Fourth Circuit upholds harsh piracy punishment against Eighth Amendment challenge

|The Volokh Conspiracy |

The Fourth Circuit recently overturned an unusual district court ruling that had held that the United States' mandatory life sentence for any acts of piracy violates the Eighth Amendment's ban on cruel and unusual punishment. The particular case, United States vs. Said, involved defendants who had (mistakenly) attempted to hijack a U.S. Navy destroyer. Naturally they did not get far, or hurt anyone, and the district judge had thought a life sentence for such a crime grossly "disproportionate."

Immediately after the ruling below, I argued that it was wrong, and predicted reversal—which did not require clairvoyance, as a court finding non-capital punishment unconstitutionally disproportionate is almost unheard of. It would be particularly notable for the federal piracy statute, which has required life in prison since the late 19th century, when it had been liberalized from the mandatory death penalty provided for by the First Congress.

In its Said opinion, the Fourth Circuit found the nature of the crime as a category more important than the individual specifications. It held that "§ 1651's mandatory life sentence reflects a rational legislative judgment, entitled to deference, that piracy in international waters is a crime deserving of one of the harshest of penalties." It went on to recount the centuries-old international condemnation of piracy, because of its serious effects on global commerce. Furthermore, the Framers specifically gave Congress the power to punish it, and Congress has done so, starting with the death penalty in 1790/1819, and by life in prison since 1909. Moreover, piracy often—though not in this case, involves the kidnapping, torture and even murder—of the victims. Thus the problem justifies "strong medicine."

The Court did not address an argument pressed by the defense and district court, that when Congress enacted the current law (1909), life sentences and more often death sentences were the international norm for piracy. Today, the U.S.'s mandatory minimum life sentence is an extreme outlier internationally, and certainly the far most severe sentence in the Western world. For more data and context on the disparities in transnational piracy punishments, see my essay "The Problems of Pirate Punishment" in the newly-published Prosecuting Maritime Piracy: Domestic Solutions to International Crimes.

Such arguments about developing international standards have of course been quite influential with the Supreme Court in death penalty cases, but got no attention here, perhaps underscoring how the exceptional (and in my view excessive) scrutiny for capital punishment often goes hand-in-hand with a fairly accepting stance towards the generally draconian nature of federal jail sentences.

The Court did conclude that it was still appropriate to attach a mandatory life sentence to a crime whose definition has changed (as a result of the United Nations Convention on the Law of the Sea, which someone broadens the conduct that can constitute piracy): "Congress clearly meant to attach the mandatory life sentence to piracy, however defined by the law of nations at the relevant time." (emphasis added). That last part is fairly interesting, and not entirely obvious.

I'm hardly a fan of relating to international standards under the Eighth Amendment, but if there was ever a case for it, it would be here, with an international offense. The definition of the crime changes to track international developments, but not the punishment.

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Two more aspects of the case bear noting. In a limited sense, the ruling marks a limited revival of the doctrine of common-law crimes. The Court rules, in accord with another recent Fourth Circuit piracy case, that Congress can criminalize an offense—"piracy"—but have its definition track changing definitions in customary international law over time (see pg. 39, n. 14.). To be sure, it is not the pure common law crime, because it does require an initial congressional act of criminalization.

Call it defining "Defining" down. One might argue that if a bare-bones, self-updating definition suffices with piracy and offenses against the law nations (where the Constitution requires Congress to "Define" such crimes for them to be punishable) then perhaps in other areas, crimes could be punished even without a place-holder legislative definition. And that is the quite close to the doctrine of common law crimes. This question is somewhat related to the issues of delegation to courts that Sasha has been discussing here lately, but is even broader—it is delegation to international custom.

Finally, the Fourth Circuit in Said also rejects the notion that piracy requires some component of robbery. That argument, which had previously been asserted by Sea Shepherd in their defense to an Alien Tort action by Japanese whalers, had always been quite weak in my view. The Fourth Circuit explicitly sides with the Ninth Circuit's broader view of the definition of piracy.