Center on the Administration of Criminal Law

Sentencing

The Center files briefs addressing important issues regarding sentencing and mass incarceration. Such cases have included:

  • Alleyne v. United States and United States v. Burwell -- Supreme Court of the United States -- the Center filed an amicus brief in each of these cases, both dealing with aspects of 18 U.S.C. 924(c), which imposes a mandatory 30-year sentence upon anyone who carries a machinegun during the commission of a crime a violence. In its brief in Alleyne, the Center argued that the fact that triggers the mandatory minimum sentence (that is, possession of a machine gun) should be found by a jury beyond a reasonable doubt rather than by a judge by a preponderence of the evidence. In its brief in Burwell, the Center argued that the Constitution and current case law require the government to prove not merely that the defendant possessed the intent to commit a crime of violence, but also that the defendant had the distinct mens rea to possess or use a "machine" gun during the commission of the offense. These briefs were filed in support of the defendants in two separate litigations, in partnership with the law firm Jenner & Block.
  • Angelos v. United States -- United States District Court for the District of Utah -- This case presents the issue of whether a prosecutor should charge a defendant with no criminal record in a manner that, upon conviction, requires a 55-year mandatory minimum sentence for twice selling approximately $350 of marijuana while armed to a confidential informant and for possessing a gun in his home on another occasion, where that charging decision and sentence contravene the Eighth Amendment, separation of powers principles, Department of Justice charging standards and practices, and the expressed opinions of the trial judge and jury. This amicus brief was filed in support of the defendant, in partnership with the law firm Jenner & Block.
  • Brown v. Plata -- Supreme Court of the United States -- The Center, joined by 30 leading criminologists, filed an amicus brief in the Supreme Court defending a three-judge panel order that directed the state of California to reduce prison overcrowding to 137.5% of design capacity in order to alleviate unconstitutional conditions in the state prison system. The brief argued that empirical evidence shows that California and other states have reduced prison population without adversely affecting public safety. This amicus brief was filed in support of the appellees, in partnership with the law firm Kellogg, Huber, Hansen, Todd & Evans LLP. The case was argued on November 1, 2010. On May 23, 2011, the Supreme Court sided with the Center and affirmed the lower court order.
  • Dorsey v. United States and Hill v. United States -- Supreme Court of the United States -- The Center filed an amicus brief in support of petitioners, arguing that the repealed 100:1 ratio of crack cocaine penalties compared to power cocaine penalities should not be imposed against "pipeline" defendants. This amicus brief was filed in partnership with the law firm Shapiro, Arato, & Isserles.
  • Krieger v. United States -- Supreme Court of the United States -- Following up on the Center's brief in United States v. O'Brien (discussed below), the Center again filed an amicus brief arguing that the logic of the Supreme Court's decision in United States v. Booker made clear that Harris v. United States is no longer good law, and therefore facts that trigger mandatory minimum sentences must be treated as offense elements. This amicus brief was filed in support of the petition for writ of certiorari, again in partnership with the law firm Jenner & Block. The Supreme Court denied certiorari on October 3, 2011.
  • United States v. O'Brien -- Supreme Court of the United States -- In this case, the Center filed an amicus brief arguing that the logic of the Supreme Court's decision in United States v. Booker made clear that Harris v. United States is no longer good law, and therefore facts that trigger mandatory minimum sentences must be treated as offense elements. This amicus brief was filed in support of the defendant, in partnership with the law firm Jenner & Block. The case was argued on February 23, 2010. On May 24, 2010, the Court issued a unanimous opinion siding with the Center. In his concurrence (see footnote 6), Justice Stevens pointed out that, at oral argument, Justice Breyer embraced the argument advocated in the Center's brief that Harris should be overruled.
  • Graham v. Florida and Sullivan v. Florida -- Supreme Court of the United States -- In this case, the Center filed an amicus brief in support of the petitioners, who are juveniles serving life sentences without the possibility of parole. Sullivan was sentenced to life without parole for a crime he committed at the age of 13, and is one of only two 13 year olds in the United States serving such a sentence for a non-homicide crime. After being sentenced to probation for a non-homicide crime he committed at the age of 16, Graham received a life without parole sentence for, while still a juvenile, violating the terms of his probation. The Center's brief argued that the text and history of the Eighth Amendment indicate that the "Cruel and Unusual Punishments" Clause prohibits disproportionate criminal sentences, that such proportionality review is necessary in light of the expansion of criminal laws and sentences and the concentration of unreviewable discretionary power in the hands of prosecutors, and that the Supreme Court's practice of applying a robust proportionality review in the capital context while virtually eliminating proportionality review in the noncapital context is unjustified. This amicus brief was filed in partnership with the law firm Steptoe & Johnson. Sullivan and Graham were argued on November 9, 2009. On May 17, 2010, the Court agreed with the Center and ruled for Graham; Sullivan's writ was dismissed as improvidently granted. In his dissent in Graham, Justice Thomas cited Faculty Director Rachel E. Barkow's article, "The Court of Life and Death: The Two Tracks of Constitutional Sentencing Law and the Case for Uniformity, 107 Mich. L. Rev. 1145, 1160 (2009), for the limited proposition that the Court's decision in Solem v. Helm is an outlier within the Court's jurisprudence.