Only a year late, AG Holder sees light and reverses course on FSA pipeline sentencing issue

July 15, 2011

Regular readers know that, since the Fair Sentencing Act became law in August 2010, lower courts have been divided over whether defendants who committed crack offenses before the FSA was enacted but had not yet been initially sentenced should get the benefits of the FSA’s new mandatory minimum provisions. And, as I explained in this post way back in October 2010, I have been troubled and disappointed that the Justice Department had been arguing in these “pipeline” cases that defendants should continue to be sentenced under the old now repealed 100-1 crack/powder ratio if their crimes were committed before August 3, 2010.

I am now pleased to report than I need not be troubled or disappointed by DOJ’s position on this issue anymore, because today Attorney General Eric Holder has come to see the statutory sentencing light and reversed course. In a two-page memo to all federal prosecutors dated July 15, 2011 (and available for download below), AG Holder details his new view on this issue:

In light of the differing court decisions — and the serious impact on the criminal justice system of continuing to impose unfair penalties — I have reviewed our position regarding the applicability of the Fair Sentencing Act to cases sentenced on or after the date of enactment. While I continue to believe that the Savings Statute, 1 U.S.C. § 109, precludes application of the new mandatory minimums to those sentenced before the enactment of the Fair Sentencing Act, I agree with those courts that have held that Congress intended the Act not only to “restore fairness in federal cocaine sentencing policy” but to do so as expeditiously as possible and to all defendants sentenced on or after the enactment date. As a result, I have concluded that the law requires the application of the Act’s new mandatory minimum sentencing provisions to all sentencings that occur on or after August 3, 2010, regardless of when the offense conduct took place. The law draws the line at August 3, however. The new provisions do not apply to sentences imposed prior to that date, whether or not they are final. Prosecutors are directed to act consistently with these legal principles.

Download Holder FSA memo 7.15.11

Though I am pleased that AG Holder has now seen the light on this issue of statutory interpretation, I remain deeply disappointed that the Justice Department argued a contrary (and, in my view, deeply misguided) position in courts around the nation for nearly a year. Among the costs of this mistake has been a large number of sentencings based on the old law that now will need to be redone, not to mention many litigation resources expended as defense counsel and judges have been force to grapple with DOJ’s prior position. So while I celebrate DOJ now getting this right, I cannot help but express sadness that this reversal of course took so long.

Among the benefits of this change of position should be a quick end to lots of district and circuit (and possible SCOTUS) litigation over this pipeline issue. But, of course, the principal benefit of this new DOJ policy is that more defendants will now be able to benefit from the fairer sentencing terms that Congress created through its enactment of the FSA last year.

Some posts on this FSA pipeline issue: