Bench Memos

En Banc Sixth Circuit Rejects Crackheaded Panel Ruling

The en banc Sixth Circuit has soundly rejected the crackheaded conclusion of a divided panel that the more lenient sentences of the Fair Sentencing Act apply to crack-cocaine offenders who were sentenced before the Act’s effective date. As Judge Sutton sums it up it his majority opinion:

Consistent with a 142-year-old congressional presumption against applying reductions in criminal penalties to those already sentenced, 1 U.S.C. § 109, consistent with the views of all nine Justices and all of the litigants in Dorsey v. United States, 132 S. Ct. 2321, 2332 (2012), consistent with the decisions of every other court of appeals in the country, and consistent with dozens of our own decisions, we hold that the Act does not retroactively undo final sentences.

For a very simple case, the vote was a surprisingly close 10-7. On this very polarized court, one Clinton appointee, Ronald Lee Gilman (who dissented from the panel ruling) joined Judge Sutton’s opinion, and another, Karen Nelson Moore, concurred in the judgment while also expressing her reservations at length.

The biggest surprise is that Bush 43 appointee John M. Rogers was among the dissenters. Indeed, he wrote the lead dissent. I’m not familiar with Rogers, but I see from his bio that he was a law professor for more than two decades before joining the Sixth Circuit, so his weak dissent may be yet another warning against the perils of turning law professors into judges.

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