A “Shell” Game in the Sixth Circuit?

In US v. Young, the Sixth Circuit recently affirmed a startlingly severe sentence for what seems like innocuous conduct, and the blogosphere has taken note (h/t Sentencing Law & Policy). As Eugene Volokh put it in his post title, the case involved a “15-year mandatory minimum federal sentence for possessing shotgun shells (no shotgun) almost 20 years after past felonies.” The case might go to the Supreme Court on the Eighth Amendment question it raises.

Viewed from another angle, Young illustrates two reasons to lament the rarity of executive clemency. First, whether Young’s sentence is just seems to depend on factors that weren’t pressed in court but that executive officials likely know about. A robust clemency tradition would bring those factors to light. Second, in the absence of executive clemency, the Sixth Circuit seems to have reached outside the proven record to do the executive’s job for it—and, in doing so, the court relied on allegations and innuendo instead of judicial findings.

Here are the basic facts, from the start of the Sixth Circuit’s opinion.

Edward Young received a mandatory fifteen-year prison sentence for the crime of possessing seven shotgun shells in a drawer. He came into possession of the shells while helping a neighbor sell her late husband’s possessions. When he eventually discovered them, he did not realize that his legal disability against possessing firearms—resulting from felonies committed some twenty years earlier—extended to ammunition. See 18 U.S.C. § 922(g)(1). Under the Armed Career Criminal Act (ACCA), Young received a mandatory fifteen-year sentence.

Young now asks this court to conclude that the ACCA, as applied to him, is unconstitutional under the Eighth Amendment because the gravity of his offense is so low as compared to the harshness of his sentence, and unconstitutional under the Fifth Amendment because he lacked notice. Our precedent compels us to reject these claims and to affirm Young’s sentence.

This synopsis makes Young’s sentence seem truly extreme, and it’s understandably been the focus of blog commentary. Some think that Young’s sentence violates the Eighth Amendment, and others think it shows the foolishness of federal sentencing law.

But the opinion in Young quickly complicated this innocent-looking picture:

Police officers later showed up on Young’s doorstep investigating recent burglaries at an auto repair shop and a storage building. During the consent search, officers found several items reported stolen, though it is unclear whether the items were associated with the recent burglaries. They also found the box of seven shotgun shells in a drawer, which Young readily admitted to possessing.

In this passage, the Sixth Circuit insinuated—without actually finding or substantiating—that Young was involved in recent crimes. And if that insinuation were accepted as true, then Young’s sentence wouldn’t seem nearly so severe.

The Sixth Circuit’s more complex picture of the case directly affected its analysis of Young’s Eighth Amendment claim. Here is the relevant portion of the opinion, which I’ve organized into three paragraphs:

Young’s Achilles heel, however, is his recidivism. . . . Young’s recidivism, resulting from numerous felony convictions roughly twenty years prior to his present offense, increases the gravity of his offense . . . .

On the other hand, these offenses occurred long ago, with Young’s most recent release from prison in 1996. In the meantime, his only conviction for any crime was misdemeanor assault in 2005, for which he spent no time in jail.

But the remoteness is offset somewhat by the offense conduct listed in the PSR. We make no findings as to whether Young actually committed new burglaries in 2011, but it is relevant that the ammunition was found during a search for stolen tools and that several stolen items were found in Young’s house.

The reasoning above goes something like this: (i) the defendant’s recidivism is the single strongest point against his Eighth Amendment claim; (ii) in principle, the critical recidivism point could be discounted, given that the defendant’s past crimes “occurred long ago”; (iii) however, the recidivism point is ultimately decisive because of “relevant” facts raising the possibility that the defendant recently committed “new burglaries.”

Put more succinctly, the Sixth Circuit seemed to treat the allegations in the PSR and the circumstances of the investigation as decisive—even though the court made “no findings” as to whether Young had “actually committed” any new offenses.

Viewing Young in this way has two implications.

First, whether Young’s particular sentence is just may turn on whether the insinuated “new” crimes actually took place. At this point, however, that issue is best addressed outside of court. The public should therefore press the Executive to justify its initial charging decision in this case, as well as its ongoing decision not to grant a pardon. Maybe a good justification is available; maybe it’s not. But the public should try to find out.

Second, the Sixth Circuit should not have relied on the insinuated “new” crimes in the way that it did. Whereas the Executive’s role is to think broadly about justice and policy, courts should follow legal procedures and stay close to the record. Maybe Young’s Eighth Amendment claim should prevail; maybe it should lose. But its viability shouldn’t turn on mere insinuations of wrongdoing that the court is unwilling to test or endorse.

In sum, Young’s appeal should be heard not just in federal court, but also in the court of public opinion. And the criminal justice system works best when each type of “court” sticks to its distinctive role.

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