I'd have liked to hear more from Judge Noonan. But as it is, his opinion leaves me unsatisfied.
Judge Wallace writes the majority opinion. He explains that "[b]etween December 24, 2005, and July 24, 2006, retail establishments in Fresno and Madera, California, were plagued by a string of armed robberies." Two individuals, Marcus Major and Jordan Huff, were convicted of committing a number of these crimes.
So what's the appropriate sentence? Let's see. Several robberies. Guns. Certainly not people we want on the street any time in the next several years. Remember that we're in federal court, so it's (substantially) the guidelines. What do you think they get?
Here's a hint: Luffs the lucky one. He gets a year and two months less than Major.
Maybe I should have put "lucky" in quotes. Luff gets 8,941 months. Which is 745+ years for regular folks. Major gets over 746.
The Ninth Circuit affirms their convictions. The biggest questions are about their sentences. Judge Wallace rejects their Eighth Amendment claim. "We upheld a 95-year sentence" in a prior case, Judge Wallace says. What's another 650 years? At least amongst friends. Same result.
The majority does conclude that some minor tinkering would perhaps be required to the sentence, for technical reasons that seem right. So it remands. To have the district court decide whether the correct sentence shouldn't be 600 or 700 years or so rather than 745. 'Cause that's going to matter. A lot.
Judge Noonan writes an extremely brief concurrence/dissent. Which says, in its entirety:
"I concur in the opinion of the court except as to the sentences of over 700 years. The court says, 'No one could dispute that a sentence of almost 750 years is harsh.' No one would bother to characterize such a sentence as 'harsh.' It is simply incapable of execution. No known human being has the capacity to live 700 years. No living human being is likely to live 700 years. On its face, the sentence is impossible to execute. The United States asks us to affirm this sentence. It asks us to affirm a sentence that cannot be carried out. I do not believe that we should participate in this utterly empty gesture."
I'm just not sure what to make of this.
On the one hand, I share the sentiment. What's the point? 200 years, 500 years, 700 years. There's no difference. Not in a universe (like our federal system) without parole, and probably outside of it. Why go through the effort?
Plus, this emotional reaction might have practical -- and political -- significance as well. I can't help but wonder, for example, what effect sentences like these might ultimately have. Imagine that you're a hard core 'banger like Mssrs. Huff & Major, and realize that your retail crime spree will likely net you several hundred years in prison: effectively a death sentence. Why not kill people? Why not take shots at the police once (as here) they confront you? Why not cap any potential witnesses after you've cleaned the cash register? We're talking about the guidelines and mandatory minimums, after all. Do you really think that sentencing regimes like this stay secret forever? Or don't affect anyone at all once they're known?
Sure, the possibility of a death penalty might deter you. In theory. Though in reality that just means 20 years of appeals and habeas petitions. And you die in prison either way.
But I'm not sure that's really Judge Noonan's point. Does he really think these sentences constitute cruel and unusual punishment? Or are otherwise illegal? If so, I'd like to hear why. Because Judge Wallace has made an argument from (and analogy to) precedent, so if he's wrong, that'll require an argument. But I don't see one.
Maybe, instead, Judge Noonan is simply frustrated by the government's decision to defend the appeal. But what's the alternative? Confess error? Even when there isn't any? Or maybe Judge Noonan thinks it's silly, as he said, to engage in a "pointless task" of resolving an appeal over a 600- versus 700-year sentence. But is it a judge's role to decide what tactical decisions are silly? It's possible that Judge Noonan is hinting that the appeal is really moot in light of practical realities. And I agree, at least as a practical matter. But not as one under existing legal doctrine. It's possible, after all, that all of the sentences but one will be reversed by the Supreme Court, or pardoned, or whatever, and so we have to decide now on the proper result. Sure, we all know that none of that will actually happen, but it might, so the case isn't moot, so we have to decide it.
Or am I wrong? Judge Noonan doesn't say.
Or maybe Judge Noonan means something else entirely. In 1994, less than two months before announcing his retirement, Justice Blackmun wrote a dissent in which he declared: "From this day forward, I no longer shall tinker with the machinery of death." Is something like that what Judge Noonan's saying? Only with respect to super-long sentences rather than the death penalty? Is this the start of something more general? Does a judge on the Court of Appeals (rather than a justice on the Supreme Court) have the freedom to so depart from precedent?
Judge Noonan again doesn't say. We're instead left largely to speculate as to both his message as well as its validity.
Whatever his message, it's intriguing. There may well be lots to say there. I just wish I could hear it.