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June 28, 2013

My Sixth Circuit amicus brief effort now filed explaining my Eighth Amendment FSA views in Blewett

As regular readers likely recall, a little over a month ago a split Sixth Circuit panel in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here), used equal protection principles to justify giving the new crack statutory sentencings levels of the Fair Sentencing Act retroactive effect.  In my first post about the Blewett ruling, I noted that I was unsure that a "Fifth Amendment equal protection theory provides a strong constitutional foundation" for Blewett, but I also suggested, "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 and should provided a reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA." 

A couple of weeks ago, as reported in this post, the Sixth Circuit responded to the Government's en banc petition with a letter to the parties express seeking additional briefing "addressing whether the Blewetts’ punishment in this case based on a 100-to-1 ratio of crack to powder cocaine is constitutionally disproportionate in violation of the Eighth Amendment’s Cruel and Unusual Punishments Clause. "  Ever interested in sharing my perspectives in full glossy detail, I have spent the last few days finalizing an amicus brief on behalf of NACDL explaining my Eighth Amendment thinking and that brief was filed with the Sixth Circuit (and with the consent of the parties) this afternoon.

For those following the Blewett case or interested in FSA retroactivity arguments, I recommend reading my 15-page filing in full (and I have provided the full document for downloading below).  Here are a few passages that capture some of the themes to be found in the brief:

Through passage of the Fair Sentencing Act of 2010 (FSA), Congress significantly reduced the sentences mandated and recommended for all crack offenses (1) by raising by over 500% the quantity of crack triggering five- and ten-year minimum sentences, and (2) by ordering the U.S. Sentencing Commission to reduce all crack guideline sentences through emergency amendments to be promulgated “as soon as practicable.”  See Sections 2 & 8 of FSA.  As the Supreme Court has explained, this landmark legislation reflected Congress’ formal response to “the Commission and others in the law enforcement community strongly criticiz[ing] Congress’ decision to set” crack sentences so high relative to powder cocaine sentences and Congress having “specifically found in the Fair Sentencing Act that [each pre-FSA crack] sentence was unfairly long.”  Dorsey v. United States, 132 S. Ct. 2321, 2328, 2333 (2012).  In other words, passage of the FSA is a clear, bold and unmistakable legislative statement by our nation’s representatives that pre-FSA crack sentences were unnecessarily severe, unfair and excessively long.

While the text of the FSA provides the clearest objective evidence of the national consensus against the extreme pre-FSA crack sentencing provisions, federal practices, reflected in the work of other branches both before and after the FSA’s passage, confirm that the now-repealed 100-1 crack/powder cocaine sentencing scheme has long been rejected by all significant federal sentencing decision-makers....

It is not merely notable, but of great constitutional import, that virtually every federal criminal justice actor has in virtually every possible way acted in the last half-decade to demonstrate and vindicate the consensus view that pre-FSA crack sentences were excessively long.  Significantly, in recent Eighth Amendment cases such as Miller and Graham and Kennedy and Roper and Atkins, the Supreme Court found unconstitutional extreme sentences that were still being vigorously defended by the jurisdictions which imposed them.  Here, in sharp contrast, not only have the pre-FSA crack sentences imposed on the Blewetts been repealed by Congress, it is near impossible to find a single modern federal criminal justice decision-maker who will voice any substantive defense of the pre-FSA 100-1 crack sentencing structure.

Download Blewett Amicus NACDL

Related posts on Blewett:

June 28, 2013 at 04:29 PM | Permalink

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Comments

Nice work on the amicus brief, Doug. I can see the en Banc Sixth Circuit replacing the panel's "Equal Protection" justification (which was never briefed or argued to the 3-Judge panel)with your 8th Amendment arguments. I hope you remain a professor and they don't make youa Federal Judge!

Posted by: Jim Gormley | Jun 28, 2013 5:15:38 PM

"It is not merely notable, but of great constitutional import, that virtually every federal criminal justice actor has in virtually every possible way acted in the last half-decade to demonstrate and vindicate the consensus view that pre-FSA crack sentences were excessively long."

I think the court should respond: "With such overwhelming consensus as learned amicus claims, surely it will not be a problem for it to persuade Congress to adopt by legislation the retroactive change now sought. That -- legislative change -- is the appropriate mechanism for altering the effective date of validly enacted statutes. This court, however, lacks such a mechanism, and could only acquire it by turning itself into Congress, something we have no authority to do."

Posted by: Bill Otis | Jun 28, 2013 5:20:28 PM

You probably aren't surprised by the fact that I disagree with you Bill but you might be surprised to know its because I think your position is too liberal. The ex post facto clause should mean what it says and I do not see a unidirectional caveat in it. If Congress cannot pass laws that harm people for past conduct it cannot pass laws that help people for past conduct either. Although that may seem harsh the public policy rationale is that if Congress knows that it cannot go back and "fix" things it will be more hesitant to impose liabilities in the first instance.

Posted by: Daniel | Jun 28, 2013 5:45:43 PM

well Bill i agree with Daniel!

