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The Crack Retroactivity Argument, a Balanced Look

The Supreme Court recently heard oral argument in the Dorsey case, in which it will resolve a 3-3 circuit split on whether the Fair Sentencing Act, known in some parts (to wit, my files) as the Crack Dealers Bonanza Act, will apply retroactively to those who committed their offenses before the Act was signed in August 2010, but were sentenced thereafter.

My view is that, if the Court is to apply Section 109, known as the Saving Statute, as Congress wrote it, and for the purpose Congress plainly intended, retroactive application will be denied.

Nonetheless, on the we-report-you-decide theory, I want to present a thorough and full informed assessment written by my good friend, Rachel Paulose, formerly US Attorney for the District of Minnesota and a distinguished graduate of Yale Law School.  Rachel's take is a must-read for those particularly interested in this case.  I particularly took note of her concluding paragraphs about what the decision may mean for the future of retroactivity analysis:

The courts and Congress alike will use the Court's decision in this case as a guide in determining the retroactivity of future ameliorative legislation. The government has acknowledged the FSA contains no explicit directive to impose its more lenient penalties retroactively. The interpretative question in this case, and for others to come, is how greatly a court must strain to find implicit support for retroactive application of an ameliorative statute.

If the Court reads any of the possible indicia of implicit support for retroactive application of the FSA § 8, § 10, the legislative history, or public policy as grounds to interpret the FSA as petitioners suggest, future courts will likely be more amenable to finding implicit support for retroactivity in the legislative history of ameliorative legislation. Conversely, if the Court affirms the Seventh Circuit decision, it will set an expectation of clearly expressed intent for both Congress to articulate in drafting and courts to consider in interpreting ameliorative statutes.

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