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January 19, 2022

Frustrating (but still fascinating) SCOTUS argument on crack offense resentencing under FIRST STEP Act

The Supreme Court heard oral argument today in Concepcion v. USNo. 20-1650, to address this technical question as presented by the Petitioners: "Whether, when deciding if it should 'impose a reduced sentence' on an individual under section 404(b) of the First Step Act of 2018, 21 U.S.C. § 841 note, a district court must or may consider intervening legal and factual developments."  Perhaps in part because the federal government agrees that a district court "may" consider new facts at crack offense resentencing, it seems likely that the defendant here will secure some form of relief.  But, perhaps in part because of the federal government's position, a number of Justices seemed quite eager to talk up the virtues of limiting the scope of a crack offense resentencing.  And because everyone talked at great length about sentencing laws and practices — save Justices Barrett and Thomas, who were mostly quiet — all federal sentencing fans will want to make time to listen to (or read) the oral argument available here.

Many aspects of the argument were fascinating, included Justice Breyer's persistent eagerness to talk up the US Sentencing Commission and even USSC staff documents.  But I found the tenor and tone of the entire argument to be somewhat frustrating given the historical context of unjust crack sentencing.  The advocates and the Justices often suggested it was exceptional that Congress provided for crack resentencings, and the Assistant SG repeatedly spoke of the defendant's original "lawful sentence."  Nobody really mentioned at all the exceptionally unjust and unfair original 100-1 crack sentencing ratio and how that injustice was overwhelmingly acknowledged by Congress through the Fair Sentencing Act of 2010 and finally fixed retroactively  though the FIRST STEP Act of 2018.  Put more directly, Congress has twice made quite clear that it believes that crack defendants sentenced before 2010 received unjust and wrong sentences, even if those sentences may have been technically "lawful."  

In other words, what is fundamentally at issue in Concepcion is whether a group of defendants (almost all of whom are persons of color) who have been serving unjust and wrong federal sentences for more than a decade should be limited in how they can argue for now getting a more just and rightful sentence.  Most fundamentally, these crack defendants want to argue that they should also benefit at resentencing from other improvements in the guidelines apart from crack reforms.  But the Assistant AG expressed concern that allowing arguments for a more just and rightful sentence based on new guidelines could lead to an "unjustified windfall for a select subset of crack cocaine offenders."  But, as I see it, understanding how these defendants have been subject to unjust sentencing for many years, it is functionally impossible for them to really get any "windfall."  Indeed, allowing current new and improved law to inform a new and improved sentence for these crack defendants is the exact opposite of "unjustified windfall."  It is what all should recognize as justice, years late, but hopefully not short.

January 19, 2022 at 07:12 PM | Permalink


I sometimes wonder how some Federal prosecutors can live with themselves and sleep at night, given the outrageous arguments they sometimes make. One such argument I read about while serving my sentence involved the only real "Drug Lord" I ever met in a prison. He was a 36-year old Mexican, who had been turned over to the DEA in Belize and flown to the Southern District of New York, where he was indicted. His relevant conduct was about more than 300,000 kilos of cocaine. The Government wanted him to plead guilty and debrief, telling them everything he knew about the upper echelons of cocaine dealing in Mexico and Central America. He wouldn't agree to debrief because his entire family would have been killed. Instead, he made a blind guilty plea to the Court, without any agreement with the Government. With his 3 points down for "Acceptance of Responsibility", he got a 38 year sentence (not life, as the Government requested). It was incredible that Main DOJ in D.C. flew an attorney to New York to argue that the defendant should receive a life sentence because he would not agree to debrief. The District Judge (now a Judge on the 2nd Circuit Court of Appeals) shook his head and reminded the Government that a defendant need not debrief to receive his acceptance of responsibility. Rather, all the defendant must do is make a timely guilty plea, to save the Government the trouble and expense of preparing for trial. How could that OJ lawyer have even made his argument with a straight face?

Posted by: Jim Gormley | Jan 20, 2022 10:05:57 AM

Jim Gormley --

1. When in the recent Terry case the government's lawyer (the SG, no less) confessed error in the Supreme Court -- a highly unusual move -- taking a newly-minted view of the statute it had spurned up until then, and the Court UNANIMOUSLY rejected the argument, with even Justice Sotomayor expressing her displeasure, did you similarly ask whether the government could make that argument "with a straight face"? Maybe you did, but I don't recall it. If you didn't, why not? The government's dipsy-doodle in the Supreme Court would certainly seem to be more eyebrow-raising than a mere AUSA in the trial court asking for a heightened sentence for a drug lord who declined to cooperate.

2. For however that may be, perhaps some of your consternation should be directed at criminals who would wipe out "an entire family" (as you say), and not be directed solely at the government for seeking to pressure a big league criminal with lots of information into handing over some of it. (P.S. The cartel will kill your family merely on suspicion that, at some point down the road, you MIGHT say something to the feds. These guys are not real big into standards of proof).

Posted by: Bill Otis | Jan 20, 2022 12:56:58 PM

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