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April 19, 2012

Why I think defendants should win "fight about competing background rules" in Hill and Dorsey

Despite lots of travels and other commitments, I have had time now to review and reflect on the SCOTUS oral arguments earlier this week in the Fair Sentencing Act pipeline cases Hill and Dorsey (basics here, transcript here).  Though many parts of the argument merit discussion, here I will focus upon Miguel Estrada's crisp and spot-on statement that these cases ultimately are a "fight about competing background rules."  Specifically, I will explain why I think, as a matter of both doctrine and policy, FSA defendants ought to win the fight in this particular setting where all the FSA does is lower the trigger quantities of crack for applicable mandatory minimum prison terms.

Here I must start by channeling my inner Blackstone to note that the common-law abatement doctrine meant that even if and when a criminal statute was amended to increase penalties, the "background rule" was that defendants could not even be prosecutedfor criminal behaviors that took place prior to this statutory change.  So, for anyone drawn to common-law rules, and especially for those who believe in the statutory interpretation canon that statutes in derogation of the common law should be narrowly construed, the defendants have the common-law background in their favor.

Of course, Congress in 1871 passed the "Savings Statute" which reverses this common-law background rule with a new background rule providing that the "repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability."  This statute sets out what might be called the Savings background rule and it is the rule that Estrada as the SCOTUS-appointed amicus argues should mean the defendants lose in Hill and Dorsey.

Notably, this Savings background rule has some indisputable import in these cases: absent this background rule, the common-law abatement doctrine would mean the defendants in Hill and Dorsey could not even be prosecuted for their crack offenses!  But nobody has argued that these defendants should now get this common-law windfall and be free of "any penalty, forfeiture, or liability" for their pre-FSA conduct.  Rather the dispute in these cases is whether they should be subject at a post-FSA sentencing to the pre-FSA mandatory minimum triggering levels for certain long prison terms for minor crack offenses.  And, as SCOTUS interpretation of the Savings background rule states, we are to look to the express text and the necessary implications of the new statute to figure out what laws apply to crack defendants being sentenced now.

Here is where the defendants can and have stressed another background rule, namely the Sentencing Reform Act's key provision, 18 U.S.C. § 3553(a)(4)(ii), which calls for sentencing courts to apply the guidelines sentencing law "in effect on the date the defendant is sentenced."  This statutory provision is, functionally, an express reversal by Congress of the Savings background rule for sentencing purposes under modern guideline reforms. 

Congress in the FSA failed to include a specific provision referencing either the Savings background rule or the SRA law-in-effect-at-date-of-sentencing background rule.  But the SRA background rule would seem to be closer in both time and relevance to the FSA's new sentencing provisions AND all major crack offenders are necessarily getting the benefit of the SRA background rule (i.e., they are getting sentenced based on the reduced 18:1 crack sentencing provisions) because the guidelines and not the old (or new) mandatory minimums frame/define the sentences they realistically face.  It seems very weird to think Congress wanted the Savings background rule to sting lesser crack offenders, while the SRA background rule would benefit only more serious offenders.

In addition, the SRA has another important background rule, namely that sentencing judges are always required in every case to impose sentences "sufficient, but not greater than necessary" to achieve the purposes of punishment in the SRA.  This additional "background rule" ensures defendants should not get any  "sentencing windfall" from application of the new provisions of the FSA, but rather these provisions will merely allow judges to no longer be compelled (by now repealed mandatory minimums) to impose sentences for low-level crack offenders that they think are "greater than necesary" (a view Congress and the President has embraced as evidenced by the FSA's passage).

Further still, I think statutory construction canons like the rule of lenity and constitutional doubt provide still further "background rules" for an interpretation of the FSA to favor the defendants here.  Indeed, the very fact that SCOTUS had to appoint an amicus to make an argument for the Savings background rule and nobody else (including no member of Congress) has urged that background rule to prevail further contributes to my (admittedly biased) view that the defendants should win this "fight about competing background rules" in Hill and Dorsey.

A few recent posts on these SCOTUS cases:

April 19, 2012 at 12:22 PM | Permalink


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Thanks for taking the time to write this post, and you've made an excellent point concerning how common-law background rules would actually apply to this case.

