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June 3, 2013

As expected, feds ask full Sixth Circuit to review and reverse Blewett crack retroactivity ruling

As covered via a number posts on this blog, a split Sixth Circuit panel decided in Blewett, based on Equal Protection principles, that the new lower statutory mandatory-minimum thresholds for crack offenses established in the Fair Sentencing Act are applicable in motions to reduce otherwise-final sentences for incarcerated offenders.  (The Blewett panel ruling was first discussed in this post, and further here and here.) 

As predicted in these posts, the federal government is not happy with this ruling, and late Friday it finally filed a petition for rehearing en banc.  Here is the opening paragraph of the argument section from that filing, which can be downloaded below:

The majority’s holding is legally incorrect, in conflict with prior Sixth Circuit decisions, in conflict with the law of every other circuit, and inconsistent with Dorsey.  Moreover, the effect of the decision will be widespread if it is allowed to stand.  The panel majority’s core reasoning is seriously flawed in multiple respects, but two central errors highlight the need for en banc consideration.  Download Blewett_petition for rehearing

I would be truly shocked if the full Sixth Circuit did not grant this petition for rehearing.  Indeed, in my view the only real procedural questions now are (1) how long will it take the full Sixth Circuit to grant the petition, and (2) what kind of briefing and argument schedule will be set for this important case.  (I would urge the Sixth Circuit to give plenty of time for briefing because I know that a number of public policy groups are likely to be eager to file amicus briefs in this matter.)

As I briefly explained in my first post on Blewett, I think a Fifth Amendment equal protection theory used by the majority in the Blewett panel decision provides a very shaky constitutional foundation for giving the new crack statutory sentences of the FSA retroactive effect.  But I also think, in the wake of the passage of the Fair Sentencing Act and the USSC's implementation of its new 18-1 crack guidelines retroactively, that a proper application of the Eighth Amendment could provide a more reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA.

Related posts on Blewett:

June 3, 2013 at 08:46 AM | Permalink

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"But I also think, in the wake of the passage of the Fair Sentencing Act and the USSC's implementation of its new 18-1 crack guidelines retroactively, that a proper application of the Eighth Amendment could provide a more reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA."

I'm not aware of a single circuit that held the old crack sentences were a violation of the Eighth Amendment. Nor can the FSA affect those holdings, since, as Dickerson teaches, Congressional legislation cannot affect Constitutionally-based rules.

That means that we're back to Equal Protection -- but that also won't work, for the reasons you state.

Posted by: Bill Otis | Jun 4, 2013 10:22:23 AM

Bill, I fear that your semi-retirement has made your constitutional analysis talents less sharp. Dickerson was a Fifth Amendment case, and it may stand for the proposition that Congress cannot change interpretations of that Amendment. But, as you surely know, legislative enactments have been the mainstay of the "objective factors" portion of Eighth Amendment analysis, and thus work by Congress and the state legislators provides a critical/central elements of existing Eighth Amendment jurisprudence and its quest to assess the "evolving national consensus" concerning what is cruel and unusual.

This reality goes to the heart of the Eighth Amendment claims that seems viable here. No state legislature now embraces a 100-1 crack/powder sentencing ratio, and after the FSA neither does the federal government. In addition, at the federal level, elected representatives (in Congress and in the executive branch) have repeated spoken out against the old 100-1 ratio and unfair AND so too has an expert agency in the judicial branch (the US Sentencing Commission). That provides still more support for the notion that extreme punishments for crack offenses are NOW subject to invalidation pursuant to the C&U clause.

Notably, in cases like Atkins and Roper, SCOTUS has found previously constitutional sentences to be unconstitutional based, in part, on only a few new state legislatures moving away from a particular extreme penalty. Here, not only is there not a single legislature that seeks to impose extreme crack sentences based on the 100-1 ratio, but it is hard to find anyone willing/able to provide an on-the-merits substantive justification for such extreme sentences for non-violent offenders. Of course, finality interests are still in play, but such interests have never been the basis for resisting an 8th Amendment ruling on the merits --- they just serve as one factor to consider as to whether and how such a ruling on the merits should be applied to long-final cases.

Along these lines, I would be interested in hearing what substantive arguments you think exist in favor of old extreme crack sentences other than the procedural interest in finality. Please know, I think sentencing finality is a valid interest, but it is clearly one that needs to be balanced with other interests. And now I just am trying to understand what interests OTHER than finality can be used to support the old pre-FSA crack sentences.

Posted by: Doug B. | Jun 6, 2013 9:14:40 AM

"I would be interested in hearing what substantive arguments you think exist in favor of old extreme crack sentences other than the procedural interest in finality."

Precedent.

As I noted, and you whistle past, the Eighth Amendment claim against the old crack sentencing was presented to every circuit and rejected by every circuit. It has not won in any court of appeals before OR AFTER the FSA.

My constitutional analysis talents may be less sharp, but my memory of what wins cases is still pretty good. Precedent does. Novel arguments from academia don't.

However, if you think your Eighth Amendments arguments will prevail in the Sixth Circuit or any other, let's make a bet. If they do, I'll contribute $100 to your favorite charity. If they don't, you only have to contribute $10 to mine.

Now that's a great deal, Doug. Are we on?

Posted by: Bill Otis | Jun 6, 2013 8:33:48 PM

Given that precedent was also on the side of prosecutors in Miller and Graham and Roper and Atkins before novel Eighth Amendment arguments from academia prevailed, I will happily take your kind bet, Bill. (I am relying on your status as a former federal prosecutor to make the assumption that we are not violating any federal criminal laws by making a bet of this nature.)

My only requested tweak is that we not consider the bet resolved unless and until SCOTUS has a fair chance to weigh in on my Eighth Amendment claims as well. Even with that caveat, I still have an uphill battle, but I do think my odds of success are (only slightly?) better than 10%.

Thanks for the engagement, as always.

Posted by: Doug B. | Jun 7, 2013 6:09:06 AM

no not really you will get help start posting what you have about this on obama twitter wall the people who think he is so cool will see it and i pray that though this we can stop all obama s crimes and what he is doing to the black pop is so evil he needs to be gone the only hope we have is the truth they cant sit and see this with out wondering is it true they must wake up

Posted by: charlene | Aug 6, 2013 9:11:05 PM

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