Hewitt v. United States: The Linguistics and Analysis Are Dubious. The Result Is Right.
An earlier version of § 924(c) reform legislation suggests a flawed majority opinion
This is the third in a series of essays about sentencing and corrections law cases decided by the Supreme Court during its October 2024 term.
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On December 17, 2018, Senator Richard Durbin, then-Democratic Whip and Ranking Member of the Senate Judiciary Committee, took to the floor of the Senate to roll out a revised version of sentencing and corrections legislation he had been working on with his colleagues. The new bill was titled the First Step Act, and the Senate would pass it the next day. A few days later, President Trump would sign it into law.
The legislation was a long time coming. It was the product of intense negotiations among House and Senate Judiciary Committee leaders, which included Senators Grassley, Cornyn, Durbin and Leahy and Congressmen Doug Collins (now the Secretary of Veterans Affairs) and Hakeem Jeffries (now the Minority Leader of the House), and the White House. The Justice Department wasn’t much involved, as Attorney General Jeff Sessions had just been fired by President Trump, in many ways making room for the reform legislation Sessions had opposed so vigorously for his nearly two years as AG.
The First Step Act was a blend of different bills introduced long before; sentencing reform legislation championed primarily by Senators Durbin, Grassley, and Leahy, and corrections legislation Senator Cornyn and Congressmen Collins and Jeffries had spearheaded in their respective chambers. The compromise cut back on many of the sentencing reforms Durbin had been fighting for for years.
Durbin’s Senate floor speech included this –
Some are going to suggest that the underlying bill doesn’t go far enough to unwind the harsh mandatory sentencing that I mentioned earlier. I agree. But that is the nature of legislation. It is the nature of compromise. It is what the Senate is all about.
I was very familiar with the Durbin/Grassley sentencing legislation; it was first introduced in 2015, during the Obama Administration, as the Sentencing Reform and Corrections Act. I was serving then as Attorney General Loretta Lynch’s representative to the U.S. Sentencing Commission and worked closely with Deputy Attorney General Sally Yates and her office and with Judiciary Committee staff on the bill’s sentencing provisions.
One of those provisions from the 2015 bill would have amended 18 U.S.C. § 924(c), the statute that provides long mandatory minimum sentences for offenders who use or possess firearms during a crime of violence or drug trafficking crime. It would have reduced the mandatory minimum of 25 years’ imprisonment — that then applied to second and subsequent violations of § 924(c) — to five years, if the violations were part of a single criminal prosecution.
The 25-year mandatory minimum had been the subject of sustained criticism from the Judiciary, academics, advocates, and many others. In United States v. Holloway, 68 F. Supp. 3d 310, 312 (EDNY 2014), for example, Judge John Gleeson, later a member of the U.S. Sentencing Commission, said the law “produce[d] sentences that would be laughable if only there weren’t real people on the receiving end of them.” Gleeson would later leave the bench and go on to create the Holloway Project, a litigation initiative to rectify many of those extraordinary long sentences.
As you might expect of any reform of an unjustly long mandatory minimum penalty, Senators Durbin and Grassley wanted to apply their § 924(c) reform retroactively. And so, the Sentencing Reform and Corrections Act of 2015 included this legislative language to accompany the penalty reduction –
(b) Applicability To Pending and Past Cases.—
(1) PENDING CASES.—This section, and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.
(2) PAST CASES.—
(A) IN GENERAL.—In the case of a defendant who, before the date of enactment of this Act, was convicted of an offense for which the penalty is amended by this section and was sentenced to a term of imprisonment for the offense, the sentencing court may, on motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, upon prior notice to the Government, reduce the term of imprisonment for the offense, after considering the factors set forth in section 3553(a) of title 18, United States Code, the nature and seriousness of the danger to any person, the community, or any crime victims, and the post-sentencing conduct of the defendant, if such a reduction is consistent with this section and the amendments made by this section. Any proceeding under this paragraph shall be subject to section 3771 of title 18, United States Code (the Crime Victims' Rights Act).
