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January 13, 2025
Justices in their usual (but still somewhat unpredicatable) roles as they consider 924(c) resentencing in Hewitt
The Supreme Court heard oral argument in Hewitt (et al.) v. U.S. to consider this formal question: "Whether the First Step Act’s sentencing reduction provisions apply to a defendant originally sentenced before the FSA’s enactment when that original sentence is judicially vacated and the defendant is resentenced to a new term of imprisonment after the FSA’s enactment." In this substack essay last week, titled "Liberty’s absence in jurisprudence and practice regarding extreme prison sentences," I lamented that the briefing in this Hewitt case was "devoted to parsing the words 'sentence' and 'imposed' and debating statutory syntax rather than engag[ing] with liberty as a fundamental value or with limits on the state’s power to punish extremely." Perhaps unsurpringly, as folks can hear/read here from the Supreme Court website, this morning's oral argument reflected the same deficiencies.
This Bloomberg Law piece reporting on the argument highlights that the Court did not readily signal where it might be headed. Here are excerpts:
US Supreme Court justices struggled with how broadly to read a federal law meant to reduce harsh criminal sentences, with one saying the case was “really close.”
The question at the heart of arguments on Monday was whether the First Step Act’s reduced mandatory minimums apply to defendants originally sentenced before the law was enacted but later had the punishment vacated, or only to those who’ve never been sentenced. The answer turns on the meaning of “imposed,” as the law applies retroactively to those who committed a crime before it came into force in 2018 but who haven’t yet been sentenced.
Justice Sonia Sotomayor said the term “imposed” is ambiguous because it can mean either a “historical act,” meaning whether a sentence was ever imposed, or a “continuing application,” meaning that a valid sentence is in place. Because of that, the court should consider the context in which the law was passed, Sotomayor said. She said it was clearly meant to help defendants who faced what Congress saw as unfair sentencing.
But Justice Brett Kavanaugh said context doesn’t resolve the case. Congress wanted to apply the reduced sentences retroactively, but there was a limit because lawmakers didn’t open it up to everyone, Kavanaugh said. “I think this is a really close case,” he said.
The case is likely to affect a small number of defendants but it will be critical for those to whom it applies.
Based on a (too) quick read of the transcript, I sense the defendants can reasonably expect to get four votes (Justices Sotomayor, Kagan, Gorsuch and Jackson), but it is not clear that any other Justice will provide the key fifth vote. If the rule of lenity had any real force in statutory interpretation, this ought to be a fairly easy case. But. notably, it was barely mentioned in the oral argument. It was mentioned that perhaps only a few dozen defendants will be impacted by this case; there is a lot of prison time at stake for a few, but this ruling seems unlikley to impact any other no matter who prevails.
January 13, 2025 at 04:19 PM | Permalink