Brian Tannebaum posts about a  remarkable decision from the District of Massachusetts by Judge Michael Ponsor, dealing with the always perplexing problem of what to do with defendants caught in the hiatus between a change in law and its effective date.

Antoine Watts is charged with possessing with intent to distribute five grams or more of crack cocaine. The judge in his memo questions whether the court will be compelled to impose a minimum mandatory sentence of at least five years on him, or will have the discretion to impose a lower sentence as permitted by the recently enacted Fair Sentencing Act of 2010.

Spoiler Alert:  Judge Ponsor holds that he is not obliged to impose a sentence that Congress has determined to be excessive and discriminatory, even though the law would not technically apply to the defendant in the case before him due to legal mumbo jumbo excuses, as argued by the government.

No reason for me to belabor the significance of Judge Ponsor’s decision, as Brian has already done so and you can read it and kvel over at his blog.  As urged, however, I did read the memorandum decision, and one aspect of the decision caught my eye.

A few more introductory words. The government’s contention that the General Saving Statute (“Saving Statute”), 1 U.S.C. § 109, demands this result — that is, that the Saving Statute makes perpetuation of obvious injustice a regrettable but necessary expression of respect for the law, however harsh its consequences — cannot survive a close examination of the Saving Statute itself or its legal context. The Saving Statute is simply not the straitjacket the government has tried to tailor.

Before any non-lawyer reader’s head explodes, a bit of explanation.  The Saving Statute addresses the inevitable problem of retroactivity caused by the fact that there are people in the pipeline at the time of passage of a law, but who were arrested, prosecuted and even convicted under the older version.  A new law addressing the same matter as an old law will invariably include a repeal of the old since there can’t be two conflicting laws applying to the same conduct at the same time, but that means the law for which the person in the system was convicted has since been repealed.  Then what? 

There’s where  1 U.S.C. § 109 comes in.

The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability. . . .

This constitutes the “default” position, subject to change by Congress when the “repealing Act shall so expressly provide.”  In enacting The Fair Sentencing Act of 2010, Congress did not “expressly provide.”  While the new law eliminated the mandatory minimum, Antoine Watts was convicted under the old law that still had a 5 year mandatory minimum.  Bummer.

That provides the generic, lawyerly context to the situation, but fails to address the particulars of the government’s argument.

. . . the Saving Statute makes perpetuation of obvious injustice a regrettable but necessary expression of respect for the law, however harsh its consequences . . .

This phrase may reflect the single most offensive argument ever proffered by a government.  There is no suggestion that the outcome the government proposes is not unjust.  Indeed, all concede, Congress included, that it is absolutely unjust, wrong, unfair, discriminatory.  There is universal agreement that an injustice will be done.  And that’s what our government argues for.

The rationale is that injustice is a “necessary expression of respect for the law.”  Respect, in this sentence, means adherence.  If you’re a stickler for stuff like law, the government’s argument is legally sound.  Congress could have expressly provided for its application to those in the pipeline (and we’re not going to touch further retroactivity, like the guy who was sentenced to the mandatory minimum the day before the law was enacted), but it didn’t.  Congress knows (or should know) about  1 U.S.C. § 109, could have accommodated the problem by providing for it, and didn’t.  Boo Congress. Boo President Obama. 

Then again, the prosecution didn’t have to raise the issue.  There’s a quiet detail that sometimes, the prosecution has a sound but disingenuous argument, and somebody decides not to mention it, while everybody else lets out a deep breath, winks all around, and life goes on.

And we thus return to the perpetuation of an obvious injustice.  Our government calls it regrettable.  Judge Ponsor refuses to allow himself to be compelled by the rigid rules of statutory construction to impose what everyone conceded to be an injustice.

There is a concept that doesn’t quite apply but could, called the Rule of Lenity.  Only where the law is ambiguous are the courts, according to the law, required to apply the least onerous law to the situation.  The Rule of Lenity isn’t used with great frequency, but it should be. 

Of course, there really was no ambiguity here.  Congress had the chance to address the situation differently, and decided to leave Antoine Watts blowing in the wind, perhaps the last man to be sentence to a mandatory minimum under a law repealed because it was fundamentally wrong and discriminatory.  That would have been our government’s choice.

But Judge Michael Ponsor decided that he would not be the judge to sentence that last man to an obviously unjust sentence.  Injustice is never regrettable but necessary.