Saturday, May 18, 2013
"Crackheaded Ruling by Sixth Circuit"The title of this post is the headline of this new commentary by Ed Whelan at the National Review Online concerning yesterday's suprising split panel ruling by the Sixth Circuit in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (opinion here; my commentary here). Here are excerpts from Whelan's take:
[I]n an opinion that will likely surprise all nine justices, a divided panel of the Sixth Circuit ruled (in United States v. Blewett) that the more lenient sentences of the Fair Sentencing Act apply to all crack-cocaine offenders, including those who were sentenced before the Act’s effective date. The justices will be much less surprised to discover that the opinion was authored by Gilbert S. Merritt Jr. and joined by Boyce F. Martin Jr., two Carter appointees who have plagued the Sixth Circuit for more than three decades. It’s notable that the thorough dissent comes not from a Republican appointee but from Clinton appointee Ronald Lee Gilman....
Under [the panel majority's] illogic, once it becomes known that a law has a (constitutionally permissible) racially disparate impact, the maintenance of that law would suddenly be transformed into intentional discrimination. As Judge Gilman observes, there is no support for such a proposition.
As Judge Gilman spells out, there is much more that is wrong with the majority opinion, from the fact that it rules on an “unbriefed and unargued issue” to its multiple violations of circuit precedent. Let’s see if the en banc Sixth Circuit will repair the damage or will instead leave it to the Supreme Court to do so.
Unsurprisingly, folks at the ACLU and FAMM have a much different perspective on the Sixth Circuit panel majority's work in Blewett. Here are the titles and links to the press releases coming from these groups:
- from the ACLU here, "Appeals Court Says Fair Sentencing Act Applies Retroactively"
- from the FAMM here, "Don't Appeal Crack Fairness Ruling, FAMM Tells DOJ"
For legal, policy and practical reasons, it should be very intriguing to watch closely just where, when and how the Justice Department and others are going to argue that the majority in Blewett really blew it.
- On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences
May 18, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack
Friday, May 17, 2013
On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentencesWith thanks to all the folks who alerted me while I was dealing with other matters, I am finally back on-line and able to report on a remarkable new split panel ruling by the Sixth Circuit today in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here). The start of the majority opinion (per Judge Merritt) will highlight for all federal sentencing fans why this ruling is a very big deal:
This is a crack cocaine case brought by two currently incarcerated defendants seeking retroactive relief from racially discriminatory mandatory minimum sentences imposed on them in 2005. The Fair Sentencing Act was passed in August 2010 to “restore fairness to Federal cocaine sentencing” laws that had unfairly impacted blacks for almost 25 years. The Fair Sentencing Act repealed portions of the Anti-Drug Abuse Act of 1986 that instituted a 100-to-1 ratio between crack and powder cocaine, treating one gram of crack as equivalent to 100 grams of powder cocaine for sentencing purposes. The 100-to-1 ratio had long been acknowledged by many in the legal system to be unjustified and adopted without empirical support. The Fair Sentencing Act lowered the ratio to a more lenient 18-to-1 ratio. However, thousands of inmates, most black, languish in prison under the old, discredited ratio because the Fair Sentencing Act was not made explicitly retroactive by Congress.
In this case, we hold, inter alia, that the federal judicial perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old crack sentencing law, as the government advocates, would violate the Equal Protection Clause, as incorporated into the Fifth Amendment by the doctrine of Bolling v. Sharpe, 347 U.S. 497 (1954) (Fifth Amendment forbids federal racial discrimination in the same way as the Fourteenth Amendment forbids state racial discrimination). As Professor William J. Stuntz, the late Harvard criminal law professor, has observed, “persistent bias occurred with respect to the contemporary enforcement of drug laws where, in the 1990s and early 2000s, blacks constituted a minority of regular users of crack cocaine but more than 80 percent of crack defendants.” The Collapse of American Criminal Justice 184 (2011). He recommended that we “redress that discrimination” with “the underused concept of ‘equal protection of the laws.’” Id. at 297.
In this opinion, we will set out both the constitutional and statutory reasons the old, racially discriminatory crack sentencing law must now be set aside in favor of the new sentencing law enacted by Congress as the Fair Sentencing Act of 2010. The Act should apply to all defendants, including those sentenced prior to its passage. We therefore reverse the judgment of the district court and remand for resentencing.
The start of the dissent (per Judge Gilman) will highlight for all federal sentencing fans why this ruling seems sure to get en banc and/or Supreme Court review:
I fear that my panel colleagues have sua sponte set sail into the constitutional sea of equal protection without any legal ballast to keep their analysis afloat. To start with, they “readily acknowledge that no party challenges the constitutionality of denying retroactive application of the Fair Sentencing Act to people who were sentenced under the old regime.” Maj. Op. 6. Opining on this unbriefed and unargued issue is thus fraught with the likelihood of running aground on the shoals of uncharted territory.
As the title of my post hints, though I really like the effort, I am not sure a Fifth Amendment equal protection theory provides a strong constitutional foundation for giving the new crack sentences retroactive effect. But I have long thought, 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.
If (dare I say, when) this notable Blewett ruling gets subject to further review, I hope to have a chance to fully explicate (perhaps via an amicus brief) my Eighth Amendment approach to reaching the conclusions reached by the majority here on distinct constitutional grounds. In the meantime, we have an interesting Friday ruling to debate through the weekend.
