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.