaring differences in sentencing outcomes.
Counsel must also overcome deference to the legislatures that prescribe the limits of sentences. Many argue that the legislatures are better suited to determine appropriate punishment, and attempts by the courts to reduce sentences are an affront to the separation of powers. But deference to the legislature should not displace the judicial responsibility of appellate review of “superlong” sentences.
Suppose your client has previous DUIs and is driving intoxicated and without a valid license. He strikes a bus and kills a dozen people. The sentencing judge orders that the defendant serve 12 sentences of the 10-year maximum, consecutively, for a 120-year prison term. Even if the prescribed statutory penalty for each count is 10 years, would it really be an affront to the legislature if an appellate court reduced the sentence to 60 years? Or 30 years? Surely, those are still significant sentences that faithfully serve the state’s rehabilitation goals and send a message that violations of the criminal code will not be tolerated. Counsel should argue that anything more is unnecessary overkill.
Counsel should be aware that governments often argue that mitigation and background evidence are irrelevant in review of excessive sentences. Whether or not this argument ever had merit, the Supreme Court recently made clear that a defendant’s background is indeed part of the Eighth Amendment review. See Miller, 132 S. Ct. at 2462, 2469 (noting defendant’s troubled background).
Fighting Consecutive Sentences
One of the most frustrating aspects for defense counsel in challenging excessive sentences is the inconsistency among jurisdictions—or even among judges within a jurisdiction—in the application of consecutive sentences. Most legislatively prescribed sentences do not implicate the Eighth Amendment on their face. Indeed, many would agree that a maximum sentence of (for example) 10 years for a vehicular homicide, a securities fraud, or using a firearm in the commission of a crime sounds about right. Also, when a sentence falls within sentencing guidelines, there usually is no Eighth Amendment issue.
Eighth Amendment issues typically arise when the defendant receives consecutive sentences for multiple offenses—especially in cases where one “act” resulted in multiple victims. Some courts have held that consecutive sentences in such cases are generally inappropriate. See, e.g., State v. Lewis, 416 So. 2d 921, 925 (La. 1982) (“The imposition of consecutive sentences for crimes arising from a single course of conduct requires particular justification.”); State v. Pete, 420 P.2d 338, 342 (Alaska 1966) (Consecutive sentences on two counts involving unlawful sale of liquor was excessive where the two offenses were part of one transaction.). Others see no problem in such circumstances, reasoning that the relevant statute allows for sentences for “each” count. See Savoy v. State, 508 A.2d 1002 (Md. Ct. Spec. App. 1986).
And even in situations where the offenses are separate and distinct (serial rapes, for example), some Eighth Amendment challenges may be viable. Jurisdictions are split on whether the total sentence must be reviewed in the aggregate for excessiveness purposes or whether reviewing courts look at individual sentences count by count. Compare, e.g., State v. Gonzalez, 796 N.E.2d 12, 18 (Ohio Ct. App. 2003) (“Consecutive sentences are disfavored and will not be approved if they are disproportionate to the crimes involved.”), and State v. Bourdreaux, 945 So. 2d 898, 903–4 (La. App. 2006) (Consecutive sentences totaled an excessive punishment.), with Malee v. State, 809 A.2d 1, 8 (Md. Ct. Spec. App. 2002) (refusing to review 450-year incarceration for sexual assault crimes as a “sentence” and instead viewing each of 30 consecutive sentences for excessiveness individually) and People v. Kent, 486 N.W.2d 110, 112 (Mich. Ct. App. 1992) (“[C]umulative nature of sentences is irrelevant to determination as to whether sentences are excessive.”). Jurisdictions that follow the latter view have effectively declared that Eighth Amendment review for excessiveness is not viable.