May 17, 2013 in New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (8) | TrackBack
Sunday, May 05, 2013
"Retroactivity and Crack Sentencing Reform"The title of this post is the title of this new paper by Harold Krent now available via SSRN. Here is the abstract:
This article argues that the strong presumption against retroactive application of reduced punishments articulated in the Supreme Court’s recent decision in Dorsey v. United States is neither historically grounded nor constitutionally compelled. Although not dispositive in Dorsey, the presumption may prove pernicious in future cases, whether in dealing with marijuana decriminalization or lessened punishment for file sharing, and in no way should signal to Congress that future changes should apply prospectively only.
Although the Court reached the right result in applying the reduction in punishment for crack offenses to offenders whose sentences had not been finalized, the Court inordinately relied on the general savings statute enacted in 1871. Congress enacted that statute not to prevent retroactive decriminalization or diminution in punishment, but to avoid the consequence of abatement of pending prosecutions and penalties that, at common law, followed from alteration of a criminal statute. Congress wished to avoid the bizarre consequence of offenders walking free merely because Congress recodified a law or even increased the punishment for an offense without specifying that prosecutions could continue under the former enactment. In today’s world, the savings statute should be understood more as a default in the face of congressional silence – once it is clear that Congress considered the temporal scope of its action, the presumption disappears.
I next consider whether alternative justifications support a strong presumption for prospective application of any legislative change. I initially turn to the well entrenched norm against retroactive lawmaking. I reject the premise that the conventional reasons against retroactive measures have salience in the context of legislative amelioration of punishment. I then assess two separation of powers concerns that might justify a clear statement rule against retroactive application of congressional leniency. First, I ask whether Congress’s reduction of sentences would interfere with the President’s pardon authority under Article II, and second, whether Congress lacks the power to undo a final decision of the judiciary. The constitutional arguments raise no serious barrier to retroactive application of congressional leniency.
On the other hand, I reject the notion that Congress, in light of equal protection principles, must benefit those who previously committed the offense. To be sure, ignoring the plight of prior offenders at times seems grossly unfair, and Congress from a deterrence perspective lacks any justifiable reason to treat similarly situated offenders so disparately. Nonetheless, I argue that Congress under a retribution rationale can justify the differential punishment scheme and survive equal protection scrutiny.
In short, because there are no compelling policy or constitutional grounds to presume that congressional leniency should apply prospectively only, Congress should be accorded the discretion to determine where to draw the line in determining the proper amount of retribution for those who committed offenses prior to the decriminalization or diminution in punishment. The Court’s decision in Dorsey should have been straightforward – given the directive in the sentencing act to rectify the disparity in sentencing between crack and powdered cocaine offenses as quickly as possible, Congress intended the shortened sentences to apply to all pending cases.
Tuesday, February 12, 2013
DC Circuit works hard to figure out just what Freeman means for guideline retroactivityAn informed and thoughtful reader recommended to me today's interesting rulng by a DC Circuit panel in US v. Epps, No. 11-3002 (DC Cir. Feb 12, 2013) (available here). The Epps court, in a setting which one judge thought make the case moot, has to unpack the SCOTUS Freeman decision concerning plea agreements and guideline retroactivity. Among other interesting aspects of the case, the panel unpacks the important issue of which SCOTUS opinion controls when the Justices divide 4-1-4 . Here is how the Epps opinion gets started:
In Freeman v. United States, 131 S. Ct. 2685 (2011), the Supreme Court held that the district court is not categorically barred from reducing a defendant’s sentence under 18 U.S.C. § 3582(c)(2) where the defendant entered into a plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). The decision was splintered, however, with the plurality and concurring opinions adopting different reasoning. Prior to Freeman, the district court denied Ricardo Epps’ § 3582(c)(2) motion for a reduction of his Rule 11(c)(1)(C) sentence. United States v. Epps, 756 F. Supp. 2d 88 (D.D.C. 2010). Epps appeals, contending that there is no controlling opinion in Freeman and that because the district court (as well as the Rule 11(c)(1)(C) agreement) relied upon the crack-cocaine Guidelines range when determining whether to accept the stipulated sentence, his sentence was imposed “based on” the Guidelines range and the district court was authorized under § 3582(c)(2) to reconsider and reduce his sentence in light of the Sentencing Commission’s reduction of the sentencing range applicable to him. For the following reasons, we reverse and remand the case to the district court.
February 12, 2013 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack
Monday, December 24, 2012
Latest USSC data on retroactivity of crack guidelines reduced by FSA
I just noticed on the US Sentencing Commission's website this new data report on "Fair Sentencing Act Amendment Retroactivity." The report is described this way: "This report provides data concerning the retroactive application of the 2011 amendment to the federal sentencing guidelines implementing the Fair Sentencing Act of 2010."
Based on the information reflected in Table 8 of this data report and elsewhere, it appears that nearly 6600 defendants received, on average, a 29-month reduction in their crack sentences thanks to the new FSA crack guidelines being made retroactive. That adds up to nearly 16,000 cumulative years of federal imprisonment eliminated and an economic saving to federal taxpayers of approximately a half-billion dollars (based on a conservative estimate of a taxpayer cost of roughly $30,000 per prisoner for each year of federal incarceration).
