Pirates and the Rule of Law: Mandatory Life Sentences
The United States Court of Appeals for the Fourth Circuit issued a piracy-related opinion on August 13, 2015. The decision in United States v. Mohamed Ali Said, et al., (Record Nos. 14-4420, 4421, 4423, 4424, and 4429), and designated for publication, approved the single-sanction for piracy under 18 U.S.C. § 1651, specifically, a mandatory life sentence.
In April 2010, the several defendants, all Somalis, boarded a small skiff and entered the Gulf of Aden, for the intended purpose of “seizing a [merchant] ship” so as to “make money.” The group took with them a hooked boarding ladder, and a cache of weapons and ammunition, including AK-47 rifles, and an “RPG,” which acronym denotes a rocket-propelled grenade launcher. They traveled some forty nautical miles from Somalia’s coast, in international waters, and in the pre-dawn hours of April 10th, mistook the USS Ashland, a dock landing ship of the U.S. Navy, for a merchant, or, “cargo” ship.
Some of the same defendants, and others, in February 2010, had attempted much the same thing. On February 27th, in their twin-engine skiff, and while in possession of a hooked boarding ladder and an array of weapons and ammunition, they’d encountered the HMS Chatham, a warship of the British Royal Navy. On that occasion, the Chatham intercepted them in the international waters of the Gulf of Aden. The group unsuccessfully attempted to flee the Chatham. In that flight, the group hurled their ladder and most of the weapons overboard.
As the Chatham’s well-armed boarding party approached them, the group members contrived a cover story to explain the presence of seven men in a small skiff. They professed to be a group of smugglers returning from Yemen, whose second small vessel had been disabled at sea. In response, “[p]ersonnel of the Chatham photographed the Somalis, confiscated the pistol and ammunition, disabled one of the skiff’s motors, spray-painted a red identification number on the skiff, and ordered the Somalis to return home.”
Undeterred, having replaced the boarding ladder, obtained additional weapons, and obliterated the markings applied to their skiff, the defendants set out on their April 2010 venture. Upon sighting and closing to within 25 yards of the Ashland, one of the group, named Cabaase, a/k/a “Engineer”, commenced firing his AK-47 at the ship. Several Ashland crewmembers observed this conduct. The group intended to frighten the crew of this supposed cargo ship, then board and seize it. Things did not turn out that way.
Despite their great surprise at the attack, upon the Captain’s command, an Ashland crewmember fired two rounds at the skiff from a 25-mm machine gun, “loaded with armor-piercing incendiary shells.” Both rounds struck home, killing one group member, severely injuring another, and setting the skiff ablaze. As the surviving group members abandoned the skiff, they threw weapons into the water. “While treading water, [they] agreed to tell the crew of the USS Ashland a story similar to the one that had been concocted for the personnel of the HMS Chatham…and that [the now-deceased member of the group] had fired on the Ashland to alert the crew that they were in need of rescue.” The story failed to convince the United States government.
The defendants were transported by the Ashland to Virginia, and indicted by a grand jury convened in the U.S. District Court for the Eastern District of Virginia (the “District Court”). Superseding indictments followed in a somewhat complex procedural case history. Yet, among numerous other charges, the defendants faced a charge of piracy under §1651:
Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.
18 U.S.C. § 1651.
Initially, the defendants convinced the District Court to dismiss the piracy indictments, on the basis of the historical definition of piracy requiring “robbery at sea.” See United States v. Smith, 18 U.S. (5 Wheat.) 153, 162 (1820). Yet, the United States appealed that ruling. During the pendency of that appeal, the Fourth Circuit decided an unrelated piracy case presenting the same issue, United States v. Dire, 680 F.3d 446 (4th Cir. 2012), cert. denied, 133 S. Ct. 982 (2013). In Dire, the Court rejected the argument that piracy, as defined “by the law of nations,” maintained a static definition “fixed in the early Nineteenth Century.” Id., 680 F.3d at 467. Instead, and for some decades, the law of nations had defined modern-day piracy to include:
(A) (1) any illegal act of violence or detention, or any act of depredation; (2) committed for private ends; (3) on the high seas or a place outside the jurisdiction of any state; (4) by the crew or the passengers of a private ship; (5) and directed against another ship, or against persons or property on board such ship; or
(B) (1) any act of voluntary participation in the operation of a ship; (2) with knowledge of the facts making it a pirate ship; or
(C) (1) any act of inciting or of intentionally facilitating (2) an act described in subparagraph (A) or (B).
Id., at 465.
