Liberty’s absence in jurisprudence and practice regarding extreme prison sentences
Our nation has long valorized liberty. The Declaration of Independence champions “life, liberty and the pursuit of happiness." The U.S. Constitution’s preamble declares that the document seeks to "secure the Blessings of Liberty to ourselves and our Posterity." President Abraham Lincoln’s Gettysburg Address describes the United States a nation "conceived in liberty." And yet our historic commitment to the concept of liberty does not always find expression in our sentencing systems. My review of briefs filed in a pending Supreme Court case prompts me to grouse here about an example of liberty’s conspicuous absence in our sentencing jurisprudence and practices.
Based on the briefs, we should expect the oral argument next week in Hewitt (et al.) v. U.S. to focus not on liberty, but on a few words in the 2018 First Step Act. Before turning to the Hewitt briefs, consider the federal sentencing laws and practices undergirding a case that started in 2008 when Corey Duffey, Tony Hewitt, Jarvis Ross and others carried out armed bank robberies in the Dallas area. These serious criminals certainly deserve serious punishment for their serious crimes. But the operation of 18 U.S.C. § 924(c), which requires consecutive mandatory prison terms for firearm possession during violent or drug trafficking crimes, made their 2009 sentencing truly ridiculous – i.e., they received sentences that merit ridicule in a nation purporting to regard liberty as a paramount value.
When these defendants were first sentenced, federal law provided that one § 924(c) conviction required the imposition of a five-year minimum prison term – consecutive to any other sentence imposed – while additional § 924(c) convictions mandated an additional consecutive 25 years. So if a person, let’s call him Weldon Angelos, was convicted of two gun possession counts in conjunction with marijuana sales, federal law (prior to the First Step Act) mandated 30 years in prison for the § 924(c) counts (5 + 25) in addition to a term for marijuana trafficking. (Notably, a prison sentence of 30 years would be, according to data assembled by the Council on Criminal Justice, many times longer than typical prison terms for murder and sexual assault in nearly every other nation in the world.)
Of course, Weldon Angelos is not a hypothetical defendant: in 2004 he was convicted of three § 924(c) counts in conjunction with low-level marijuana distribution. Then-Judge Paul Cassell, required by federal law to impose a minimum sentence of 55 years in prison, authored a renowned opinion lamenting this extreme outcome: “The court believes that to sentence Mr. Angelos to prison for the rest of his life is unjust, cruel and even irrational.” But Cassell concluded constitutional doctrines did not allow him to avoid imposing well over a half century of imprisonment even when doing so appeared “unjust, cruel, and irrational.” While calling for Angelos to eventually receive clemency, Cassell asserted that only Congress could “fix this problem” of extreme stacked § 924(c) sentences.
In a 2011 mandatory minimum report, the US Sentencing Commission also urged Congress to fix this problem, detailing how “stacking of mandatory minimum penalties for multiple violations of section 924(c) results in excessively severe and unjust sentences in some cases.” Data in that report, as well as a 2018 report on firearm offenses, suggest there are thousands of persons serving decades upon decades in federal prison based on stacked § 924(c) charges. Indeed, as the Hewitt cases highlight, some persons with stacked § 924(c) charges have been sentenced to federal prison for centuries upon centuries.
Since the 2004 Angelos opinion, various constitutional doctrines have been evolving (particularly with the U.S. Supreme Court’s originalist turn), but a liberty-driven jurisprudence to limit extreme prison punishments for adults is still yet to emerge. Thankfully, Congress, through the 2018 First Step Act (FSA), finally – though only partially – addressed the § 924(c) stacking problem. Among FSA reforms, Congress modified the mandatory terms for those with multiple § 924(c) convictions so that each additional count stacks “only” five years of additional mandated imprisonment. And yet, Congress did not provide for this “fix” to apply retroactively to those previously sentenced to extreme stacked § 924(c) terms. Rather, Congress set forth in the FSA that the new § 924(c) terms only apply “if a sentence for the offense has not been imposed as of such date of [the FSA’s] enactment.”
Returning then to Corey Duffey, Tony Hewitt and Jarvis Ross, here is a review of their crimes and convictions as described in a Government submission to the Supreme Court:
Between January and June 2008, petitioners and several confederates conspired to commit a series of bank robberies in the Dallas-Fort Worth area of Texas. The group, known as the “Scarecrow Bandits,” stole a total of more than $350,000 from several financial institutions. Hewitt and Duffey were the group’s leaders; they recruited members and notified them of the time and place of those robberies, with Hewitt giving orders during the robberies. On June 2, 2008, while poised to rob a bank in Garland, Texas, petitioners and several of their confederates were arrested while in possession of masks, handcuffs, rope, stun guns, loaded weapons, and ammunition….
Each petitioner was charged with multiple counts of conspiracy, attempted bank robbery, and bank robbery; Ross was also charged with kidnapping. In addition, Hewitt and Duffey were charged with 14 counts of using or carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c), and Ross was charged with 13 Section 924(c) counts. Petitioners and two co-defendants proceeded to trial, and a jury returned a guilty verdict against each petitioner on all counts.