Notably, according to Table 5 of this data report, more than 85% of those benefiting from reduced crack sentences are black prisons. The historically racialized reality of federal crack prosecutions is thus again on display as one reviews this data.
Here is to hoping, especially during the holiday season, that all the persons who benefited from the new reduced FSA crack sentences will turn their lives around. If these defendants who received reduced sentences find ways to become productive (and tax-paying) citizens, the benefits to society will profoundly transcend the saved incarceration costs.
December 24, 2012 in Detailed sentencing data, Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, Race, Class, and Gender | Permalink | Comments (0) | TrackBack
Tuesday, December 04, 2012
Seventh Circuit rejects claims that district judge should reject new 18:1 guideline crack ratioThe Seventh Circuit handed down an interesting decision today in US v. Matthews, No. 11-3121 (7th Cir. Dec. 4, 2012) (available here), in response to a defendant's claim that he should be sentenced based on a 1:1 powder/crack cocaine ratio rather than the 18:1 ratio now reflected in the revised sentencing guidelined. Here is a key section of the start of the panel's discussion in Matthews:
On appeal Matthews challenges two aspects of his sentence. First, he argues that the district court committed procedural error by treating the 18:1 crack-topowder sentencing ratio in the guidelines as binding. Second, he claims that the court’s decision to adhere to that ratio created unwarranted sentence disparities because other judges in the same district used a 1:1 ratio in like cases. See 18 U.S.C. § 3553(a)(6) (instructing district courts to consider whether a sentence results in “unwarranted sentence disparities”).
We reject these arguments and affirm. The district court commented on the drug-quantity ratio in direct response to Matthews’s argument that the court should follow the lead of other judges in the district and impose a belowguidelines sentence based on a 1:1 crack-to-powder ratio. The judge declined to do so, deferring instead to the 18:1 policy adopted in the Fair Sentencing Act of 2010 and the corresponding amendments to the guidelines. Although the judge adopted a highly deferential stance toward the judgment of Congress and the Sentencing Commission, there is no indication that he misunderstood his discretion to use a different ratio. Matthews’s argument to the contrary is implausible this far removed from United States v. Booker, 543 U.S. 220 (2005), Kimbrough v. United States, 552 U.S. 85, 109 (2007), and Spears v. United States, 555 U.S. 261 (2009). Moreover, the judge’s decision to adhere to the ratio endorsed by Congress and the Commission does not make the resulting withinguidelines sentence unreasonable merely because other judges in the district exercised their discretion to use a different ratio. A sentence disparity that results from another judge’s policy disagreement with the guidelines is not “unwarranted” under § 3553(a)(6).
December 4, 2012 in Booker in the Circuits, Drug Offense Sentencing, Kimbrough reasonableness case, New crack statute and the FSA's impact, New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack
Wednesday, June 27, 2012
"Cracking the Disparities: The Ongoing Battle for Fairness in Crack Sentencing"
The title of this post is the headline of this effective new commentary by Nkechi Taifa at the Huffington Post. The piece highlights that the passage of the FSA and the subsequent ruling for defendants in Dorsey hardly makes all well in the federal sentencing world, and it urges President Obama to get in the game. Here are excerpts:
Last week's Supreme Court ruling in Dorsey v. United States represents another victory in the ongoing battle for fairness in cocaine sentencing. The Court correctly ruled that the 2010 Fair Sentencing Act (FSA), which increased fairness in cocaine penalties, was not limited to newly committed crimes but applied also to offenses committed prior to passage of the Act where the defendant had not yet been sentenced....
The ruling comes in the wake of advances that have successfully chipped away disparities between crack and powder cocaine sentencing. First, Congress passed the FSA, reducing the egregious 100-to-1 sentencing ratio to a more reasonable, albeit still insufficient, 18-to-1. Second, the U.S. Sentencing Commission amended its guideline ranges to be consistent with the new Act. Third, the Commission unanimously agreed to make these changes retroactive....
None of these necessary improvements, however, benefit those whose offenses and harsh, discriminatory mandatory minimum sentences occurred prior to the Fair Sentencing Act's passage. Ironically, these are the very cases that originally inspired reform.
The process for relief for this remaining category of cases can be swiftly initiated with the stroke of the executive pen, moving the nation closer to concluding a shameful chapter in the chronicles of federal drug sentencing policy. There is wide support for fairness and consistency in cocaine sentencing, and utilizing presidential clemency power is the most practical option to ensure immediate reform. Commutation of the sentences of the identifiable class of people currently incarcerated for crack cocaine offenses under the old sentencing regime -- that all three branches of government agree is unjust, inconsistent, unfair, and biased -- is timely and can be readily accomplished.
Professor Mark Osler and former prosecutor Matthew Fass in a recent article [here from the Federal Sentencing Reporter], highlighted Gerald Ford's 1974 strategic use of the presidential pardon power to impanel an ad hoc executive clemency board to oversee the petitions of 21,000 people convicted of draft-related offenses during the Vietnam War. Within a year, President Ford granted 90 percent of the petitions. On balance, the approach by Ford to establish a pardon board allowed for individualized review of each clemency application, with options including approval, community service, or denial....
Similarly, adoption of an individualized review process for pre-FSA cases would not be burdensome or a "get out of jail free card." Cases could simply be recalculated according to the new 18-to-1 ratio, under already existing parameters established by the Sentencing Commission that result in gradual releases in appropriate cases over the course of several decades. The president would be free to use his constitutional pardon power unrestricted by the 18-to-1 ratio should he so choose.
