Category Archives: National News

Pentagon Weighs Military Response After Syrian ‘Chemical Attack’ On Its Own People

Global outrage is mounting over an alleged chemical attack on a rebel-held town in Syria, as the Pentagon weighs America’s options for a retaliatory strike.

Military action against the regime of President Bashar al-Assad seemed likely, after President Donald Trump warned of a “big price to pay” and spoke of imminent “major decisions” within the next 48 hours.

Defense Secretary Jim Mattis said he won’t rule anything out militarily.

But thanks to the Trump administration’s whipsawing messaging over whether America will even stay in Syria, and the dangerous complexities of the multi-national conflict, the Pentagon’s options appeared limited.

The attack on the rebel-held Syrian town of Douma killed at least 48 people Saturday after a “poisonous chlorine gas attack” in Eastern Ghouta, rescuers and medics said.

By Monday, the United States and France had promised a “strong, joint response” and Britain, too, joined a growing chorus demanding action.

Syria and its ally Russia have dismissed allegations that the attack was carried out by Syrian forces as “fabrications” and have warned against using them to justify military action.

– Russia risks –

Perhaps the biggest risk for Pentagon planners is Russia, and its large presence which since late 2015 has been deeply enmeshed with Assad’s military.

Trump made a rare personal criticism of Russian President Vladimir Putin following Saturday’s attack, a break from his reluctance to single out the strongman by name as he has sought better coordination with Moscow in the Syria crisis.

“President Putin, Russia and Iran are responsible for backing Animal Assad,” Trump wrote in a tweet.

– Past as prelude? –

After a deadly sarin gas attack on the rebel-held town of Khan Sheikhun that killed scores of people in April last year, Trump quickly ordered a retaliatory strike.

The US military blasted 59 Tomahawk missiles at Syria’s Shayrat air base, which the Pentagon said Assad’s jets had used to launch the deadly chemical attack.

The action won Trump bipartisan praise because it was seen as limited in scope and designed to respond to a specific incident, rather than pulling America deeper into Syria’s civil war.

“The president responded decisively when Assad used chemical weapons last year,” Republican Senator John McCain, a frequent Trump critic said.

“He should do so again, and demonstrate that Assad will pay a price for his war crimes.”

– What is the goal? –

Jennifer Cafarella, a Syria analyst for the Washington-based Institute for the Study of War, said Trump’s administration needs to figure out what its long-term goal is in Syria as it weighs its military options.

She described a few potential military responses, including a tactical strike such as the one last year, or a broader attack on Assad’s air forces including taking out his radar and air-defense systems, and hitting multiple air bases.

“I expect the question from the Pentagon to the civilian leadership is what is the goal,” Cafarella said.

She also said another option likely under consideration is to tackle Iranian-backed militias in Syria.

Such a move would not be in direct response to the latest alleged chemical attack, but would signal a willingness to curtail Iranian influence in Syria.

“We want to ask whether the president is going to broaden his response in order to also punish Assad’s backers Russia and Iran,” she explained.

Another possibility is Trump asking an ally to conduct military action against the regime.

On Monday, French President Emmanuel Macron said he and Trump had shared information “confirming” toxic weapons were used in Douma, without elaborating.

– Hawk at Trump’s side –

Trump on Monday began working with his new national security advisor, John Bolton, a staunch hawk on Iran and American military intervention in general, so the president’s outlook on Syria — and whether he still wants to withdraw the roughly 2,000 US forces — may soon morph again.

The US personnel in Syria belong to a coalition providing weapons, training and other support to forces fighting Islamic State jihadists in Syria and neighboring Iraq.

Daniel Davis, a retired army lieutenant colonel and fellow at the Defense Priorities military think tank, cautioned against US military action.

“The absolute worst policy option for the United States is to get deeper involved in Syria’s civil war, which however brutal, has no bearing on our security or prosperity — especially when further intervention risks a clash with nuclear-armed Russia,” he said.

Four Justices Question The Constitutionality of Arizona’s Death Penalty Scheme

Today the United States Supreme Court denied certiorari review in Hidalgo v. Arizona, No. 17-251. Hidalgo asked the court to consider two important Eighth Amendment questions: (1) Whether Arizona’s capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment; and (2) whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.

The case was distributed for conference ten times before certiorari was denied. Justice Breyer, joined by Justices Ginsburg, Sotomayor and Kagan, issued a strong statement respecting the denial of certiorari as to the firstquestion presented—whether Arizona’s statutory sentencing scheme satisfies the Eighth Amendment’s “narrowing requirement” for determining who is “eligible” for the death penalty. The justices did not comment about the second and broader question about whether the death penalty in all cases violates the Eighth Amendment.

