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December 1, 2010

A few more thoughts on applying the FSA to not-yet-sentenced defendants

As regular readers know, I am troubled by the Justice Department's view that any defendant who committed a crack offense before the enactment of the Fair Sentencing Act should get no benefit from the the FSA's statutory provisions.  Because I think the argument for applying the FSA to defendants awaiting initial sentencing is especially strong, I have previously here posted an amicus letterthat I submitted in a New York case with my thoughts about why the FSA's provisions should be applied to cases in the pipeline that have not yet been sentenced.

Earlier this week, I submitted another letter in this case that is particularly focused on the Government's claim that, with regards to the FSA's applicability, there is no basis for distinguishing between already sentenced defendants and not yet sentenced defendants.  That full letter is available for download below, and here are two key paragraphs of my argument:

Critically, the Government seeks to obscure the important and sensible distinction between applying the FSA retrospectively to defendants who had been already sentencedas of its enactment date, and applying the FSA prospectively to defendants not yet sentenced as of its enactment date.  It is reasonable and sensible to suggest that Congress concluded that offenders who were sentenced before the FSA became law should not be able to demand a return to court for a complete “redo” — with all the added expense and uncertainty of the resentencing process — based on the FSA’s new sentencing provisions and its ordered revision of the federal sentencing guidelines.  But it is neither reasonable nor sensible to suggest that Congress concluded that only minor crack offenders who have not yet been sentenced should be subject to harsher (now-amended) sentencing laws while all major crack offenders who have not yet been sentenced should get the benefits of the amended sentencing provisions of the FSA.

Stated slightly differently, it is reasonable to assume and conclude that concerns about finality and judicial economy may have kept Congress from wanting to enable already sentenceddefendants from reopening and relitigating the sentences they received before the FSA became law.  But it is not sensible to assume or conclude that concerns about finality and judicial economy may have kept Congress from wanting to enable not-yet-sentenceddefendants from being initially sentenced pursuant to the FSA’s new sentencing structure.  In fact, judicial economy is better served by making the terms of the FSA’s sentencing structure applicable to all not-yet-sentenced defendants: a simple, straight-forward rule applying the FSA to pending cases would prevent sentencing judges in many cases from having now to figure out (1) whether a defendant’s offense conduct took place before or after the FSA enactment, and/or (2) whether and how a defendant’s sentence should be governed by the new crack sentencing guidelines or the old crack sentencing statute.  Indeed, though it is easy to understand how Congress’s interest in sentencing fairness, consistency and judicial economy supports application of the FSA to all not-yet-sentenced defendants, it is hard to understand or even to identify any valid congressional interest that would be served by continuing to apply the older (and now amended) crack sentencing provisions to only not-yet-sentenced minor crack offenders.

Download FSA pipeline applicability follow-up letter

Some recent related posts:

December 1, 2010 at 06:36 PM | Permalink

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Comments

Prof. Berman,

Can lawyers use this reply amicus letter in their own cases without getting any advance consent from you (as you previously said they could do with your original amicus letter)?

Posted by: Alex E. | Dec 1, 2010 10:59:59 PM

Absolutely!

Posted by: Doug B. | Dec 2, 2010 9:03:28 AM

I'm confused, Professor Berman, about your position on cases in the pipeline, that is, cases where the defendant was sentenced prior to August 3rd but his appeal was still pending on that date.

In your first letter, you wrote that "there are strong constitutional arguments and strong policy considerations supporting the application of the FSA to all criminal cases not yet final." In this most recent letter, though, you are claiming an "important and sensible distinction between applying the FSA retrospectively to defendants who had been already sentenced as of its enactment date, and applying the FSA prospectively to defendants not yet sentenced as of its enactment date."

Take a hypothetical defendant sentenced on June 1, 2010 to a mandatory minimum of five years for possessing 10 grams of crack cocaine and whose appeal is still pending. Under the FSA, there would be no mandatory minimum. Assuming the issue is properly preserved for appeal, do you think that defendant is entitled to a resentencing under the FSA or is he out of luck?

Thanks.

Posted by: anonymous | Dec 2, 2010 10:16:21 AM

I agree that applying to not-yet-sentenced defendants is a slam dunk. But I don't think there is anything reasonable or sensible to *not* applying to sentenced, but not-yet-final (i.e., still on direct appeal) cases. We are talking about decades of time, and if the disparities are injust, the relatively minor effort for resentencing (after all, most of the arguments/PSI reports, etc. will remain the same, with the exception of the guidelines analysis) are worth the time.

The real question is full retroactivity. I understand Congress did not want to go there, but it is still a shame that folks will be doing time for decades under sentences that Congress has now acknowledged are not fair.

Posted by: Anon | Dec 2, 2010 12:39:11 PM

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