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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.

April 13, 2012 at 12:02 PM | Permalink


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Contrary to Mr. Deniston, there is no lurking Constitutional issue. No circuit court has held that the disparate treatment of crack and powder violates the EPC in the many, many years this dispute has been kicking around.

In addition, it might be useful to actually look at the language of what is glancingly referred to as "an 1871 statute." It's called the Saving Statute, and its effect is to save the penalties applicable to offenders THAT EXISTED AT THE TIME OF THEIR OFFENSE. The exact language is, "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…"

The FSA repealed the old, harsher crack penalties but did not expressly provide -- or provide at all -- that the new, lighter penalties be applied to any and all sentencings undertaken after the FSA's effective date.

Of course this whole issue could have been avoided if Congress, at any time in the almost two years since the FSA was signed, had simply adopted a single sentence saying: "The penalties provided in the FSA shall be imposed on all those sentenced after its effective date."

Has it done that?


I think SCOTUS will be able to figure it out.

Posted by: Bill Otis | Apr 13, 2012 12:34:16 PM

intersting bill!

"In addition, it might be useful to actually look at the language of what is glancingly referred to as "an 1871 statute." It's called the Saving Statute, and its effect is to save the penalties applicable to offenders THAT EXISTED AT THE TIME OF THEIR OFFENSE. The exact language is, "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…"

I did not know about this one! it would seem to fly in the face of pretty much every law covering those on the megan's law regisry. That CHANGE THIER PUNISHMENT! after the fact!

Posted by: rodsmith | Apr 13, 2012 2:18:59 PM

"maybe I am misguided to let this term drive me crazy here (and readers should tell me so in the comments)"

You are misguided.

For a change in substantive criminal law, including sentencing, the critical date is the date of the crime. A retroactive increase in the maximum sentence is constitutionally forbidden by the ex post facto clause. Nobody doubts that the date of the crime is the key date for this retroactivity issue. The government can constitutionally lower the punishment ex post facto if it chooses, but this is still a retroactive change.

For procedural changes, the date of the trial is the key date. If a judgment is overturned because of a change made after the date of the trial, that is retroactive application. Griffith v. Kentucky held that new constitutional rules of criminal procedure would be applied retroactively to cases pending on direct review, but that is still retroactive application.

This is not the first time that Congress has left out retroactivity language that could have easily resolved the question. It did the same on the repeal of habeas jurisdiction for the Gitmo detainees, an issue I briefed in Hamdan v. Rumsfeld.

Reviewing the legislative history, there was no doubt that Senator Levin intended the change to be nonretroactive, Senator Kyl intended the change to be retroactive, and neither could get their intent into the statutory language. So what was the intent of Congress as a whole? Just to punt the issue to the courts, near as I can figure out.

Posted by: Kent Scheidegger | Apr 13, 2012 2:37:52 PM

Kent, have you or your organization taken a position on the legal issue? Or a position on what is good policy?

Posted by: anon | Apr 13, 2012 2:49:41 PM

First - @DB - YES. This willy nilly use of the term "retroactive" drives me bananas. In the immortal words of Inigo Montoya, I want to say to all those who employ it in this context, "You keep saying that word. I don't think it means what you think it means."

Second, I've kind of stopped following the arguments on this issue because I managed to favorably resolve all of my cases that were in this posture. So forgive me if I'm re-treading old ground with what follows...

Whether there is a constitutional dimension to the disparity is clearly a proposition about which reasonable people disagree. Not surprisingly, I come down on the EPC violation side of things, but a whole lot of folks who've made it a whole lot further in the legal profession than I are unpersuaded. I agree with Bill insofar as the constitutional argument about disparity between powder and crack is unlikely to be a factor in the court's decision.