Moreover, the creation of a transparent process by which to review and remedy these discredited sentences would correct an injustice that has resulted in egregiously severe and racially discriminatory sentences for a quarter of a century. And establishment of a clemency board independent of the Office of the Pardon Attorney and the Department of Justice could shield the review process from scandals of past administrations and current allegations of discriminatory treatment of clemency applications unveiled by the investigative journalism website Pro Publica....
Despite improvements by Congress, the Sentencing Commission, the Department of Justice and the Supreme Court, the fight for fairness and justice in crack cocaine sentencing is not over. The president could bring closure to this injustice through his constitutional executive power of clemency, creating a review board to reevaluate old crack cocaine sentences so they are consistent with the new law.
Regular readers should not be surprised to hear that I think this is a great idea, nor should they be surprised to see this great idea get completely ignored by the powers-that-be in the White House (at least until after this November's election).
June 27, 2012 in Clemency and Pardons, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack
Thursday, June 21, 2012
Has Justice Scalia won the legislative history war despite losing Dorsey battle?
There is much to say in future posts on future days about the merits and the likely aftermath of the Supreme Court's work in the crack pipeline cases Dorsey and Hill (which I will soon just be calling Dorsey and have already discussed here and here). But before diving later into matters of substance, I want to make two quick points about SCOTUS method.
First, I want to praise in a hearty, heartfelt way the notable fact that neither opinion in Dorsey uses the word "retroactivity" to describe the issue in the case. I explained in this post a few months ago why I thought the term "retroactivity" has been lots of (opaque and confusing) meanings and why I did not think the issue in the Hill and Dorsey FSA pipeline cases was properly cast as a retroactivity issue. I am so very pleased to see that Justices avoid any use of this (loaded?) term in the Dorsey opinions.
Second, I want to spotlight that Justice Breyer's majority opinion in Dorsey makes no real mention of any of the (many) statements of "legislative history" which surrounded the passage of the Fair Sentencing Act. The parties and amici advocating the interpretation adopted by the majority in Dorsey rightly and effectively cited to lots of helpful legislative history to support its arguments, but none of this history is mentioned in the Court's opinion. I have to suspect that the majority, knowing that any reliance on legislative history in this context might prompt a sharp retort from Justice Scalia (or other dissenters), decided it could and should set forth support for its ruling without reengaging any broader debates over the consideration of legislative history in statutory interpretation.
In 5-4 opinion, defendants prevail in crack pipeline cases via the FSA
As I hoped and expected, today brought us not only a pro-defendant Sixth Amendment ruling from the Justices in Southern Union (basics here), but also a pro-defendant statutory ruling the the crack pipeline cases of Hill and Dorsey. Specifically, as per the early SCOTUSblog report, we have this outcome:
We have the opinion in Dorsey and Hill, the Fair Sentencing Act cases. The opinion is by Breyer. The Seventh Circuit is vacated and remanded. The vote is 5-4. Justice Scalia dissents, joined by the Chief and Alito and Thomas.
The Court holds that the FSA's new mandatory minimums applies to sentences for crack cocaine imposed after the Act for pre-Act crimes. Dorsey and Hill have the more traditional line-up that we have come to expect in 5-4 cases.
The full opinion is now at this link and I am certain I wil have much to say about the ruling and its import in the hours to come.
Monday, June 04, 2012
Another week of SCOTUS waiting for sentencing fans
I had thought there was a reasonable possibility that the Supreme Court sometime this week might hand down one of the big sentencing cases still pending: Southern Union (Apprendi's application to fines); Jackson and Miller (mandatory LWOP for young juve murderers); Dorsey and Hill (the FSA's application to pipeline cases). But, as detailed via this post at How Appealing, the Justices did not issue opinions in any of these cases this morning. They Justices did grant cert and hand down one opinion on police practice issues, and Lyle Denniston reports here at SCOTUSblog that probably the most notable criminal justice decision was a cert denied in two high-profile federal convictions flowing from campaign donations in Alabama.
According to the folks at SCOTUSblog, it appear that the Court will not hand down opinions again until next Monday. So, it's another week of waiting for these sentencing rulings. Fortunately, absent some dramatic or unexpected development (such as a order for reagument), I think we can reasonably expect to see opinions in all of these cases within the next three weeks.
Anyone yet eager to make predictions on the timing, outcomes, vote counts or opinion writers in these big sentencing cases. At this moments I am inclined to guess we will get Southern Union next week, the juve LWOP cases the week of June 18, and the FSA pipeline cases the week of June 25. In addition, I think the defendants are likely to previal in these cases by votes of 7-2, 5-4, and 6-3, with Justices Thomas, Kennedy and Sotomayor as principal opinion writers.
But who really knows with this Court these days!?!?
