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March 12, 2011

Seventh Circuit rejects FSA's application to defendants sentenced after it changed crack statutes

While I was checking out lots of culture and humanity in Las Vegas yesterday (explanation here), the Seventh Circuit issued an important new opinion concerning the application of the Fair Sentencing Act to pipeline cases in US v. Fisher, No. 10-2352 (7th Cir. March 11, 2011) (available here).  What makes Fishersignificant is that the panel expressly considers and rejects a defendant's claims that there are unique reasons for applying the FSA's new crack sentencing provisions to those initially sentenced after the FSA became law.  Here are key passages from the opinion:

Debate surrounding the crack cocaine sentencing scheme and the infamous “100:1 ratio” has been raging for years, and there is strong rhetoric to be found on either side.  The FSA is compromise legislation and must be viewed as such.  Given the long-standing debate surrounding, and high-level congressional awareness of, this issue, we hesitate to read in by implication anything not obvious in the text of the FSA.  We believe that if Congress wanted the FSA or the guideline amendment s to apply to not-yet-sentenced defendant s convicted on pre-FSA conduct, it would have at least dropped a hint to that effect somewhere in the text of the FSA, perhaps in its charge to the Sentencing Commission.  In other words, if Congress wanted retroactive application of the FSA, it would have said so.

Given the absence of any direct statement or necessary implication to the contrary, we reaffirm our finding that the FSA does not apply retroactively, and further find that the relevant date for a determination of retroactivity is the date of the unde rlying criminal conduct , not the date of sentencing.

We have sympathy for the two defendants here , who lost on a temporal roll of the cosmic dice and we re sentenced under a structure which has now been recognized as unfair. However, “[p]unishment for federal crimes is a matter for Congress, subject to judicial veto only when the legislative judgment oversteps constitutional bounds.”  Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 664 (1974).

As regular readers know, I think this outcome is wrong as a matter of statutory interpretation, in part because I believe statutory construction cannons like the rule of lenity and constitutional doubt provide a basis for reaching the opposite conclusion than the one reached by the Seventh Circuit. Nevertheless, I fear that a number of circuit will end up ruling like the Seventh Circuit here even though there has been a deep split in the district courts on this precise issue.

Some posts on this FSA issue:

March 12, 2011 at 11:55 AM | Permalink


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The opinion relating to Mr. Dorsey was hastily decided, unpersuasive, disingenuous, and simply wrong.

First, the court took a mere 3 weeks and 3 days to decide this important and complex issue that has divided district courts. This smacks of a panel that had made up its mind to follow its earlier unthoughtful dicta (which itself was made in haste) and to ignore the arguments actually made by defense counsel.

Second, Supreme Court case law is very clear that an express statement is NOT required to override a general savings clause. What is required is either an "express," "necessary" or "fair" implication of the later enacted legislation. Although paying lip service to the "necessary implication" part of such precedent, the panel then proceeds to, in essence, require an express or obvious statement. Slip at 6.

Third, it was disingenuous for the panel to weigh heavily that the FSA was "compromise legislation." What it omitted is that everyone agreed 1:1 had to go, and had to go immediately. The "compromise" was only needed on its replacement.

Fourth, Congress did "drop a hint" on its legislative intent: it wanted 1:1 to go as soon as possible and it wanted 1:1 to stop being applied at all pending sentences. On this score, the Court says: "We believe that if Congress wanted the FSA or the guideline amendments to apply to not-yet-sentenced defendants convicted on pre-FSA conduct, it would have at least dropped a hint to that effect somewhere in the text of the FSA, perhaps in its charge to the Sentencing Commission." Well, that's EXACTLY what the Congress DID DO in telling the Commission to implement emergency amendments, which would apply at all pending sentences via 18 USC 3553(a)(4)(ii).

Fifth and finally, the panel states (in a dismissive and pejorative manner?) that Dorsey's arguments are "rather creative[]." This is more evidence, IMO, that the panel wrote off the argument before it even heard it, at the cost of an erroneous opinion. Dorsey's argument is not creative. It's the correct application of the law.

Posted by: DEJ | Mar 12, 2011 5:16:08 PM

More mindlessly deferential posturing from a judiciary that increasingly comes up short as a co-equal branch.

Dorsey's and lots of other similarly situated families will suffer needlessly because the Seventh Circuit opted to play Simon Says instead of just doing the right thing.

Posted by: John K | Mar 13, 2011 9:30:35 AM

John K,

Sorry, the court was exactly right when it stated that Congress has the power to set whatever punishment it likes for any offense, so long as that punishment does not rise to the level of a constitutional violation.

Congress likely could, for instance, mandate use of a particularized random sentence generator so that we got preguidelines sentencing, just without the judge's input.

Blame the branch that deserves it. When Congress passes unfair or stupid laws you should not expect the judiciary to fix it for you except in extreme cases. The FSA is not such an extreme case.

Posted by: Soronel Haetir | Mar 13, 2011 10:36:42 AM

Correction in my post. Where I said 1:1, I meant to say 100:1.

Posted by: DEJ | Mar 14, 2011 10:17:46 AM

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