Sixth Circuit Delivers Disappointing Ruling on Retroactivity

Post Date: December 4, 2013

Judge and GavelWe have some disappointing but expected news to share: the Sixth Circuit Court of Appeals ruled yesterday that the Fair Sentencing Act (FSA) does not apply retroactively – in other words, it does not shorten sentences for federal prisoners who received mandatory minimum sentences for crack cocaine offenses before August 3, 2010. Congress can still act to make the FSA retroactive – and FAMM is urging it to do so – and the Court suggested that it should.

First, by way of background, we wrote in May when a three-judge panel of the Sixth Circuit surprised everyone by declaring that the FSA, the law that reduced the crack-powder cocaine sentencing disparity in 2010, should apply to two defendants that were sentenced five years before the Act was passed. FAMM responded to that decision, U.S. v. Blewett, by urging the Justice Department to let the decision stand.  Unfortunately, DOJ appealed, and a full panel of judges on the Sixth Circuit reconsidered the decision.

Yesterday, a divided full panel ruled that the FSA does not apply retroactively. We were disappointed but not surprised for, as we wrote in an earlier email, the three-judge panel’s earlier decision conflicted with decisions in every other court that has considered this question.

Interestingly, the majority opinion in the full panel’s decision closed as follows:

At the end of the day, this is a case about who, not what—about who has authority to lower the Blewetts’ sentences, not what should be done with that authority.  In holding that the courts lack authority to give the Blewetts a sentence reduction, we do not mean to discount the policy arguments for granting that reduction. Although the various opinions in this case draw different conclusions about the law, they all agree that Congress should think seriously about making the new minimums retroactive. Indeed, the Fair Sentencing Act, prospective though it is, dignifies much of what the Blewetts are saying as a matter of legislative reform and may well be a powerful ground for seeking relief from Congress.

We could not agree more. On December 12, the Senate Judiciary Committee will consider S. 1410, The Smarter Sentencing Act of 2013, bipartisan legislation that includes a provision to apply the FSA retroactively. FAMM strongly supports this proposal and is urging Congress to approve it. If one of your U.S. Senators is on the Senate Judiciary Committee, you can help by calling them on December 10 and asking them to vote in favor of S. 1410, the Smarter Sentencing Act.  Click here to see if you can call your Senator on December 10 to support FSA retroactivity.