As I discussed in this post, the Seventh Circuit earlier this year rejected retroactivity for the Fair Sentencing Act of 2010, which softened the mandatory minimum penalties for crack cocaine offenses. In the Seventh Circuit’s view, any crack offenses committed prior to August 3, 2010, when the FSA was signed into law, must still be sentenced under the harsh pre-FSA system. Given the lag time between the commission of an offense and the conviction and sentencing of the offender, district judges in the Seventh Circuit are even now probably still imposing sentences that Congress has declared to be unfair.
The Seventh Circuit’s position followed that of the Department of Justice. However, since the initial retroactivity ruling, DOJ has changed its position and now supports partial retroactivity. Additionally, three other circuits have since rejected the Seventh Circuit’s position. In light of these developments, one of the Seventh Circuit judges proposed that the initial ruling be reconsidered en banc. Last week, however, the court announced that the initial ruling would stand.
Remarkably, the court was split 5-5, just barely short of the majority required for rehearing. One wonders how the late Judge Evans would have voted if he had lived a little while longer. To be sure, he was part of the panel that initially rejected retroactivity, but both of the other members of the panel switched sides and supported rehearing. (I can’t recall ever seeing such a switch by multiple panel members in connection with a rehearing decision — it is perhaps an indication of how important DOJ’s switch was in the minds of some of the judges.)
Judge Easterbrook wrote an opinion opposing rehearing, while Judge Williams wrote the principal opinion for rehearing. United States v. Holcomb (No. 11-1558). These are both remarkably lucid, cogent opinions. They effectively present quite different approaches to statutory interpretation and touch on some deep jurisprudential questions. This would make a very nice teaching case in a statutory interpretation class.
The general rule is against retroactivity for a new statute repealing penalties, although Congress is free to override the general rule. As to the FSA, the Williams position is basically this: in the statute, Congress made clear that the Sentencing Commission should move as quickly as possible to reduce crack penalties in the sentencing guidelines, with the understanding that the reduced guidelines penalties would apply to everyone sentenced after the new guidelines took effect (Nov. 1, 2010). Why, Williams asked, would Congress want the new guidelines sentences to be applied as quickly as possible to all new sentencings, but not want the same prompt implementation of the new statutory sentences? Retroactivity for both types of sentence reductions is the only way to make sense of Congress’s intentions.
Ours is not to question why, responded Easterbrook. For all we know, what seems an arbitrary distinction between retroactivity for guidelines changes and retroactivity for statutory changes was part of a backroom deal that was necessary to secure the FSA’s passage. Bringing principled coherence to the law lies beyond the judicial role in interpreting statutes. Arbitrary though the result may be, nothing in the FSA provides a sufficiently clear signal that Congress wanted retroactivity for the changes in the statutory penalties.