Adding my two cents concerning application of the FSA to pending cases
As I noted in recent posts here and here, I think some courts have been a bit too quick to assert that defendants who committed crack offenses before the enactment of the Fair Sentencing Act can get no benefit from the the FSA’s provisions. Spurred on by a helpful lawyer in NYC litigating this issue for a defendant awaiting initial sentencing in a multi-defendant case, I put together a letter with my thoughts about applying the FSA’s provisions to cases in the pipeline that have not yet been sentenced.
The letter, which can be downloaded below, sets forth my view that Congress intended the new sentencing terms of the FSA to apply to pending cases as soon as possible. The letter gets started this way:
Counsel for some defendants in the above-captioned case have informed me that your Honor is currently considering motions to apply the terms of the Fair Sentencing Act of 2010 (hereafter “FSA”), which amended the penalty provisions of 21 U.S.C. § 841, during the upcoming sentencing of pending cases in which the offense behavior took place before the FSA became law. Taking on the role of a de facto amicus curae, I write to supplement some of the arguments set forth by counsel in this case. Because I believe that principles of statutory construction support application of the provisions of FSA to all pending cases, I wanted to write to suggest a resolution to these motions that would enable this Court to avoid wading too deeply into the many complicated constitutional and policy issues that might arise if this Court were to refuse to apply the amended penalty provisions of 21 U.S.C. § 841 in a case of this nature.
As the motion papers already highlight, there are serious constitutional arguments and strong policy considerations supporting the application of the FSA to all criminal cases not yet final. But, even more fundamentally, basic principles of statutory interpretation as well as venerated canons of construction suggest the FSA is to be applied to any and all cases such as this one in which an initial sentencing has not yet taken place. As detailed below, I believe Congress revealed its intent for the FSA to apply to pending cases through key provisions of the statute itself and through comments by key legislators in the Congressional Record. Moreover, even if this Court finds congressional intent to be unclear, both the rule of lenity and the constitutional doubt canon of statutory construction call for the FSA to be so applied.