Monday, August 29, 2011

Retroactivity: Easterbrook V. Posner

Courthouse News Service reports that a "deadlocked 7th Circuit" will not revisit its decision "to bar retroactive application of new sentencing guidelines for the crack-to-powder cocaine ratio." The result is a "circuit split on the controversial issue."

Under the Fair Sentencing Act'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 (after a reduction from 100:1).  Appellants argued that they should be subject to the new guidelines since they were sentenced after the passage of the Act. But the 7th Circuit rejected that notion, holding that criminals should be punished based on the law in effect at the time when the crime was committed.

Chief Judge Frank Easterbrook argued "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."
"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."
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. 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."
But the dissenters (joined by Richard Posner) said the case was really about "whether Congress wanted everyone sentenced after the Fair Sentencing Act became law to receive a 'fair' sentence, or just some." See full story here.


George Clive Hook said...

The injudicousness and distressing analytical proclivities of the 7th Circuit, particularly such judges as Posner and Easterbrook, are exposed in Marking Time, for which see

Anonymous said...

George Edelstein replied:
Whoever thinks Judges Easterbrook and Posner are anything but two of the smartest (better: the two smartest) judges around is either full of baloney or vodka.

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