Pubdate: Thu, 04 Dec 2014
Source: Los Angeles Times (CA)
Copyright: 2014 Los Angeles Times
Contact:  http://www.latimes.com/
Details: http://www.mapinc.org/media/248
Authors: Robert Smith and G. Ben Cohen
Note: Robert Smith is an assistant professor of law at the University 
of North Carolina, Chapel Hill. G. Ben Cohen is an attorney with the 
Promise of Justice Initiative in New Orleans.

TOSS A FISH, GO TO PRISON?

Should a fisherman face two decades in prison for discarding a few 
fish at sea? That question is at the core of a statutory 
interpretation case the Supreme Court heard in November, but it also 
raises another question: What does "cruel and unusual punishment" mean today?

When a Florida fish and wildlife officer boarded John Yates' fishing 
boat, he found a number of fish too small to be legally caught. 
Before reaching land, Yates discarded three of the fish. To punish 
him, federal prosecutors used a white-collar crime statute 
criminalizing the destruction of "any record, document or tangible 
object" intended to obstruct a federal investigation.

During oral arguments, Justice Antonin Scalia observed that Yates 
could have received 20 years and asked the prosecutor: "What kind of 
sensible prosecution is that?" The lawyer for the government 
responded that federal prosecutors often do not prosecute such 
offenses, but when they do they pursue "the offense that's the most 
severe under the law." Scalia retorted: "If that's going to be the 
Justice Department's position, then we're going to have to be much 
more careful about how extensive statutes are."

Amen to that. The courts should be much more careful.

Yates received a 30-day prison sentence but is appealing his 
conviction, contending that the law known as Sarbanes-Oxley is 
intended to cover shredded documents, not dead fish. To address 
Scalia's question, though, a 20 year sentence for throwing three fish 
into the ocean would be cruel and unusual.

The judiciary needs to vigorously guard against statutes that allow 
excessive punishment. Our legislators are human. They read the news. 
They are subject to the same vulnerabilities and weaknesses as the 
rest of us. Our criminal penalties too often reflect the fear and 
anger triggered by some salient event, not a cold and sober calculus 
about what harm was caused or what deterrent is necessary.

The problem is that once crime-fighting legislation is passed, it is 
very difficult to undo. General societal anxiety around crime means 
that candidates rarely propose reducing criminal sanctions when they 
are running for office. As Justice Stephen G. Breyer puts the point, 
politicians "were in the popular club in high school" and they know 
how to "hold their finger up to the wind to measure popularity."

Given the stickiness of criminal statutes, the responsibility of the 
judiciary is to question whether Americans would tolerate the 
punishment if it were applied routinely to everyone who commits the 
offense. Any punishment that is tolerated only because it is applied 
infrequently and unevenly is not one that the 8th Amendment tolerates.

The Supreme Court's current approach to 8th Amendment claims is 
needlessly obtuse - and results in too little judicial intervention 
into punishment practices.

This argument is not limited to fishermen who throw grouper back into 
the ocean. Draconian punishments are repeatedly given for nonviolent 
drug offenses. For instance, a man in Slidell, La., received a life 
sentence in 2011 for possessing marijuana for the fourth time. There 
is a nearby area in New Orleans where twenty-somethings often possess 
marijuana and, no doubt, could have been convicted multiple times. We 
call that drug-ridden neighborhood Uptown, and its population 
includes Tulane University students, some of whom are the sons and 
daughters of Louisiana's wealthiest residents.

It does not take much reflection to absorb the reality that 
interminable prison sentences for nonviolent marijuana offenses or 
death sentences for homicides would not be tolerated if they were 
applied consistently and evenly to anyone - white or black, rich or 
poor. Most of the people serving excessive prison sentences are among 
the nation's poorest and least influential citizens. No powerful 
lobby presses their plight. And often the loss of franchise is a cost 
of their incarceration. Nobody stands up to protect them.

While the criminalization of marijuana possession may have the 
broadest impact, the haphazard application of the death penalty makes 
the deepest cut. A majority of states have abandoned the death 
penalty in law or in practice. Eighteen states have legislatively 
abolished the death penalty. An additional six states have either not 
imposed an execution or not sentenced anyone to death in a decade. 
The governors of Washington and Oregon have declared formal 
moratoriums on executions. And most Americans live in a place where 
no one has been sentenced to death in years.

We live in a nation that incarcerates a larger percentage of its 
population than any other industrialized nation on Earth. We have 
emptied our public hospitals, mental health wards and drug treatment 
facilities, and filled up our prisons. We treat people who commit 
crimes with a brutality that would be incomprehensible if the people 
who suffered under the burden of this system were the loved ones of 
the people who make and enforce our laws.

This is a judicial failure. If a punishment wouldn't be tolerated if 
applied regularly and evenly, then the power and responsibility to 
ensure that it is not imposed at all rests with the courts.
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MAP posted-by: Jay Bergstrom