Justice Scalia's statement that he "would find that extraordinary, that [members of Congress] say it’s racist but we are going to leave in effect all of the sentences that have previously been imposed,” is nonsensical. Congress can find that a law is clearly racist but be unable to quickly enact another law immediately releasing thousands of imprisoned individuals into the public, due to both resource considerations (presumably all would require a hearing before a judge before they could be released), and various other policy considerations (maybe those in prison benefitted from a plea agreement, etc.). But when Congress passed a law to remedy the racism and gave it the title "Fair SENTENCING Act," it obviously had to desire fixing all SENTENCINGS going forward. Fixing sentencings was in its power, and represented one practical step towards achieving fairness.

Posted by: Deek | Apr 19, 2012 12:38:28 PM

You lawyers have sure made a mess of things.

Posted by: Tom McGee | Apr 19, 2012 12:56:25 PM

All due respect Prof, but I think your bias is coloring your thinking. As a federal practitioner (ahem, NOT in private practice) I will bet you a Ben's Chili Bowl Chili Dog against (what, an Ohio Buckeye?) that the Court finds that sans EXPRESS direction from Congress in THIS particular Act, your clients' position does not prevail.

Posted by: anon | Apr 19, 2012 7:39:04 PM

I do not bet on court cases, anon, but I agree with your suggestion I am biased by my hope that fair sentencing rules do not come with a built-in delay.

Posted by: Doug B. | Apr 19, 2012 7:54:02 PM

Oh, do come down off your high horse, Prof. I happen to agree with you, as a matter of fairness and, hell, even as a matter of politics, that the FSA should apply retroactively. I'm simply stating that as a matter of law, I just don't see it happening.

Posted by: anon | Apr 19, 2012 11:07:02 PM

Doug --

"I do not bet on court cases, anon, but I agree with your suggestion I am biased by my hope that fair sentencing rules do not come with a built-in delay."

I gather then that you think the Saving Statute should be repealed, since virtually every statutory sentence reduction is based at some level on the view that the prior sentencing rules were "unfair."

Do you in fact think it should be repealed? And if so, do you think it should be repealed by judicial fiat in this case, or by Congress (if Congress be so advised, which there's no evidence it is)?

Posted by: Bill Otis | Apr 20, 2012 9:11:13 AM

Bill Otis:

If the issue were as simple as you try to state it, it wouldn't have created the circuit split and a 5-5 split within the 7th circuit deciding whether to rehear it en banc, or been heard by SCOTUS. The question is not whether the savings clause "should be repealed." It's whether the statute itself has enough textual evidence of Congress's intent to have the FSA apply immediately. The savings clause is only a background rule when Congress HAS NOT declared such intent. I guess the question is really how much textual evidence is required to show Congressional intent...when does it cross from "implied intent" to "clear intent." That was the focus of oral argument.

So, Bill, NO ONE is saying that the savings clause should be repealed. Your view is overly simplistic and doesn't comprehend the issues here.

Posted by: Anon 2 | Apr 20, 2012 10:47:48 AM

I represent a defendant who, I hope, will receive the benefit of a ruling in favor or Dorsey & Hill.

That being said, there's a difference between the Savings Statute and other "background" rules of statutory construction like the rule of lenity, statutes in derogation of the common law, etc.

It's really a question of separation of powers. When courts create a "rule" of statutory construction, they're putting the legislature on notice of how they intend to interpret statutes. When the legislature creates a statute, like the Savings Statute, however, regarding how the PUBLIC should understand what is unlawful and the penalties for unlawful conduct, they have the power to say how their statutes will be interpreted. The courts must accept those rules over and above their own common-law (i.e., judge-made) preferences, or they are making their rule-applying power superior to the rule-creating power of the legislature.

Maybe Congress intended the FSA to apply retroactively to conduct occurring prior to its passage. The only way to tell is for Congress to have said so. They did not. In the absence of an expression of intent in the statute, common-law canons of statutory interpretation are a pretty week basis for courts to say what Congress' intent was. (Here, people can look to the statements of some members of Congress about their personal intent, but the problem with such statements is that they never received the backing of the majority of Congress. Only the statute itself, which is silent on retroactivity, was agreed to by a majority of Congress.)

I still hope that Dorsey & Hill win, but their cases do pose separation of powers problems that are quite serious.

Posted by: Mark Pickrell | Apr 23, 2012 9:19:47 PM

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