June 4, 2012 in Blakely in the Supreme Court, Jackson and Miller Eighth Amendment cases, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack
Thursday, 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:
- SCOTUS to review FSA pipeline issue via Dorsey and Hill grants
- Why talk of "retroactivity" makes me (unjustifiably?) nuts in the FSA pipeline cases
- A quirky constitutional query about quirky sentencing laws
- Early report on SCOTUS oral arguments in FSA pipeline cases
Tuesday, April 17, 2012
Early report on SCOTUS oral arguments in FSA pipeline cases
Thanks to this post by Lyle Denniston at SCOTUSblog, headlined "Argument recap: A dilemma over race," we can all get a quick account of the SCOTUS oral arguments this morning in Hill and Dorsey. Here is how the post begins:
A racial issue in criminal sentencing that has bedeviled all three branches of the federal government for a quarter century took a little time to emerge in a Supreme Court argument on Tuesday, but when it did, it had a noticeable impact on the Justices. After spending much of the first half-hour focusing on the meaning of two federal statutes, one passed in 1871, the other in 2010, the Court appeared strongly inclined to limit those who could benefit from Congress’s keen desire to narrow the racial disparity in sentencing for cocaine crimes.
But the tone changed as the Justices turned their focus to the prospect of perpetuating that racial disparity for at least a few years longer. That began to look quite unattractive to the Court.
I have a long plane ride this afternoon during which I will poor over the full argument transcript (which is now available at this link), and I am certain I will have a lot more to say about what the Justices had to say today later tonight.
UPDATE: A cranky internet connection while on the road has prevented me from finding time to comment more on the oral arguments in these cases, but How Appealing has a collection of media reports on the argument available at this link. With luck, I hope still to be able to discuss these cases more before the Justices themselves do at this Friday's private conference.
Basic preview of today's SCOTUS arguments on crack sentencing rules
This morning the Supreme Court will hear consolidated argument in the Fair Sentencing Act statutory interpretation cases Hill and Dorsey. This new article in the Los Angeles Times, headlined "Supreme Court to weigh crack cocaine sentences," provides a very effective basic preview, and it begins this way:
Nearly two years ago, President Obama signed into law a "fair sentencing" act to reduce the long prison terms meted out to people who were caught with small amounts of crack cocaine. But the law did not make clear whether it should apply to cases that were pending when the measure was signed.
On Tuesday, the Supreme Court will consider whether the lighter sentences apply to hundreds of cases in the pipeline when the law was signed on Aug. 3, 2010.
The issue is complicated because the Justice Department and Atty. Gen. Eric H. Holder Jr. changed their views on the matter. Shortly after Obama signed the law, Holder's department said the changes applied only to new crimes. Last summer, however, after prodding by Senate Democrats, Holder switched his position and said the new rules for crack cocaine prison terms applied to all who were sentenced after Obama signed the bill, even if their crimes took place two or three years before.
For a pair of Chicago-area defendants, the change could mean the difference between serving about three to four years in prison or 10 years behind bars. "It would be unconscionable" to sentence defendants under the law Congress had repealed as too harsh, said Mary Price, general counsel for Families Against Mandatory Minimums. She said many judges balked at using the stiff mandatory sentences after Congress changed them. "The courts were ahead of the Justice Department on this," she said.
A few recent posts on these SCOTUS cases:
- SCOTUS to review FSA pipeline issue via Dorsey and Hill grants
- Why talk of "retroactivity" makes me (unjustifiably?) nuts in the FSA pipeline cases
- A quirky constitutional query about quirky sentencing laws
Friday, April 13, 2012
Why talk of "retroactivity" makes me (unjustifiably?) nuts in the FSA pipeline cases
Regular readers know I blogged a lot about the application of the Fair Sentencing Act to what I call "pipeline" crack cases as they worked their way through lower courts over the last two years. But I have not blogged much about this issue since the Supreme Court in November 2011 formally took up, in the cases of Hill and Dorsey, whether the FSA's new mandatory minimum terms apply to initial sentencings that take place after the statute’s effective date if the offense occurred before that date. I have resisted much blogging since the cert grants largely because I have played a role in helping Hill's lawyers develop their briefs for SCOTUS.
But with the Hill and Dorsey cases now due to be argued early next week before SCOTUS, and with Lyle Denniston providing this detailed account of the background and briefing in these cases at SCOTUSblog, I cannot resist discussing one matter of (seemingly important) semantics that continues to make me nutty in these FSA pipeline cases. As the title of this post notes, the word that makes me nuts is "retroactivity" (which Lyle uses in his otherwise terrific argument preview), in part because this term can and has been given lots of meanings and in part because I do not think the issue in the Hill and Dorsey FSA pipeline cases is properly cast as a retroactivity issue.
Because I have not done a comprehensive analysis and deconstruction of the term "retroactivity" in all legal settings, maybe I am misguided to let this term drive me crazy here (and readers should tell me so in the comments). Nevertheless, I do know that in the federal habeas context, the term "retroactivity" has been given a precise meaning and it applies only when a prisoner or defendant is seeking to take advantage of a new legal ruling after his case as become "final" all the way through direct appeals. Stated differently, for habeas purposes, only unless and when a defendant's case is "final" all the way through all direct appeals does that defendant then have to worry about establishing that a new doctrine should apply "retroactivity."
Critically, the defendants in Hill and Dorsey had not even been sentenced at the time the FSA's new sentencing provisions became law, and so any discussion of the term "retroactivity" in their cases is necessarily inconsistent with how this term is properly deployed in the habeas context. Moreover, and to add another layer of nuance (and potential confusion), because they had not yet been sentenced, the defendants in Hill and Dorsey at sentencing technically were not asking a court to "undo" any formal legal determination that had already been made (in contrast to crack defendants already sentenced before the FSA became law but still pursuing direct appeals). Rather, all that these particular pipeline defendants seek is application of the latest (reduced) sentencing law at the time of their sentencing.