Because of the stacking of § 924(c) convictions under pre-FSA law, Duffey and Hewitt faced a mandatory minimum of 330 years in prison; Ross faced a 305-year minimum. Their sentencing judge apparently decided these multi-century minimums were insufficient: Duffey’s original sentence was 354 years, Hewitt was sentenced to 355 years, and Ross was sentenced to 330 years. In my view, “ridiculous” is the fitting word to describe sentences five times longer than any reasonable life expectancy, for sentence lengths so extreme they can hardly be mentally processed.[1] (Consider this: had the British captured signers of the Declaration of Independence and given them prison sentences of these lengths for treason back in 1776, John Adams, Thomas Jefferson and others would still today have roughly 100 more years to serve.)
It bears noting the federal sentencing players and practices that underwrite such ridiculous prison sentences. Federal prosecutors in these cases apparently had no constitutional or other concerns with charging more than a dozen § 924(c) counts mandating centuries of prison time. Of course, charges threatening extreme prison time are often expected to induce a plea, and usually do. But here they did not; and still, after trial, federal prosecutors apparently had no constitutional or other concerns in requesting the imposition of multi-century sentences. In turn, federal judges imposed and upheld prison terms lasting a third of a millennium and did so seemingly without questioning the constitutionality or sanity of imposing sentences that are facially irrational and conceptually ridiculous.
The Hewitt defendants are now before the Supreme Court, not because there is any clear legal basis to challenge past ridiculous § 924(c) prison terms even after the FSA, but because a few of their § 924(c) counts were reversed on technical grounds and they faced resentencing after the FSA’s enactment. Because Congress did not provide for the FSA’s reduced § 924(c) terms to apply retroactively to previously imposed stacked sentences, lower courts have divided over whether these reduced terms should apply at a post-FSA resentencing of defendants subject to the extreme pre-FSA § 924 terms at their initial sentencing.
Given our founding commitment to “life, liberty and the pursuit of happiness,” and our Constitution’s goal to secure “the Blessings of Liberty,” one might expect and hope a concern for human liberty would be a central aspect of this legal dispute over decades upon decades of imprisonment. But discussions of liberty is almost entirely absent in the briefs submitted in the Hewitt cases; across nearly a dozen briefs from the parties and amici, the vast bulk of the arguments are devoted to parsing the words “sentence” and “imposed” and debating statutory syntax rather than engage with liberty as a fundamental value or with limits on the state’s power to punish extremely.
The Biden Administration, after initially asserting in lower courts that the FSA’s reduced terms did not apply to those first sentenced before the Act, now argues to the Supreme Court that Hewitt and his co-defendants at resentencing should face “only” an added five years for each additional § 924(c) count. But conspicuously, over two briefs and 50 dense pages, the word “liberty” does not appear a single time (nor does “freedom”) in the government’s arguments. The words “text” and “finality” appear in the briefs dozens of times, and there is some discussion of “Congress’s intent” and the “FSA’s purpose,” but there is no engagement whatsoever with what re-imposition of extreme mandatory prison terms might mean for our constitutional values or what substantive purposes are served (or undermined) by imposing centuries rather than just decades of prison time on individuals.
The defendants’ briefs mention the word “liberty” in a few instances, but again words like “text” and “finality” appear dozens more times, reflecting the disconcerting reality that some modern sentencing jurisprudence is focused more on wordsmithing than on fundamental constitutional values and punishment purposes. Similarly, the brief for the appointed amicus supporting the judgment below does not mention liberty or freedom a single time, and it stresses repeatedly that the “text is what matters” over any “appeal to purpose and policy” related to the FSA’s enactment.
While troubled by the textualism über alles in the Hewitt briefs, I suppose it is unfair to fault the advocates for being responsive to the cues provided by the current Justices. For example, last term, in a statutory case also dealing with the reach of an FSA ameliorative provision (Pulsifer v. United States), and in a constitutional case dealing with the safeguard of the Eighth Amendment (Grants Pass v. Johnson), the state’s power to punish readily prevailed over claims that this power was at risk of being used in a manner, to parrot Cassell’s phrasing, that appeared “unjust, cruel, and irrational.” When the Supreme Court has showed little concern for liberty as a value – or for developing a robust jurisprudence with substantive limits on the state’s power to punish with extreme prison terms – it is not all that surprising that advocates shy away from arguments with potentially broader constitutional valence.
That said, I will close this discussion by lamenting a particular missing argument in Hewitt briefs. The Supreme Court stated in Graham v. Florida that a “sentence lacking any legitimate penological justification is by its nature disproportionate to the offense” and thus violative of the Eighth Amendment. The chief dissent in Graham, while disputing whether Florida’s use of life sentences for juveniles advanced goals like deterrence and incapacitation, did not take issue with the majority’s assertion that wholly pointless punishment would be constitutionally problematic. In turn, given that it seems entirely pointless, as well as ridiculous, to reimpose multi-century (and congressionally repudiated) prison terms on defendants like Corey Duffey, Tony Hewitt and Jarvis Ross, I am troubled the Hewitt briefs do not raise any constitutional clams based in the Eighth Amendment or even the statutory argument of constitutional doubt. Again, given modern practices and jurisprudence, I am not actually surprised that a case about decades, even centuries, of imprisonment do not engender robust constitutional arguments. But, as I see it, this reflects problems with our modern practice rather than with our founding constitutional commitments.
[1] Had Congress provided for a mandatory life sentence for multiple § 924(c) convictions, such sentences would still be extreme, but not conceptually ridiculous. And, critically, Congress never actually enacted a statute providing for mandatory life sentences for multiple § 924(c) convictions, even though charging and sentencing practices have produced triple-digit prison terms that are functionally life sentences.