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June 14, 2013

Sixth Circuit calls for briefing on Eighth Amendment in Blewett crack sentencing retroactivity case

In this post a month ago, I first reported that a majorty of a Sixth Circuit panel in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here), used equal protection principles to justify giving the new crack statutory sentencings levels of the Fair Sentencing Act retroactive effect.  In that post, I noted that was unsure that a "Fifth Amendment equal protection theory provides a strong constitutional foundation" for Blewett, but I also suggested, "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."  In turn, I was not at all surprised when the government, as reported here, assailed the majority opinion in Blewett when seeking en banc review with the full Sixth Circuit a couple of weeks ago.

I am not quite pleased and excited to learn that the Sixth Circuit now seems interested in the Eighth Amendment as I am in Blewett, as evidenced by the text of a letter sent yesterday to counsel in Blewett

RE: Case Nos. 12-5226/5582

USA v. Cornelius D. Blewett and Jarreous J. Blewitt

Dear Counsel:

In connection with the prosecution’s Petition for Rehearing En Banc, the United States should submit a brief of not more than fifteen (15) pages by June 28, 2013, addressing whether the Blewetts’ punishment in this case based on a 100-to-1 ratio of crack to powder cocaine is constitutionally disproportionate in violation of the Eighth Amendment’s Cruel and Unusual Punishments Clause.  See Solem v. Helm, 463 U.S. 277, 290 (1983) (striking down imposition of sentence of life without parole for passing a worthless check because “a criminal sentence must be proportionate to the crime for which the defendant has been convicted”).  The Blewetts should also submit a brief of not more than thirty (30) pages in response to the Petition for Rehearing En Banc filed by the United States by June 28, 2013, that includes both their response to the Petition for Rehearing and their argument concerning the Eighth Amendment issue stated above.

Download Blewett Letter

I had been assuming the Sixth Circuit was going to grant en banc review in Blewett, and I had been gearing up to author an amicus brief on Eighth Amendment issues once that proceeding was set up and a briefing schedule set. And while I am now so very pleased to discover that the Sixth Circuit has ordered the parties to brief Eighth Amendment issues as it considers the government's en banc petition, I am now uncertain as to whether I can and should try to file my friendly thoughts on this topic with the Sixth Circuit later this month. Thoughts, dear readers?

Related posts on Blewett:

June 14, 2013 at 02:08 PM | Permalink


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Doug --

It's obvious they're going to grant rehearing en banc. So if I were you, I would hold my fire until they order the rehearing, then file a brief on the merits.

Now as to the outcome: I'll bet you 10-to-1 here and now that the sentence will not be thrown out on either Equal Protection or Cruel and Unusual grounds.

If you win, I'll contribute $100 to a scholarship fund for academically gifted Moritz College of Law students. If I win, you contribute $10 to the DEA Survivors Benefit Fund (https://www.survivorsbenefitfund.org/purpose.cfm)(which helps families of agents murdered by the Mr. Nicey drug pushers out there).

Ten-to-one! Can't beat that.

Posted by: Bill Otis | Jun 14, 2013 2:47:22 PM

It is nice to see that the Sixth Circuit will be considering whether the sentence violates the Cruel and Unusual Punishments Clause, a provision that is actually, you know, IN THE CONSTITUTION, as opposed to the "equal protection component of the Fifth Amendment," which most assuredly is not.

It is curious that the Government and the defendants must file their briefing on the Eighth Amendment issue on the same day. If I were the AUSA, I'd be a bit perturbed that I had to anticipate precisely what the defendants will argue vis-à-vis the Eighth Amendment.

Doug, would you expound a bit more on what the Eighth Amendment argument is here, or point me to a post where you do so? Is the argument that treating defendants sentenced under the old regime so much more harshly than similarly-situated defendants sentenced under the new regime amounts to "cruel and unusual" treatment of the former? If so, I'm skeptical, at least on an originalist view. I can't imagine that the framers and ratifiers of the Eighth Amendment were concerned about changes to the law that made punishments more lenient, as opposed to changes that made punishments harsher.

On my view of the Cruel and Unusual Punishments Clause, it would be interesting to know (1) how much crack cocaine the cousins Blewett possessed and (2) what was the maximum sentence they could have received (a) in Kentucky or (b) in any State. I cannot find the answers to these questions in any of the public documents available. Does anyone know?

Posted by: Michael J.Z. Mannheimer | Jun 14, 2013 9:23:11 PM

At least 50 grams, to trigger the old 10 year MM.

Posted by: Jay | Jun 14, 2013 10:29:17 PM

Bill, I am pretty sure I accepted your bet in a prior comment thread, and I am eager now to double it in light of this briefing request. Thanks.

Posted by: Doug B. | Jun 15, 2013 11:31:12 AM

Doug --

I must be getting old, or I'd remember if we have a bet. Oh well.

In light of the fact that no circuit ever held the old ratio to be an Eighth Amendment violation (although the challenge was raised dozens if not hundreds of times); and that I have never heard of a ten year sentence for selling (that's selling, not possessing) crack (that's crack, not pot) being found cruel and unusual in either state or federal jurisdictions, I like my chances in this bet.

I note that the panel majority steered clear of that theory, even as an alternative holding.

I also note that the court will ultimately have to address, not whether the RATIO is acceptable, but whether the SENTENCE is. Ten years for dealing a hard drug might be considered harsh, but UNCONSTITUTIONALLY harsh?

That's more of a stretch than is going to, or should, get done. The Survivors Benefit Fund appreciates your support!

Posted by: Bill Otis | Jun 15, 2013 11:56:55 AM

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