Put more directly and specifically, becuase the new law Hill and Dorsey want applied is a sentencing law, I do not think it is fair or accurate to say they are seeking retroactive application of this new law because they had not yet been sentenced under the old law. Becuase they committed their crimes at the time when the old sentencing way was still in place, I understand fully why those eager to prevent them from getting the benefits of the new law are asserting that they are pressing a "retroactivity" claim. But I really do not think that label makes any sense here, especially given that an express key provision of the Sentencing Reform Act, 18 U.S.C. § 3553(a)(4)(ii), calls for sentencing courts generaly to apply the guidelines sentencing law "in effect on the date the defendant is sentenced." I have never heard anyone describe this provision as the "retroactivity" instruction in the Sentencing Reform Act, nor do I think it has ever been seen as a controversial issue of "retroactivity" when defendants the benefit of reduced guideline sentences at the time of their sentencing even when/if they committed their crimes long before.
All that said and terminology concerns aside, I fully urge everyone to catch up to speed on all these issues via Lyle's effective preview at SCOTUSblog, which includes this crisp account of key elements to the dispute put before the Justices:
The briefs on the merits emphasize that the controversy before the Justices is basically one of statutory interpretation — sorting out the 2010 law, of course, but also a law enacted in 1871. The immediate question is which of the two laws should control the retroactivity question. There is, however, an implied constitutional question. Because of the disparate racial impact of the old 100-to-1 ratio, there is a lurking issue of discrimination in the case. That is being invoked by attorneys for the two Illinois men, on the theory that, to avoid confronting the constitutional issue, the Court should not validate new sentences that are based on the old ratio and thus keep a racially tinged system in operation. The Justice Department makes much of Congress’s wish not to perpetuate the disparity with its racial impact, but does not itself raise the “constitutional avoidance” issue directly....
There is no doubt that Congress definitely wanted to make a break from the experience that had prevailed almost since the very beginning of the 100-to-1 ratio in 1986, but there is enough uncertainty about its specific intentions regarding post-Act sentencing for pre-Act crimes as to leave some doubt in the Justices’ minds. Whether the Court would find ambiguity in the exact text of the 2010 law could be crucial. The amicus has gone to considerable lengths to suggest that, as between the 1871 law and the 2010 law, clarity definitely emerges most in the old law. Moreover, the mere fact that the Circuit Courts have divided as deeply as they have tends to suggest that there is no obvious way to make both the 1871 law and the 2010 statute equally operable on the retroactivity issue.
The Court, of course, is well aware, from its own experience with the crack vs. powder controversy, of the racial overtones that have lingered almost from the original enactment of the 100-to-1 ratio in 1986. A decision to keep that ratio in effect, with the continuing prospect that the racial factor will remain a feature of the actual sentences that do get imposed, may be an unattractive alternative for the Court. But if it should side with the Court-appointed amicus’s argument that numerically there won’t be a great many sentences for pre-2010 crimes, this potential may not be so significant.
Federal sentencing, as a general matter before the Court, has been a troubling and sometimes divisive issue for the Justices. What ultimately will make the difference in outcomes in this field is not easy to see in advance. The dispute over the crack vs. powder disparity has now returned to the Court with two very different perspectives laid before the Justices in the briefs. The quality of the oral argument thus might turn out to be critical in framing the response.
Tuesday, March 13, 2012
Notable comments on sentencing policy reform from AAG Breuer
This DOJ release, headlined "Assistant Attorney General Lanny A. Breuer Speaks at the Benjamin N. Cardozo School of Law," provides the text of a speech given today by the head of Justice Department's Criminal Division. Intriguingly, the text includes a lot of sentencing reform discussion and merits a full read. These notable passages seemed especially worth highlighting:
Although the Criminal Division’s primary mission is to investigate and prosecute crime, because we are in Washington, D.C., the division also plays a unique role in the development of criminal law policy. And I consider it to be a critical aspect of the Division’s work to advocate for reforming those aspects of the criminal justice system that we view as not working, or in need of improvement....
Today, I want to tell you about one example in particular, involving sentencing policy....
Twenty-six years ago, in the Anti-Drug Abuse Act of 1986, Congress instituted a stringent sentencing policy that created, among other things, an extreme difference in sentencing policy for crack cocaine and powder cocaine offenses....
Data compiled by the U.S. Sentencing Commission indicated that, among other effects, the extreme disparity in sentences for crack and powder cocaine offenses had a disproportionate impact on African Americans. For example, in 2006, according to the commission, 82 percent of individuals convicted of federal crack cocaine offenses were African American, while just 9 percent were white.
As a result, the crack and powder cocaine regime came to symbolize a significant unfairness in the criminal justice system, and the Sentencing Commission and others began advocating many years ago for the 100:1 ratio to be reduced. But it was not until 2010, when President Obama signed the Fair Sentencing Act, or FSA, into law that something was done about it.
Early in this administration, the Justice Department began advocating to completely eliminate the disparity in crack and cocaine sentencing, and reduce the ratio to 1:1. Indeed, days after I joined the Justice Department, in 2009, I was proud to testify before Congress on behalf of the administration in favor of eliminating the disparity.