But what of the statutory argument? Bill, you find fault with DB's "glancing" reference to "an 1871 statute." Although I'm guessing we don't come to the same conclusions about the General Saving Statute's meaning, I agree that it's the linchpin of the case. The circumstances of the passage of the General Saving Statute are, I think, particularly relevant to an understanding of its applicability to the situation at hand:

The General Saving Statute was originally enacted in 1871, a legislative reaction to the Supreme Court's decision in United States v. Tynen (11 Wall. 88 (1871)) In Tynen, the Court considered the operation of the common law practice of abatement, whereby the substitution of a new statute with a different set of penalties was held to completely extinguish a previous prosecution. Tynen was prosecuted under an 1813 law that prohibited forging citizenship documents. On July 14, 1870, after Tynen was indicted, but before he stood trial, the penalty provisions of the 1813 act were amended. The Supreme Court held that "[b]y the repeal of the [penalty provision] of the act of 1813 all criminal proceedings taken under it fell," and ordered the lower court to dismiss the indictment. That is, Tynen was not merely spared the stricter penalties of the 1813 act, he was spared prosecution ENTIRELY. This is the technical abatement that the Saving Statute was enacted to prevent. (See Hamm v. Rock Hill, 379 U.S. 306 (1964).)

It's also, I think, useful to note that prior Congresses have not relied on the General Saving Statute to ensure that reviewing courts might know their intentions. See, for example, the saving clause included in the Comprehensive Drug Abuse Prevention and Control Act of 1970, which expressly and specifically provided that prosecutions for violations occurring prior to the effective date of the act would not be affected or abated by it. Consider, also, that in the legislative debate surrounding the passage of the FSA there was at least one version of the bill put forward in the house which contained a specific saving clause very similar to that of the CDAPCA of 1970, but that saving clause was scrapped in the final bill.

Posted by: AFPD | Apr 13, 2012 2:55:39 PM

I have a different spin on the constitutional challenge that is NOT based on the 100:1 disparity in the old law, but rather based on the fact that the statutory interpretation asserted by Estrada as the amici (and Bill Otis it seems, and the feds originally, but not any more) would entail all real serious crack offenders sentenced after the FSA --- i.e., those with large quantities of crack and/or other aggravating factors --- get the benefits of the new 18:1 ratio in the new post-FSA guidelines while some/many less serious crack offenders --- i.e., those those with small quantities of crack and/or mitigating factors --- remain stuck with the burdens of the old 100:1 pre-FSA mandatory minimums.

As the briefing in Hill et all suggest, I do not think such a result was what Congress intended given that they did not specify that the MMs should stay in force in all future sentencing. But, getting to the constitutional spin, on either EP grounds or Due Process grounds, I am not sure there is even a rational basis to support a statute which functionally would provide that ONLY more serious offenders get the full benefits of a reduction in the applicable sentencing rules.

One related idea to throw into this debate --- do you think any prosecutors in Connecticut will claim that for murders committed, but not yet sentenced, when the state repeals the DP, a prosecutor can still charge/pursue/seek a sentence of death? The CT legislature seemed to be clear that its legislation was supposed to be only prospective --- but that for me still does not answer this hard "pipeline" issue.

Posted by: Doug B. | Apr 13, 2012 4:56:55 PM

Anon, no, we haven't taken a position.

Posted by: Kent Scheidegger | Apr 13, 2012 5:35:51 PM

Yes, you are justified. The word "retroactive" is such a buzz word in criminal law. It's often frowned upon and conjures images of those currently imprisoned being released. Those opposed to applying the FSA to those not-yet-sentenced know this. If that's the side you're on, it's a good tactic. But, yes, one would still be justified in calling it incorrect.

Posted by: anon | Apr 13, 2012 10:59:51 PM

Doug, the issue drives me nuts too and I have filed several motions in pipeline cases involving the substantial change in habitual felon sentencing brought about by the newly enacted Justice Reinvestment Act. I had a prosecutor tell me a month ago that she considers it "fundamentally unfair to punish defendants under the old habitual felon law rather than the drastically reduced new habitual felon law, for offenses which predate the effective date of the law but the def has not been tried yet.


Posted by: bruce cunningham | Apr 14, 2012 10:02:16 PM

I wonder how many cases are in a holding pattern for the Dorsey/Hill decision?

I have one out of the Central Dist IL that is stayed in the 7th Cir. pending SCOTUS. I'm told several dozen join mine just from the CDIL. (My client's case seems exceptional in that his offense date was before effective date, while his arrest, indictment, complaint & sentencing are after effective date, i.e. he was "on the street" when FSA became effective. FSA would knock out his mand. min. and knock 6+ years off his career offender range.)

Posted by: Mark Palmer | Apr 16, 2012 10:55:05 AM

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