I'm STILL waiting for some of you legal types to TRY and explain how "No Expost" becasme "No Expost" except in civil or sex crimes!

Sorry but there is NO creative way for anyone let alone some govt fucktard to creative interpet "NO"!

Posted by: rodsmith | Jun 28, 2013 9:38:18 PM

Doug, thanks for the timely post on your amicus brief. I am working on a postconviction motion for a defendant who had a pipeline habitual felon case. After the offense, but before the sentencing, the legislature reduced hab felon sentences for nonviolent offenses by up to two thirds. I am arguing it violates the eighth amendment as applied to this particular case, to sentence a def to a sentence which 165 of 166 legislators decided was excessive.

good luck

bruce

Posted by: bruce cunningham | Jun 28, 2013 11:01:23 PM

Hmmmmm. I didn't realize the Constitution required the ripping up of settled criminal judgments because Congress changed its mind about penalties.

But hey, the Eighth Amendment is whatever Kennedy and the Gang of Four say it is, so why not take a whack at it?

Posted by: federalist | Jun 29, 2013 9:10:18 AM

Bill, as usual, is correct. An argument can be made that these sentences are "long," but no one can credibly argue that they are "unconstitutionally long."

Due to this, it is the height of judicial (professorial) arrogance to usurp the constitutionally appointed powers of Congress.

Posted by: TarlsQtr1 | Jun 29, 2013 11:21:17 AM

I suspect what is going on is the panel wants to reissue the opinion with an extra holding. Then the government will have to petition for rehearing en banc again. I don't think this briefing is because the en banc court wants to sua sponte rule on another totally new basis.

Posted by: Jay | Jun 29, 2013 2:49:20 PM

Mr. Bill: I think the court should respond: "With such overwhelming consensus as learned amicus claims, surely it will not be a problem for it to persuade Congress to adopt by legislation the retroactive change now sought. That -- legislative change -- is the appropriate mechanism for altering the effective date of validly enacted statutes. This court, however, lacks such a mechanism, and could only acquire it by turning itself into Congress, something we have no authority to do."

To which the response could be: "We once presumed the legislature passed only constitutional laws. We can no longer presume that because too many laws are unconstitutional nowadays. If we rule a statute or part of a statute or interpretation of a statute unconstitutional, the legislature still maintains the power to amend the law and bring it within constitutional boundaries. Lawmakers are none the weaker. The Constitution, not politics, is the highest priority of the judicial branch. This is how our county always operated as a balance of power against the tyranny of the majority or the tyranny of a dictator.

Posted by: George | Jun 29, 2013 5:47:51 PM

George --

I can only hope that the en banc Sixth Circuit leads off with, "We once presumed the legislature passed only constitutional laws. We can no longer presume that because too many laws are unconstitutional nowadays."

I can think of no surer way to a summary reversal by SCOTUS. I can also think of no more succinct a statement of judicial imperialism.

Posted by: Bill Otis | Jul 1, 2013 8:59:32 PM

why not bill. sorry isn't that prety much the excuse used today anytime a ex-con testify's. they lied once. HOW can we know they are teling the truth NOW?

Sorry after the 1,000's of occasions cops and other govt agents have been caught lieing though their fucking teeth! i put the same question to them!

HOW can we know your NOT lieing now! You can't. therefor like the ex-con's absent concrete evidence your teling the truth. YOU LIE!

same applies to politicians who pass laws that are ruled illegal over and over and over. Sorry after the first time. They should be required to run it past the fucking court before it can be passed. IF the court agree's it's NOT unconstutional. Then go for it!

Absent that they can get fucked!

Then maybe they would have time to do some real work. You know a real budget, real immigration reform. Hell might even pass some laws reforming their fucked up houses!

Posted by: rodsmith | Jul 1, 2013 9:47:22 PM

Mr. Bill, that argument was inspired by something i think Justice Scalia said during his book tour. I think he was referring to laws passed to test the court because the legislatures might get away with it -- pass 'em all and let the court sort 'em out. You have to admit it is far more common than it used to be.

Posted by: george | Jul 1, 2013 11:27:58 PM

george --

"Mr. Bill, that argument was inspired by something i think Justice Scalia said during his book tour."

I would love to see any quotation from Justice Scalia to the effect that courts are now entitled to presume that statutes are unconstitutional and thus free to enact their own, subject too later legislative revision.

Not that any such later legislative revision would survive either, in the world of the Imperial Judiciary for which you argue.

P.S. Assuming an imperial judiciary, could you cite a single court of appeals opinion, ever, holding that the 100-1 ratio violates the Eighth Amendment? That challenge has been made dozens of times over the last 25 years or so, and rejected every time. Cert has never been granted on it, nor is there any circuit split.

Let's assume the ratio is excessive. Let's also assume the sentence in this case is excessive (that being a very different matter). You surely know that there is a difference between an excessive term of years and a sentence that is, within the meaning of the Eighth Amendment, cruel and unusual.

With all respect to Doug, the argument here is a crack dealer's pipe dream. Ain't gonna happen. Wanna bet?

Posted by: Bill Otis | Jul 2, 2013 10:37:37 AM

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