The Fair Sentencing Act just got substantially less fair.
Not that this is a surprise. Recall that the FSA re-calibrated the statutory mandatory minimums to correspond to the revised crack guidelines. The reason, as Senator Patrick Leahy said, was to remedy 'one of the most notorious symbols of racial discrimination in the modern criminal justice system.'
But as Congress went about correcting -- to some degree -- this gross racial discrimination, it was silent about whether the FSA would be retroactive. If not, then fewer 'than one-half of those given excessive, racially discriminatory sentences [would be eligible] for relief'. Some 29,323 offenders appeared eligible to receive a reduced sentence if the FSA
Guideline Amendment was made retroactive.
[FSA: This long overdue legislation changed the crack cocaine guidelines from 100:1 to 18:1 (still unfair but a far sight better). Mandatory minimums changed as well: where five grams got you five years before 2010, the FSA raised this to 28 grams; 280 grams of crack was required, rather than 50, to trigger a ten-year mandatory minimum.]
For those of us watching the retroactivity issue, our focus has been on the Sixth Circuit's opinion in US v. Blewett, decided in May of this year. The Tenth Circuit had already killed the issue in US v. Lucero, but the Sixth Circuit gave hope, at least for a circuit split. Blewett held that the FSA must be retroactive, because '[p]erpetuation of such racially discriminatory sentences by federal courts is unconstitutional and therefore the sentencing guidelines must be interpreted to eliminate such a result'.
Of course, en banc was granted, and last week Blewett was blown. The FSA's new mandatory minimums do not apply to any defendant whose sentence was final before the law took effect.
BUT WAIT: the five dissents are powerful and indignant (synopsized by the Sixth Circuit's blog). One quote from Judge Nathaniel Jones: "As judges, we should no longer remain wedded to that which experience shows is neither rational nor fair."
Terribly discouraging result but still plenty of fodder here to continue the fight. Watch for the cert petition.