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Court holds federal high seas piracy statute unconstitutional

The United States has the harshest piracy law in the Western world – among the harshest anywhere. The maximum and minimum penalty is life in prison. In a surprising and dramatic development in the case of U.S. v. Said, a federal judge has held the statute unconstitutional under the Eighth Amendment, which has been on the books since the first federal criminal laws in 1790s (the penalty was death back then). In particular, he found it overly disproportionate as applied to a group of pirates who attacked a U.S. Navy vessel, but did not hurt anyone.

I will provide more detailed commentary later, but my initial reaction is skeptical. The opinion seems to think the the typical pirate is a violent murderer, which is far from the case, and neglects the enforcement difficulties that have made the punishment for piracy always higher than for comparable land-based offenses.

I should add that the judge, Richard Jackson, had previously thrown out the charged because he held attempted piracy did not fall within the statutory definition, and also on quasi-constitutional concerns about due process and common law crimes. (That decision I also heavily criticized, and it was ultimately reversed by the Fourth Circuit.) Now the attempt factor comes back at sentencing. I anticipate another reversal.

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.

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