Why holding the piracy statute’s life sentence unconstitutional was a mistake

March 5

Congress has prescribed a mandatory life sentence or worse for piracy since 1790. At first the penalty was a mandatory minimum of death: in the late 1800s Congress set it to life at hard labor, and then in 1909 to life. Last week, a U.S. District Court judge found it unconstitutional as applied to some Somali pirates, in United States v. Said. As I mentioned earlier, I think the result is wrong, and will outline some problems with the opinion, in no particular order.

Judge Jackson thinks that under the Eighth Amendment, a mandatory life sentence is “grossly disproportionate” as applied to the current defendants, because while they did attack a U.S. Navy destroyer (in the mistaken belief it was a merchant ship) with rifles and RPGs, they were wildly unsuccessful, and did not manage to hurt anyone. Judge Jackson argues that attempts are typically treated differently from completed offenses in federal law. But in all the examples he sites, the statutes defining the primary conduct explicitly treat attempt as a lesser offense. The federal piracy statute, however, incorporates by reference the international law definition of piracy, which folds attempts into completed offenses.

Judge Jackson says the defendants’ conduct is less culpable than those of other pirates sentenced to lesser terms – but all those cases involved plea bargains, and there a perhaps a dozen relevant cases at all. A lower sentence for a plea bargain implies the permissibility of a higher one for defendants who put the government to the burden of trial.

As an original matter, the Eight Amendment holding is even weaker. The First Congress imposed the death penalty for piracy, and it was applied without any constitutional question. Yet the Framers knew that the conduct that constitutes piracy was, objectively, more similar to robbery than murder or other more culpable crimes.

For example, Thomas Jefferson, in his proposed reform of Virginia’s penal laws, suggested eliminating the death penalty for piracy, and instead making the penalty similar to the one for aggravated robbery. His approach found little purchase because punishment is not just about culpability, but about enforcement difficulties, or to put it differently, about the vulnerability of the victim. The high seas are a place outside the normal operation of law enforcement, yet where most of the world’s commerce transits. This requires tougher penalties.

Indeed, the entire crew of a pirate vessel was equally guilty of the crime, and liable to the death penalty, down to the ship’s cook – people who, unlike the defendants here, had no participation in any boarding efforts whatsoever. Indeed, many pirates were sympathetic figures, forced into crime by their shipmates. Yet no one ever questioned the constitutionality of applying the statue to them. Certainly it was recognized that punishing low-level pirates by death was very harsh – but the harshness was part of the point, to deter a hard-to-police crime. Instead, presidential pardons were relied on to mitigate any harsh effects.

The Constitution explicitly authorizes Congress to punish “piracies on the high seas” – along with treason, it is one of the only two crimes mentioned by Founding document. The power to define and punish reflects the uncertainty of determining, from abstract principles, the proper punishment for international crimes. This suggests judicial interference in Congress’s penal scheme is particularly counter-indicated for such offenses.

The Court noted, correctly, that the U.S. is a far outlier in its punishment for piracy among other countries that have prosecuted the crime in recent years. But as I point out in my empirical study of piracy sentencing, it is not clear how much that means, because most of those countries have less punitive legal systems overall. Their punishments for most crimes are lower than in the U.S. Piracy prosecution has been heavily dominated by Western European countries and two regional states that they have hired to help them; the piracy sentences are generally consistent with these jurisdictions’ overall punitive approach.

Eugene Kontorovich is a professor at Northwestern University School of Law, and an expert on constitutional and international law. He also writes and lectures frequently about the Arab-Israel conflict. His academic work has been published in top law reviews, and relied on in historic judicial opinions in the U.S. and abroad. He has also advised the U.S. and Israel governments on international legal challenges. He has been honored with a fellowship at the Institute for Advanced Studies and the Bator Award from the Federalist Society, for leading professors under 40. After law school at the University of Chicago, he clerked for Judge Richard Posner on the U.S. Court of Appeals.
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