The FSA reduced the ratio from 100:1 to 18:1. In doing so, it did not go as far as we had urged. But the act was nevertheless hugely important, going a long way toward eliminating the appearance of racial bias in the sentencing system.
Of course, our work in the area of sentencing is not done. As I’m sure many of you know, the U.S. Sentencing Guidelines went into effect in 1987, prescribing specific sentencing ranges for particular crimes, depending upon the defendant’s criminal history and other factors. In 2005, however, the U.S. Supreme Court decided in the case of Booker v. United States, that federal judges could treat the sentencing guidelines as advisory only. And there is evidence that unwarranted sentencing disparities have been increasing in recent years. One area among others in which we have seen significant such disparities is financial fraud. With increasing frequency, federal district courts have been sentencing fraud offenders -- especially offenders involved in high-loss fraud cases -- inconsistently and without regard to the federal sentencing guidelines. For example, we have seen defendants in one district sentenced to one or two years in prison for causing losses of hundreds of millions of dollars while defendants in another district receive 10 or 20 years in prison for causing losses a fraction of the size. This is another challenge in sentencing that we will need to address in the coming months and years.
The Fair Sentencing Act is just one example, albeit a very important one, of many I could give you where Criminal Division lawyers and others in the department have worked hard to advance needed legislation and reform an aspect of the criminal justice system in need of repair. Your own Benjamin Cardozo once said, “Justice is not to be taken by storm. She is to be wooed by slow advances.” In Washington, certainly, change rarely comes quickly, and because it is always the product of compromise, usually no one gets exactly what they were hoping for. That was indeed the case with respect to the Fair Sentencing Act. At the same time, when you see what is involved in moving a dramatic piece of legislation, or reforming something as fundamental as sentencing policy, such “slow advances” represent enormous achievements.
I adore the notion of seeking to "woo" Lady Justice though slow advances; extending the metaphor, I think we might well view debates over sentencing reform as a product of a number of different suitors pitching woo at Lady Justice.
Thursday, January 26, 2012
House Judiciary member asks AG Holder good (and overdue) questions on pardon process
Over at Pardon Power (where PS Ruckman continues to do great work on the recent Mississippi pardon spree), there is now this notable new post reporting that a "Legislative Assistant in the Office of Rep. Robert C. 'Bobby' Scott (VA-03) -- member of the House Judiciary Committee -- has confirmed that the following questions have been submitted to U.S. Attorney General Eric Holder":
1. You testified when you were confirmed that you would study the problems with the clemency advisory process and fix them. Please let us know what you have found and what changes you have made or plan to make.
2. It has been reported that the pardon attorney no longer assigns commutation cases to staff attorneys, and does not write a recommendation in the large majority of these cases.
3. How does this fulfill the Department's responsibility to advise the president about the merits of each case?
4. Doesn't this make the commutation process meaningless for most applicants?
5. How can the pardon attorney himself conduct a meaningful review of thousands of commutation petitions?
6. Even if most of these should be denied, if no one is really looking at them, how do you know each one is without merit?
7. We can all agree that no system is perfect. The legal system is no exception. There are mistakes. The Constitution gives the president a role in fixing such mistakes. How does this procedure help the president do that?
8. How does the pardon office identify the rare exception that deserves a closer look? Political support? Media attention? If so, is that the best way — the most fair way — to make these decisions?
As the title to this post suggests, I view all of these question to AG holder to be good ones and long overdue. In addition, I would have added a substantantive query based on DOJ's testimony and recent Congressional work on crack sentencing: "In light of your Department's advocacy for crack and powder cocaine sentences to be equalized, as well as the passage of the Fair Sentencing Act in 2010, has any effort been made to give special attention or review to any commutation petitions filed by persons still serving very long crack sentences who may be able to make an especially convincing claim that their continued incarceration is unfair and serves no continued valid purpose?"
Monday, December 12, 2011
Why the wasteful(?) Eighth Circuit affirmance of FSA pipeline sentence with Hill and Dorsey pending?
As regular readers know (and as reported here), last month the Supreme Court via cert grants in Hill and Dorsey took up the issue of whether the Fair Sentencing Act's reduce crack mandatory minimums apply to initial sentencings that take place after the statute’s effective date if the offense occurred before that date. Because this circuit-splitting issue will now be resolve by the Supreme Court within a matter of months, I find notable and a bit worrisome this ruling today in US v. Duncan by an Eighth Circuit panel which affirms a "old" 5-year mandatory minimum term against a defense challenge that the new law should apply.
The ruling in Duncan notes the circuit split on this FSA application issue and the fact that the Supreme Court has taken up this matter, but it then affirms the sentence by noting existing circuit precedent that forecloses the defendant's argument that the reduced FSA mandatory minimum terms apply to this pipeline case. But I cannot help but wonder why the Eighth Circuit did not simply hold on to this case awaiting guidance from SCOTUS rather than resolve it against the defendant and thereby require her to file a cert petition to keep the issue preserved.
I assume there are right now dozens, if not hundreds, of similar cases pending in the circuits courts that have rejected the FSA applicability in this situation, and I also assume that the most efficient (and arguably just) way to handle these cases right now is to just keep them on the circuit docket until the Supreme Court rules so that additional filings are not required by the parties until we get a SCOTUS decision. The approach taken by the Eighth Circuit, however, will now require (1) a SCOTUS cert filing by the defendant, (2) consideration by the SG concerning any possible SCOTUS response, (3) a GVR by SCOTUS if it issues a ruling in Hill and Dorsey with any pro-defendant elements. And, assuming the defendant in Duncan has a court appointed attorney (as do the vast majority of crack defendants) each one of these steps will be taking place entirely on the federal taxpayers' dime.