Federal courts have not embraced the “cumulative review” of consecutive sentences. Prior to the Supreme Court’s decision in Solem, most federal courts held that if a sentence was within proscribed statutory limits, there could be no Eighth Amendment violation. See, e.g., Boerngen v. United States, 326 F.2d 326, 329 (5th Cir. 1964). Even after Solem rejected the notion that a legislature’s imprimatur automatically insulated a sentence from Eighth Amendment review, most federal appellate courts continued to review consecutive sentences on a count-by-count basis. Indeed, the Ninth Circuit was following circuit precedent in the Major case when it upheld the incarceration periods of nearly 750 years. Judge Noonan’s dissent in Major effectively called the sentence-by-sentence review approach an “utterly empty gesture” when the aggregate sentence cannot possibly be served by a defendant.
It should be noted that federal courts have held that harsh sentences coupled with harsh fines may implicate the Eighth Amendment. See, e.g., United States v. Alexander, 32 F.3d 1231, 1237 (8th Cir. 1994) (remanding for excessiveness analysis to “consider the sentences imposed in determining whether the forfeiture has been grossly disproportionate”); United States v. Littlefield, 821 F.2d 1365, 1368 (9th Cir. 1987) (noting that the court must determine that the forfeiture of the entire property “together with other punishments imposed is not so disproportionate to the offense committed as to violate the Constitution”); United States v. Busher, 817 F.2d 1409, 1415 n.10, 1416 (9th Cir. 1987) (remanding to assess whether combined penalties of forfeiture, jail time, and fines exceed constitutional limits and directing the trial court to limit either the forfeiture or the other penalties if it does). If there is a logical reason why a sentence and a fine may be evaluated in the aggregate for Eighth Amendment purposes, but consecutive sentences must be evaluated individually, I am not aware of it.
Many common-law countries agree that the total sentence in the aggregate is to be considered for excessiveness, rather than evaluating individual sentences in isolation. See, e.g., R. v. Bocskei,  54 Cr. App. R. 519 at 521 (English law; “when consecutive sentences are imposed the final duty of the sentencer is to make sure that the totality of the consecutive sentences is not excessive”); R. v. M. (CA),  1 S.C.R. 500 (effectively the same under Canadian law); R. v Michael Arthur Watts  NSWCCA 167 (effectively the same under Australian law). The Supreme Court has looked to international law in interpreting the Eighth Amendment. See, e.g., Atkins v. Virginia, 536 U.S. 304, 316–17 n.21 (2002) (“Within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.”).
The notion that it is too difficult for judges to determine when the Eighth Amendment line has been crossed by an excessive sentence is not convincing. If the concern is that the excessiveness inquiry is substantively challenging, the response is that judges are expected to resolve numerous arcane and difficult disputes on a daily basis. Parisi v. Davidson, 405 U.S. 34, 52–53 (1972) (Douglas, J., concurring). If judges can determine when a large award of punitive damages is unconstitutional, then surely they can decide when a period of incarceration is excessive. And thanks to the Internet, it should not be difficult at all to research and ascertain whether a sentence is far beyond the norm given to comparable offenders.
Indeed, a number of states routinely review and reduce excessive sentences to ensure that similarly situated defendants are treated uniformly. Alaska, Illinois, Indiana, and Louisiana are states that appear to take proportionality review seriously, but several others have a good track record in this regard as well. These states have developed an extensive body of case law articulating appropriate sentencing principles for many classes of offenses—including regulating the total aggregate terms of sentences imposed consecutively. See, e.g., State v. Fine, 22 P.3d 20, 23 (Alaska Ct. App. 2001) (finding seven-year sentence for vehicular homicide defendant excessive and reducing sentence to five years).
In challenging an excessive sentence on appeal, counsel should be aware of all precedents governing the jurisdiction’s review of lengthy sentences. To the extent precedent permits, counsel should argue that the excessiveness review should be done in the aggregate, rather than count by count. Counsel should also follow Judge Posner’s lead from Craig and remind the court of the societal costs of “superlong” sentences and contend that excessive sentences—even if constitutionally permissible—should generally be reserved for only the worst of the worst offenders.
It remains to be seen whether the Supreme Court will revitalize the disproportionality principle beyond life sentences for juvenile offenders, but counsel should be prepared to argue that a client’s “superlong” sentence should be subjected to real appellate review and that the Eighth Amendment’s prohibition against cruel and unusual punishment is not an empty formality.