Based on the Dire decision, the Fourth Circuit vacated the dismissal of the defendants’ piracy indictments, and remanded their cases for trial in the District Court. During this timeframe, one of the defendants, named Ibrahim, turned government witness. He pled guilty to a number of charges and agreed to testify against his fellows. Also, as a consequence of additional information received from Ibrahim, the government obtained superseding indictments against his co-defendants for the originally charged, and a host of additional offenses. In the consolidated trial of Ibrahim’s co-defendants (“the co-defendants”), the jury returned guilty verdicts against each of them on all counts, including for piracy.
The co-defendants thereafter asserted an Eighth Amendment, as-applied challenge to §1651’s mandatory life sentence provision. They contended that the life sentence provision constituted cruel and unusual punishment, under the two-prong test of Graham v. Florida, 560 U.S. 48 (2010):
The district court explained that, under prong one, a court must “compare the gravity of the offense and the severity of the sentence,” and determine “if that comparison yields ‘an inference of gross disproportionality,’ which should be a ‘rare’ result.” See Eighth Amendment Order 6 (quoting Graham, 560 U.S. at 60). Upon ascertaining an inference of gross disproportionality, the court moves to prong two, which requires it to “compare the sentence with sentences received with other offenders in the same jurisdiction and with sentences imposed for the same crime in other jurisdictions.” Id. “If that analysis confirms that the sentence is grossly disproportionate,” the district court explained, “then to impose the sentence would violate the Eighth Amendment.” [Citing 560 U.S. at 60].
Finding both gross disproportionality and a purported confirmation of it by, “comparing the proposed life sentences with sentences imposed on other offenders in the same jurisdiction and with sentences imposed for piracy in other jurisdictions,” the District Court sustained the co-defendants’ Eighth Amendment challenge. It then sentenced each co-defendant to a term of years.
Both the co-defendants and the United States appealed. In its decision, the Fourth Circuit resolved the co-defendants’ appellate issues against them. It then turned to the government’s appeal of the District Court’s findings on the Eighth Amendment challenge.
In reversing the District Court, the Fourth Circuit first acknowledged the applicability of the two-prong test of Graham v. Florida, although it recited that test somewhat differently from the District Court:
Under prong one, a court must determine whether a threshold comparison of “the gravity of the offense and the severity of the sentence” produces “an inference of gross disproportionality.” See Graham, 560 U.S. at 60 (internal quotation marks omitted) (relying on principles set forth in Solem v. Helm, 463 U.S. 277 (1983)). If prong one is satisfied, the court moves to an analysis of prong two. Under that prong, the court must “compare the defendant’s sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions.” Id. If that comparison “validates an initial judgment that the sentence is grossly disproportionate, the sentence is cruel and unusual.” Id.
The Court then went on to examine numerous Eighth Amendment cases in light of the Solem decision, which held that a recidivist’s life sentence for passing a $100 bad check violated the Eighth Amendment’s prohibition of cruel and unusual punishment. The Court first noted that Solem constituted the only case wherein the Supreme Court “identified a non-capital sentence as being grossly disproportionate.” Then, in its examination of other modern Supreme Court and Fourth Circuit precedent, found no support for the co-defendants’ contention that the mandatory life sentence for piracy produced an inference of gross disproportionality in light of the severity of that offense.
Turning then to the crime of piracy itself, the Court articulated its heinous nature, viewed both modernly and historically:
Furthermore, § 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…Above all, “for centuries, pirates have been universally condemned as hostis humani generis — enemies of all mankind — because they attack vessels on the high seas, and thus outside of any nation’s territorial jurisdiction, with devastating effect to global commerce and navigation.” United States v. Dire, 680 F.3d 446, 454 (4th Cir. 2012)…Piracy was of such significance to the Framers that they expressly accorded Congress, in what is known as the Define and Punish Clause, the power “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” U.S. Const. art. I, § 8, cl. 10. In 1790, the First Congress created a series of crimes related to piracy, many of which were punishable by death. The piracy offense proscribed by § 1651 carried a mandatory death sentence from the offense’s inception in 1819 until 1909, when Congress reduced the penalty to mandatory life.
Based on its analysis, the Court held that the co-defendants failed to establish any inference of gross disproportionality under the first prong of the Graham v Florida test. It thus declined to make a comparative analysis of sentences under the test’s second prong. Concluding that the District Court erred in invalidating the co-defendants’ mandatory life sentences, it remanded their cases for resentencing.
The law of piracy represents an interesting aspect of U.S. law. That particular crime greatly concerned the Founding Fathers, and the Constitution addresses its definition with reference to international law, that is, “the law of nations.” The reference to an international benchmark provides a rarity among our Constitution’s provisions. In addition, the Fourth Circuit’s decisions in Dire, and that in the instant case, recognize an evolution in piracy’s definition. The evolved definition encompasses a much broader range of conduct as compared to the Nineteenth Century’s straightforward “robbery at sea.” One thing stands clear; the United States’ abhorrence of piracy has withstood the test of time!