Given the size of the federal budget, the thousands of dollars that seem likely now to be wasted in this Duncan case is hardly going to be noticed. But I still wonder what benefits might be gained by the Eighth Circuit's (too) quick disposition while this matter is pending before SCOTUS. And I also wonder if (and hope that) other circuits are thinking through these matters before being too quick to resolve cases that seem likely to be back on their docket in only a matter of months.
December 12, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack
Monday, November 28, 2011
Lots of details on the new SCOTUS sentencing cases
Via SCOTUSblog at this post, I can provide here more information and links to key documents in the exciting new sentencing cases taken up by the Supreme Court this morning:
[T]he Court had been holding one of today’s granted petitions, Hill v. United States, to be considered alongside several other petitions that raise the same issue: whether the Fair Sentencing Act (which reduced the crack-powder sentencing differential) applies in an initial sentencing proceeding that takes place on or after the statute’s effective date if the offense occurred before that date.... Hill has been consolidated with Dorsey v. United States (case page forthcoming), for a total of one hour of argument....
Hill v. United States (Granted)
Docket: 11-5721Certiorari stage documents:
Issue(s): Whether the Fair Sentencing Act of 2010 applies in an initial sentencing proceeding that takes place on or after the statute’s effective date if the offense occurred before that date.
- Opinion below (7th Cir.)
- Petition for certiorari
- Brief for the United States
- Petitioner's reply (forthcoming)
Southern Union Company v. United States (Granted)
Docket: 11-94Certiorari stage documents:
Issue(s): Whether the Fifth and Sixth Amendment principles that this Court established in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, apply to the imposition of criminal fines.
Recent related posts on the new SCOTUS cases:
- SCOTUS to review FSA pipeline issue via Dorsey and Hill grants
- SCOTUS to decide whether Apprendi applies to criminal fines via Southern Union
SCOTUS to review FSA pipeline issue via Dorsey and Hill grants
As indicated on this Supreme Court order list released this morning, the Justice have taken up a pair of cases, Hill v. United States, 11-5721, and Dorsey v. United States, 11-5683, to address the circuit split over whether the new Fair Sentencing Act new mandatory minimums for crack offenses apply to defendants who committed crimes but were not yet sentenced when the FSA became law. Kudos to the Court and huzzah!
Regular readers know that I have be following this intricate "crack-cases-in-the-pipeline" sentencing issue closely for nearly two years (starting way back in March 2010 when the Senate passed its version of the FSA). I have lots of thoughts on this matter, and I am already thinking about authoring an amicus brief in Hill and Dorsey to address some statutory construction canons that, in my view, have not been fully briefed in the lower courts.
Though I will have more on these cases in the weeks and months ahead, I sure hope for the sake of lots of defendants that lawyers have been effectively preserving this issue in cases that have been in the pipeline all this while. This issue is now on track to be conclusively resolved by June, and perhaps even sooner (though not a moment too soon).
November 28, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2) | TrackBack
Thursday, October 20, 2011
Split Fifth Circuit deepens split over FSA's application to pipeline cases
I am not tickled to have to report than another circuit has now refused to allow the application of the Fair Sentencing Act's revised statutory sentencing minimums to defendants who committed crack offenses before the FSA became law, but were sentenced after it was signed by President Obama in August 2010. The new ruling comes from the Fifth Circuit in US v. Tickles, No. No. 10-30852 (5th Cir. Oct. 19, 2011) (available here), and the per curiam majority opinion begins this way:
The court considered these cases jointly without oral argument because they raise a single issue: whether these defendants, who were convicted inter alia of possession with intent to distribute crack cocaine, were entitled to be sentenced according to the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111- 220, 124 Stat 2372, when their illegal conduct preceded the Act but their sentencing proceedings occurred post-enactment. The issue is the retroactivity, or partial retroactivity, of the FSA, a statute intended by Congress to “restore fairness to Federal cocaine sentencing,” 124 Stat. at 2372, by reducing the previous 100:1 ratio between thresholds for sentences for crack and powder cocaine offenses. We are one among many circuit courts that have thoroughly vetted this issue, and we have little to add to the discussions of others. As will be seen below, we side with those courts that have denied retroactive application.
The dissent by Judge Stewart ends this way:
The will of Congress, as expressed in the Fair Sentencing Act’s substance, preamble, and title, will be disregarded by the courts’ continued imposition of severe penalties which Congress has explicitly determined to be unfair. Accordingly, I agree with a number of our sister circuits that the provisions of the Fair Sentencing Act apply to all federal cocaine offenders sentenced after the statute’s enactment, regardless of whether the underlying offense conduct occurred prior to the Act’s enactment. See United States v. Douglas, 644 F.3d 39 (1st Cir. 2011); Rojas, 645 F.3d 1234 (11th Cir. 2011); United States v. Dixon, 648 F.3d 195 (3d Cir. 2011).
The majority opinion would continue to impose disproportionately harsh sentences of imprisonment on many crack cocaine offenders, despite Congress’s clear and obvious determination that such penalties are unfair. For this reason, I respectfully dissent.