7th Splits From Circuits on Cocaine-Sentencing

     CHICAGO (CN) – A deadlocked 7th Circuit will not revisit its decision to bar retroactive application of new sentencing guidelines for the crack-to-powder cocaine ratio, creating a circuit split on the controversial issue.
     The court split 5-5 on whether to rehear the appeals of four convicted crack dealers sentenced under earlier, and harsher, guidelines. Though the men committed the crimes years ago, they were sentenced after President Barack Obama signed the Fair Sentencing Act of 2010 into law on Aug. 3, 2010.
     Under the FSA’s new crack-to-powder cocaine ratio, which took effect Nov. 1, 2011, the federal mandatory minimums and maximums for crack-related offenses are 18:1, reduced from 100:1. The act also includes significant reductions in the guidelines range.
     Because their sentences were issued after the FSA was passed, the appellants argued that they should be subject to the new guidelines. The 7th Circuit rejected that position, citing its precedent in United States v. Fisher, which holds that criminals should be punished based on the law in effect at the time when the crime was committed.
     “Fisher rejected the argument that the date of sentencing matters,” Chief Judge Frank Easterbrook explained.
     “Nothing depends on the sentencing date, which reflects how long it took to catch a criminal, and the state of the district judge’s calendar, rather than principles of deterrence or desert,” he added.
     Eight days after the rulings, the government prosecutor filed a Notice of Changed Position, announcing that the attorney general wanted to apply the new guidelines.
     An unnamed member of the 7th Circuit called for a vote on whether the four appeals should be reheard en banc.
     Usually there are 11 judges to vote on 7th Circuit cases, but Judge Terence Evans’ death earlier this month has left a vacancy that resulted in a total split, keeping the previous rulings intact.
     Easterbrook wrote the majority opinion, joined by Judges Joel Flaum, Michael Kanne, Diane Sykes, and John Tinder.
     “As far as I am aware, the Supreme Court has never held any change in a criminal penalty to be partially retroactive,” he wrote of the prosecutor’s desired outcome. “The choice has always been binary: retroactive or prospective.”
     The judges referenced the 1871 General Saving Statute, which makes any law that repealed a criminal statue prospective unless the new statue says otherwise. Congress never provided for retroactivity when it passed the FSA, they held.
     Easterbrook described the conflict between Congress’ apparent desire to reduce sentencing discrepancies and its decision not to apply the changes retroactively as the result of political bargaining.
     “When Congress enacts a bill, a majority agrees on its text, not on grand principles,” he wrote. “Neither side got everything it wanted in this statute, and judges disserve the legislative process by giving one side more than it secured at the bargaining table.”
     As the judges noted, applying reduced guidelines to convicts sentenced after the statue’s date of enactment would lead to potentially unjust outcomes.
     “Suppose comrades in crime distribute cocaine in mid-2009 and are caught promptly,” Easterbrook wrote. “One confesses, pleads guilty, and testifies at the trial of the other, who fights tooth and nail and falsely denies culpability. The first is sentenced on August 1, 2010, the second on September 1. How would it be ‘fair’ (or even conscionable) to give the lower sentence to the person who refused to accept responsibility for his crimes, just because by dragging out the process that person was sentenced after August 2?
     “It would be weird to conclude that, the longer it takes to issue an indictment, or the better the offender at evading capture, and hence the later the sentencing date, the lower the sentence.”
     “Only full retroactivity, or no retroactivity, treats equal criminal conduct equally,” he added.
     The dissenting judges countered by saying that “a line must be drawn somewhere.”
     “To draw the line at conduct, when Congress’s whole point was to get rid of unjust 100:1-based sentences, and to do so right away, would mean that ‘the legislative mind will be set at naught,'” Judge Ann Claire Williams wrote for the dissent, joined by Judges Richard Posner, Ilana Rovner, Diane Wood and David Hamilton.
     Easterbrook noted that there are other avenues to achieve prosecutors’ aim without overstepping the courts’ constitutional authority.
     “If the president wants to apply the lower minimum and maximum penalties to all cases, pending and closed, he has only to issue a general commutation,” Easterbrook wrote. “The pardon power permits the president to achieve retroactive lenience if he is willing to pay the political price. By contrast, the judiciary must implement compromises faithfully, even when most judges wish that the political decision had been different.”
     The dissenting judges said the majority missed the forest for the trees.
     “The only question in this case, odd as it might sound, is whether Congress wanted everyone sentenced after the Fair Sentencing Act became law to receive a ‘fair’ sentence, or just some,” Williams wrote.
     If today’s Congress intended FSA to apply retroactively, the 1871 Congress cannot prevent it from doing so through the Saving Statute, the judges determined.
     “The Supreme Court made clear over one hundred years ago: the saving statute does not bar a later law’s lower penalties from immediately taking effect if Congress wants them to,” the dissent states. “The Supreme Court explained that because the saving statute ‘only has the force of a statute, its provisions cannot justify a disregard of the will of Congress as manifested either expressly or by necessary implication in a subsequent enaction.'”
     “The language Congress chose to use … demanded of the Sentencing Commission, ‘Use the 18:1 ratio. ASAP,'” Williams added. “That meant that for sentencing judges using the new guidelines, ‘Use the 18:1 ratio. ASAP.’ The fair implication of these demands is that Congress meant ‘Use the 18:1 ratio. ASAP’ in all aspects of sentencing.”
     Posner wrote separately to discuss the disparity between pre- and post-FSA sentencing guidelines, offering what he called a “modest supplement to [Williams’] excellent opinion.”
     “If Congress were omnicompetent it would, out of an abundance of caution, have ‘expressly’ directed that sentences imposed after the new law went into effect would be subject to the guideline amendments that the new law ordained,” Posner wrote. “An omnicompetent Congress, leaving nothing to chance, would have made this express statement even though the Supreme Court has said … that courts should treat a ‘fair’ or ‘necessary’ implication in a new statute as sufficient to override the saving statute. A few judges may think that Congress is omnicompetent; more pretend to think that – what they really think being that literal interpretation of statutes is necessary to save the nation from judicial tyranny. Such questionable thinking can lead to gratuitously silly results in particular cases – these cases, for example.”
     The ruling sets up a potential circuit split, with the 1st, 3rd and 11th circuits adopting the attorney general’s sentencing recommendations.

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