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October 24, 2010

Adding my two cents concerning application of the FSA to pending cases

As I noted in recent posts here and here, I think some courts have been a bit too quick to assert that defendants who committed crack offenses before the enactment of the Fair Sentencing Act can get no benefit from the the FSA's provisions.  Spurred on by a helpful lawyer in NYC litigating this issue for a defendant awaiting initial sentencing in a multi-defendant case, I put together a letter with my thoughts about applying the FSA's provisions to cases in the pipeline that have not yet been sentenced. 

The letter, which can be downloaded below, sets forth my view that Congress intended the new sentencing terms of the FSA to apply to pending cases as soon as possible.  The letter gets started this way:

Counsel for some defendants in the above-captioned case have informed me that your Honor is currently considering motions to apply the terms of the Fair Sentencing Act of 2010 (hereafter “FSA”), which amended the penalty provisions of 21 U.S.C. § 841, during the upcoming sentencing of pending cases in which the offense behavior took place before the FSA became law.  Taking on the role of a de facto amicus curae, I write to supplement some of the arguments set forth by counsel in this case.  Because I believe that principles of statutory construction support application of the provisions of FSA to all pending cases, I wanted to write to suggest a resolution to these motions that would enable this Court to avoid wading too deeply into the many complicated constitutional and policy issues that might arise if this Court were to refuse to apply the amended penalty provisions of 21 U.S.C. § 841 in a case of this nature.

As the motion papers already highlight, there are serious constitutional arguments and strong policy considerations supporting the application of the FSA to all criminal cases not yet final.  But, even more fundamentally, basic principles of statutory interpretation as well as venerated canons of construction suggest the FSA is to be applied to any and all cases such as this one in which an initial sentencing has not yet taken place.  As detailed below, I believe Congress revealed its intent for the FSA to apply to pending cases through key provisions of the statute itself and through comments by key legislators in the Congressional Record.  Moreover, even if this Court finds congressional intent to be unclear, both the rule of lenity and the constitutional doubt canon of statutory construction call for the FSA to be so applied.

Download FSA application letter from DAB

October 24, 2010 at 09:38 PM | Permalink


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Well reasoned legal argument. Question. Where do you get any standing to express this opinion? I am not challenging your having standing. I just want to find it. What is your justiciable interest beside an academic curiosity?

Could I send the judge a letter, claiming the crack heads across the street have dropped the value of my home, and these other crack dealers in that court deserve long prison sentences? I would have measurable damages.

Posted by: Supremacy Claus | Oct 24, 2010 11:35:14 PM

I see no reason why you cannot send such a letter, SC. Indeed, if you qualify as a "victim" you have Congress and the express terms of the CVRA granting you specific statutory rights to be involved various stages of a criminal prosecution. You will have to indicate that you were proximately harmed by an offense --- and I fear that you might consider assertions of proximate cause to be invocation of religious doctrine.

Posted by: Doug B. | Oct 25, 2010 9:12:42 AM

I'm one of the lawyers on the case in which Professor Berman's letter is being submitted. He graciously consented to our request to distribute it to any lawyer in any other case who thought it might be useful as an exhibit to their own retroactivity applications, so I encourage readers of his blog to consider using it in that way as well.

Professor Berman, would that be OK?

Posted by: Alex E. | Oct 25, 2010 9:35:25 AM

Of course, Alex E. My little effort to add to the FSA application debate can and should be spread as far and wide as serves anyone's interests. Like the Framers, I think broad distribution should be encouraged in the marketplace of ideas.

Posted by: Doug B. | Oct 25, 2010 10:23:56 AM

Thanks. I'd also suggest readers filing their own retroactivity motions borrow heavily from the excellent Federal Defender's form brief on this issue, available here: http://www.fd.org/pdf_lib/FSA%20model%20pleading%20retroactivity.pdf.

The very comprehensive briefs filed in the SDNY's Santana case, where your amicus letter has been filed, are all available through the court's PACER site as well. I can't speak for the other lawyers, but anyone who thinks it would be helpful is free to use or to quote from my own brief as they see fit. It canvasses a great deal of the helpful legislative history and can be found as entry number 298 (dated 10/8/10) on the online docket in USA v. Santana, 09 Cr. 1022 (KMK) (SDNY).

Posted by: Alex E. | Oct 25, 2010 12:28:57 PM

Better link: http://www.fd.org/pdf_lib/FSA%20model%20pleading%20retroactivity.pdf (without the period at the end).

Posted by: Alex E. | Oct 25, 2010 1:20:07 PM

Thanks for this update! It's much appreaciated!

Posted by: Peniksen Pidennys | Oct 25, 2010 3:40:48 PM

Prof. Berman,
I read with great interest your well-reasoned letter in the Santana case. Our case is in a different posture; it's on appeal in the 1st Circ. (which as you know has not ruled yet on the issue), with the defendant already having been sentenced under the old regime. To what extent do your arguments support applying FSA retroactively to those whose judgments are not final? Would you consider writing a letter of some type in our case?

Thank you for your always appreciated commentary and analysis.

Claudia (401-861-9042)

Posted by: Claudia G. | Nov 17, 2010 3:57:04 AM

As a follow up, towards the end of your letter, you write "Just as an ameliorative change in the judicial interpretation of a criminal statute is applied to all cases on direct review[...]" What do you mean by that? Isn't ameliorative effect barred by Marrero, and that's why four Circuits have ruled that no retroactivity of FSA to cases on direct appeal? I just want to be clear on your thoughts on this.

Again, thank you.

Claudia Gregoire

Posted by: Claudia G. | Nov 17, 2010 7:20:01 AM

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In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB