Where are concerns for liberty and lenity and broader constitutional values in Hewitt?

Because I believe the Supreme Court reached the right result in Hewitt this morning when interpreting the reach of a sentencing provision in the First Step Act (basics here), I suppose I should be content. But upon first read, I am struck and bothered by the fact that the Hewitt opinions are chock full of wordsmithing and say nothing about liberty, lenity and broader constitutional values. I groused about such matters at the Sentencing Matters Substack in a lengthy post about the Hewitt briefing back in January, “Liberty’s absence in jurisprudence and practice regarding extreme prison sentences,” and I cannot help but continue my grumpiness in light of today’s opinions.

To begin, what the heck happened to the rule of lenity?  Justice Gorsuch has extolled the rule of lenity in a number of notable recent statutory interpretation cases (eg, WoodenPulsifer), stressing that “lenity has played an important role in realizing a distinctly American version of the rule of law.”  The issue in Hewitt may not be a “classic” rule of lenity case, but it clearly is one in which traditional tools of statutory interpretation yield no clear answer and a defendant’s liberty is at stake.  (Also, Hewitt would be an ideal setting to champion Justice Breyer’s argument that the rule of lenity ought to have special force when interpretating the reach of ambiguous mandatory minimum sentencing provisions.)

Speaking of liberty, it seems notable that this word gets not a single mention in the Hewitt opinions.  Justice Gorsuch stressed in Pulsifer that US courts “construe ambiguous penal laws with lenity because a free nation operates against a background presumption of individual liberty.”  There are decades upon decades of individual liberty at stake in Hewett, and yet that reality seemingly matters not a whit amidst all the debate over word tenses adopted by Congress in a small part of massive criminal justice reform legislation.  These opinions function to suggest there is more legislative meaning and purpose in verb choice than in how to redefine just and fair punishments in the enactment of the First Step Act.

Speaking of purposes and punishment, one sentence in the Part V of Justice Jackson’s opinion (a part only joined by Justices Sotomayor and Kagan) should not be overlooked: “Neither amicus nor the dissent can explain why Congress would have wanted sentencing judges, who are presently working to dole out proportionate plenary sentences under the new regime, to have to return to the draconian, pre-Act scheme for offenders who just happen to be facing resentencing, as opposed to first sentencing.”  This sentiment is the one that prompted my prior substack grousing, and it remains one that still moves me.  Once Congress has decided that a “better” sentencing regime require “only” stacked mandatory minimums adding up to decades in federal prison, why would it want to mandate that judges conducting resentencings follow a now-repealed regime requiring centuries in prison?  (Though I generally view the purpose of “sentence finality” to be overstated and overweighted, here there is not any “final” sentence to consider with resentencing required.) 

The fact that Justice Jackson could only get five votes for the most technocratic parts of her opinion surely helps explains why liberty and lenity and broader constitutional values find not expression in the Hewitt opinions.  But I still would have liked to have seen at least some brushmarks from an effort to paint on a broader jurisprudential canvass.