It is well-settled, “[t]o pass constitutional muster, a capital sentencing scheme must ‘genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.’” Lowenfield v. Phelps, 484 U. S. 231, 244 (1988) (quoting Zant v. Stephens, 462 U. S. 862, 877 (1983)). As Justice Breyer explains in Hidalgo, “[t]o satisfy the ‘narrowing requirement,” a state legislature must adopt ‘statutory factors which determine death eligibility’ and thereby “limit the class of murders to which the death penalty may be applied.” (quotation marks omitted). Hidalgo’s certiorari petition argued that Arizona’s scheme “utterly fails to do that” because “[t]he number of statutory aggravators has proliferated such that ‘virtually every person—around 99%—convicted of first-degree murder is eligible for the death penalty.” The Arizona trial court denied Hidalgo’s request for an evidentiary hearing to “establish through witnesses, expert testimony, and documentary evidence that [Arizona’s] statutory aggravating circumstances … apply to virtually every first-degree murder case in the State.”

The Arizona Supreme Court affirmed the trial court but did not dispute Hidalgo’s evidence. “Despite assuming that the aggravating circumstances fail to materially narrow the class of death-eligible first-degree murder defendants, the Arizona Supreme Court nevertheless concluded that the State’s death penalty system meets the Constitution’s narrowing requirement. It said that the petitioner was ‘mistaken … insofar as he focuses only on the legislatively defined aggravating circumstances’ because use of those circumstances ‘is not the only way in which Arizona’s sentencing scheme narrows the class of persons eligible for the death penalty.’” The Arizona Supreme Court identified five factors not related to the legislative definition of aggravating circumstances.

Justice Breyer’s opinion examines and rejects all five factors as either previously having been rejected by Supreme Court precedent or not showing “the necessary legislative narrowing that [its] precedent requires.” For example, with respect to the Arizona Supreme Court’s reliance on prosecutorial discretion to perform the narrowing requirement, Justice Breyer says “that reasoning cannot be squared with this Court’s precedent—precedent that insists that States perform the ‘constitutionally necessary’ narrowing function ‘at the stage of legislative definition.” (quotation marks omitted). Although the four justices concluded that the Arizona Supreme Court “misapplied” Supreme Court precedent, and that Hidalgo’s evidence “points to a possible constitutional problem,” they agreed that certiorari should be denied. That’s because the record in Hidalgo’s case (through no fault of his own) came to the Court “largely unexamined by experts and the courts below in the first instance.” In Breyer’s view, “the issue presented in [Hildago’s] petition will be better suited for certiorari with such a record.”

Sentencing Commission Releases 2017 Federal Crime Statistics

Last week the United States Sentencing Commission released its 2017 Annual Report and 2017 Sourcebook of Federal Sentencing. FY2017 encompasses the federal government’s fiscal year October 1, 2016 to September 30, 2017 and includes data on sentencings occurring during this period and reported to the Commission before February 14, 2018. Together the Report and Sourcebook represent the annual report required by 28 U.S.C. § 997, as well as analysis, recommendations, and accounting referenced in 28 U.S.C. § 994(w)(3).

The 2017 Annual Report provides information on the Commission’s activities, such as conducting research, collecting and reporting sentencing data, sentencing policy development (i.e., guideline amendments), and training and outreach.

The 273-page 2017 Sourcebook contains sentencing statistics on a wide range of variables—such as length of sentences and adjustments for various primary offenses—in each federal judicial circuit and district, reflected in tables, figures, and pie charts. The information in the Sourcebook is also available in the Commission’s online resource Interactive Sourcebook of Federal Sentencing Statistics. The data in the interactive sourcebook can be tailored to any district or group of districts. Here are some highlights from the Sourcebook data:

In FY 2017, the courts reported 66,873 felony and Class A misdemeanor cases to the Commission. This represents a decrease of 869 cases from the prior fiscal year.

The race of federal offenders remained largely unchanged from prior years. In FY 2017, 53.2 percent of all offenders were Hispanic, 21.5 percent were White, 21.1 percent were Black, and 4.2 percent were of another race. Non-U.S. citizens accounted for 40.7 percent of all offenders.

Drug cases accounted for the largest single group of offenses in FY 2017, comprising 30.8 percent of all reported cases. Cases involving immigration, firearms, and fraud were the next most common types of offenses after drug cases. Together these four types of offenses accounted for 82.4 percent of all cases reported to the Commission in FY 2017.

Among drug cases, offenses involving methamphetamine were most common, accounting for 34.6 percent of all drug cases.

Drug sentences remained relatively stable across all drug types in fiscal year 2017. The average length of imprisonment increased slightly from FY 2016 in cases involving methamphetamines, from 90 months to 91 months, and also in marijuana cases, from 28 months to 29 months. In fiscal year 2017, 44.2 percent of drug offenders were convicted of an offense carrying a mandatory minimum penalty.

1st Circuit Court Urges SCOTUS To Revisit Outdated Precedent

In United States v. Rivera-Ruperto (link is external), No. 12-2364, 2018 WL 1060694 (1st Cit. Feb. 27, 2018), the en banc First Circuit unanimously “urge[d] the Supreme Court to consider whether the Eighth Amendment permits . . . the mandatory stacking of sentences under § 924(c) that—due to their cumulative length—necessarily results in the imposition of a mandatory sentence of life without parole.” Id. at 22.

