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May 17, 2013

On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences

With 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  The Fair Sentencing Act repealed portions of the Anti-Drug Abuse Act of 1986 that instituted a 100-to-1 ratio between crack and powder cocaine, treating one gram of crack as equivalent to 100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 at 01:28 PM | Permalink


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The hundreds (thousands?) of re-sentencings that will be required by this opinion could keep dozens of lawyers busy for the rest of the year!

Posted by: Jim Gormley | May 17, 2013 2:11:04 PM

Jim Gormley --

It will only keep those lawyers busy until the action starts for rehearing en banc. A timely petition stays the mandate, and the granting of the petition vacates the judgment.

I would estimate that the chances the government will not file for rehearing en banc at approximately zero. I would estimate the chances that the petition will be granted at 90%.

Anyone wanna bet on whether this one survives?

Posted by: Bill Otis | May 17, 2013 2:38:16 PM


You overstate the concern.

First, the courts have already experienced TWO rounds of sentence reductions for those convicted of crack offenses (i.e. after Guideline Amendments 706 and 750). Both times went off without a hitch and without a stress on judicial or attorney resources. You're statement, therefore, is simply not supported by past experience.

Second, the Sixth Circuit's holding, if implemented, would require far less 3582(c)(2) hearings that those first two rounds of crack-sentence reductions. The holding only implicates: A) crack offenders, B) who are still incarcerated, C) who were sentenced before the FSA was enacted, D) who were unable to obtain the full benefit of the FSA amendment due to application of the old mandatory-minimums. The universe of those D) defendants is much smaller than the universe of ALL crack defendants who were able to already take advantage of Guideline Amendments 706 and 750.

Quite simply, 3582(c)(2) reductions of crack offenders have been done before, and the number of 3582(c)(2) reductions necessitated by this opinion is small when compared to what has already been done.

Posted by: DEJ | May 17, 2013 3:20:38 PM

Bill Otis is right. Nobody in the federal judiciary (read: a slim majority of the Sixth Circuit judges or Supreme Court justices) cares much for disparate impact as a violation of either the 5th or 14th Amendments. But I do hope that they reject the petition to stay the order so that at least some people can get relief before the inevitable reversal.

Posted by: PDB | May 17, 2013 4:27:01 PM

PBD --

I believe that under Rule 41, a stay is automatic upon the timely filing of the petition for rehearing or rehearing en banc.

I can tell you that if I were head of appeals for that USAO, the petition would have been filed the day the opinion came down.

I might add that the dissenter was, not a Rush Limbaugh clone, but a Clinton appointee.

Posted by: Bill Otis | May 17, 2013 4:38:45 PM

The Sixth Circuit exceeded it's authority because the Fair Sentencing Act has not been made explicitly retroactive by Congress.

Posted by: Roosevelt, aka O | May 20, 2013 5:41:53 PM

Legal consultant

Posted by: Roosevelt, aka O | May 20, 2013 5:45:12 PM

This opinion presents a rather precarious and unenviable position for President Obama and Attorney General Holder. So what will they tell their U.S. Attorneys when the onslaught of motions start rolling in to circuits that have already held (on statutory construction/legislative intent grounds), that the FSA is not retroactive? Which is every federal circuit to have considered the question. With Blewett having reiterated, repeatedly, the racially discriminatory effect(no word on intent!), of the old crack laws, and the fact that this administration championed passage of the FSA in the first instance, how can the A.G. now tell his U.S. Attorneys to aggressively oppose prisoners' motions(which they do in most 3582 filings anyway), which proffer the same Blewett argument. Or will the A.G. simply direct the USAs to "stand down?"

Posted by: Legal Eagle in Ft. Lauderdale | May 20, 2013 11:02:27 PM

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