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December 3, 2013

In lengthy split opinions, en banc Sixth Circuit rejects all efforts to give any relief to pre-FSA crack defendants still serving mandatory minimums

The Sixth Circuit this morning has handed down a lengthy set of opinion in the closely-watched Blewett litigation. All the opinions, which can be accessed here, run a full 79 pages.  It appears the vote to reject providing any relief to pre-FSA defendants still serving now-repealed mandatory minimums was 10-7, and here is the complicated accounting of the votes and opinions:

SUTTON, J., delivered the opinion of the court, in which BATCHELDER, C. J., BOGGS, GILMAN, GIBBONS, COOK, McKEAGUE, GRIFFIN and KETHLEGE, JJ., joined, and MOORE, J., join ed in the result. MOORE, J. (pp. 21–33), delivered a separate opinion concurring in the judgment. MERRITT, J. (pp. 34–37), delivered a separate dissenting opinion, in which DONALD J., joined. COLE, J. (pp. 38–43), delivered a separate dissenting opinion. CLAY, J. (pp. 44–58), delivered a separate dissenting opinion, in which DONALD, J., joined. ROGERS, J. (pp. 59–67), delivered a separate dissenting opinion, in which WHITE and STRANCH, JJ., joined, MERRITT, J., joined in part, and COLE, J., joined except for the last paragraph. WHITE, J. (pp. 68–79), delivered a separate dissenting opinion.

I am not at all surpsised by the line-up here, which notably seems to go down party lines save for Clinton appointees Judges Gilam and Moore with the Republican-appointee-heavy marjority, and Bush appointees Judges Rogers and White voting with the Democratic-heavy dissenting minority.  Here is how the opinion of the Sixth Circuit majority ends:

At the end of the day, this is a case about who, not what — about who has authority to lower the Blewetts’ sentences, not what should be done with that authority. In holding that the courts lack authority to give the Blewetts a sentence reduction, we do not mean to discount the policy arguments for granting that reduction.  Although the various opinions in this case draw different conclusions about the law, they all agree that Congress should think seriously about making the new minimums retroactive.  Indeed, the Fair Sentencing Act, prospective though it is, dignifies much of what the Blewetts are saying as a matter of legislative reform and may well be a powerful ground for seeking relief from Congress. Yet the language of the relevant statutes (the Fair Sentencing Act, § 109 and § 3582(c)(2)) and the language of the relevant decisions (Dorsey, Davis and Harmelin) leave us no room to grant that relief here. Any request for a sentence reduction must be addressed to a higher tribunal (the Supreme Court) or to a different forum altogether (the Congress and the President).

Especially because I have a very busy teaching week, I am unlikely to find the time to read and assess these opinions in full for a little while.  Moreover, because I have a much more robust view of the limits of the Eighth Amendment than most members of the federal judiciary, I suspect I will not be moved by how the majority disposed of this matter with reference to Harmelin and other cases which do not involve the sui generis reality of sustaining lengthy federal prison terms that have been resoundly and repeatedly rejected and disavowed by all other branches of the federal government and by all the states in the Union as well. 

December 3, 2013 at 11:32 AM | Permalink

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Judge Moore wrote: "The power and discretion of the federal courts, as well as our scope of review, are similarly constrained under 3582(c)(2) . . . As a result, the constitutionality of Cornelius Blewett's and Jarreous Blewitt's sentences is not before us today. But let there be no mistake: if a prisoner who is serving a sentence based on the old mandatory minimums, challenged his sentence under 28 U.S.C. 2241 or 2255, we could address the constitutional question directly." (p. 28).

As you said after the oral argument, Doug, "Get your printers ready!"

Posted by: Candace Crouse | Dec 3, 2013 12:32:26 PM

Only Clinton appointee joining the majority is J. Gilman (not J. Griffin), with J. Moore CIJ. J. White dissenting.

Posted by: Sean | Dec 3, 2013 1:03:40 PM

Right you are, sean, I was typing too fast, and I think I now corrected my typos/mistakes.

Posted by: Doug B. | Dec 3, 2013 3:31:15 PM

Judge White was a Bush appointee due to a deal after languishing as a Clinton appointee. Although she is not ideological, it is not surprising to see her join the dissent.

Posted by: Wilson | Dec 4, 2013 8:07:20 PM

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