The decision comes from a concurring opinion by Circuit Judge Barron, joined by all First Circuit Judges, to an order denying a petition for rehearing and rehearing en banc. Defendant Rivera-Ruperto was convicted in the United States District Court for the District of Puerto Rico, of conspiracy and attempted possession with intent to distribute controlled substance, possession of firearm in relation to drug trafficking crime, and possession of firearm with obliterated serial number. His convictions stemmed from a federal sting operation that targeted Puerto Rican police officers. “As part of that sting, Rivera participated, while armed, in a number of supposed ‘deals’ involving large amounts of fake cocaine in which agents of the Federal Bureau of Investigation (FBI) posed as both buyers and sellers.”

Rivera-Ruperto was sentenced to a 161-year and ten-month prison term, 130 years of which were for six convictions under 18 U.S.C. 924(c). Section 924(c) mandated that the defendant get 130-years imprisonment for his six 924(c) violations—five years for the first conviction, plus twenty-five years for each of the subsequent convictions—even though all but one of his convictions were imposed at the same trial and the defendant had no prior criminal history.

On appeal, Rivera-Ruperto argued that his sentence was grossly disproportionate as to be unconstitutional under the Eighth Amendment in as much as his 924(c) convictions required a life sentence. Indeed, as Judge Brannon’s concurrence observes, Rivera-Ruperto received a de facto life “even though this case is replete with factors that—under a discretionary sentencing regime—would surely have been relevant to a judge’s individualized rather than arithmetical assessment of whether what Rivera did should not only be punished severely but also deprive him (absent a pardon or commutation) of any hope of ever enjoying freedom again.” Id. at 2.

Judge Barron’s en banc concurrence examines Eighth Amendment proportionality jurisprudence exhaustively. Applying the Supreme Court’s three-criteria framework for evaluating whether the length of a prison term is impermissibly disproportionate to the seriousness of the offense, see Solem v. Helm , 463 U.S. 277, 292 (1983) (holding sentence of life imprisonment for uttering no acount check for $100 violated the Eighth Amendment), Judge Barron explained, “based on a consideration of those criteria, . . . I would find that Rivera’s mandatory, more-than-century-long sentence was grossly disproportionate and thus in violation of the Eighth Amendment.”

But the opinion recognizes that “Solem . . . is not the last word” from the Supreme Court. Rather, Judge Barron concluded: “I am compelled by precedent—and, in particular, by the nearly three-decades old, three-Justice concurrence in Harmelin v. Michigan, 501 U.S. 957, 1006 (1991) (opinion of Kennedy, J.)—to uphold Rivera’s greater-than-life sentence.” Hamerlin held the imposition of a mandatory life in prison sentence without possibility of parole, without any consideration of mitigating factors, such as the fact that the petitioner had no prior criminal history, was not cruel and unusual punishment under the Eighth Amendment. Hamerlin did not produce a majority opinion and the Supreme Court has recognized that Justice Kennedy’s three-judge concurrence in Hamerlin is controlling. See Graham v. Florida, 650 U.S. 48, 60 (2011).

Following the explanation for why Hamerlin compelled affirmance of Rivera-Ruperto’s sentence, the concurrence addressed several reasons why the Supreme Court should “revisit the logic of the Hamerlin concurrence,” at least as it relates to 924(c) stacking. The First Circuit decision ends with these concluding paragraphs:

Rivera faces the longest and most unforgiving possible prison sentence for conduct that, though serious, is not of the most serious kind. He does so not because the legislature had authorized its imposition and a judge had then considered all of the aggravating and mitigating circumstances and determined that this sentence was appropriate. He does so only because Congress has been deemed to have made a blanket judgment that even an offender like Rivera—who has no prior criminal record and whose series of related crimes resulted in no harm to an identifiable victim—should have no hope of ever living free. And he does so even though virtually every comparable jurisdiction punishes comparable criminal conduct less harshly, and even though the federal government itself punishes nearly the same or seemingly worse conduct more leniently.

Almost three decades have now passed since the concurring Justices in Harmelin concluded, without reference to real-world comparative benchmarks, that the Eighth Amendment afforded the Michigan legislature the scope to try out what at the time was viewed as a permissible sentencing experiment to address a newly concerning crime problem. In those intervening decades, virtually no jurisdiction has been willing to replicate that state’s experiment. In fact, even the state that the Harmelin concurrence permitted to try it has abandoned it. And yet the Harmelin concurrence still controls.

In my view, a consequence as grave as the one that Harmelin requires in a case like this should have the imprimatur of more than only a nearly three-decade old, three-Justice concurrence. I thus urge the Supreme Court to consider whether the Eighth Amendment permits, at least in a case such as this, the mandatory stacking of sentences under § 924(c) that—due to their cumulative length—necessarily results in the imposition of a mandatory sentence of life without parole.