(B) REQUIREMENT.—For each motion filed under subparagraph (A), the Government shall conduct a particularized inquiry of the facts and circumstances of the original sentencing of the defendant in order to assess whether a reduction in sentence would be consistent with this section and the amendments made by this section.
The idea was that the reform itself — subsection (a) (not reprinted above) — would apply the reduced penalties to all § 924(c) offenses committed after the bill’s enactment date; subsection (b)(1) would apply the new penalties to all § 924(c) offenses committed before the enactment date but for which sentences had not yet been imposed; and subsection (b)(2) would apply the penalties to all cases that included § 924(c) offenses for which sentences had been imposed before the enactment date, including cases on direct appeal, cases on habeas review, and cases that were final. Anyone ever convicted of two or more § 924(c) offenses would thus be covered.
Of course, nothing seems to divide people of good will like whether to apply a law that reduces a criminal penalty retroactively. In Retroactivity and Other Second Looks, we pointed out that the issue that most clearly and sharply divides the current U.S. Sentencing Commission, is whether to apply retroactively guideline amendments that lower a sentencing range. For three straight amendment years, commissioners have publicly disagreed with one another on retroactivity and whether even to have Commission staff prepare a retroactivity analysis of amendments that lower a sentencing range.
But it's not just the Sentencing Commission. Retroactivity divides Congress, the courts, and even the Executive Branch. In December 2018, when Senators Durbin and Grassley were negotiating what would become the First Step Act, they faced strong opposition from many quarters to their sentencing reforms, but especially to the application of those reforms retroactively. The legislation also included the retroactive application of the Fair Sentencing Act — the law signed by President Obama that reduced the sentencing disparity between crack and powder cocaine offenses. That provision was the Senators’ first priority, and as a result, retroactivity of § 924(c) reform was jettisoned in the negotiations and never appeared in the First Step Act. And the mechanics of the removal were simple: the negotiators just deleted subsection (b)(2) from the provision that had been part of the Sentencing and Corrections Reform Act of 2015.
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At the time the First Step Act was signed into law by President Trump in 2018, Tony Hewitt had been in federal prison for ten years. In 2008, he and his fellow “Scarecrow Bandits” committed a string of armed bank robberies in Texas. They were caught and charged with conspiracy, bank robbery, and 14 counts of using or carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). Hewitt was eventually sentenced to 355 years in prison (not a typo). When the First Step Act was signed into law, Hewitt’s sentence was final. Senators Durbin and Grassley wanted his sentence to be reduced anyway, but the provision that would have authorized it had been removed from the Act.
A year later, in 2019, the Supreme Court decided U.S. v. Davis, 588 U.S. 445, 448 (2019), holding that part of § 924(c) was unconstitutional. It led to some — but not all — of Hewitt’s 14 § 924(c) convictions getting set aside. Hewitt’s entire sentence was vacated, and a new sentencing on the remaining counts took place. As you might imagine, Hewitt asked the district court to apply the post-First Step Act reduced mandatory minimums at his resentencing. The district court said “no,” because the language of the First Step Act relating to the applicability of the § 924(c) reforms to pending cases suggested to the court that the revised penalties were not to be applied to those who had already been sentenced. The Fifth Circuit agreed, and the case ended up at the Supreme Court, and it was decided a few weeks ago.
For what it’s worth, if I were on the Supreme Court, I would have sided with Hewitt and the bare majority of the justices. First off, I think a sentence of decades in prison, rather than a hundred years in prison, for a serial bank robber who does not kill or maim — is more just and more consistent with the Eighth Amendment’s prohibition on cruel and unusual punishments. But of course, that’s not the way Supreme Court sentencing decisions are made these days. Under the more sterile, textualist, originalist-based decision making that is now the norm and aesthetic of the Court, here is how I would have written the opinion:
Congress gets to decide whether to apply a reduced penalty retroactively [almost everyone seems to agree on this];
The specific words Congress used in the First Step Act to spell out the extent of retroactive application — contained in § 403(b) — are hopelessly ambiguous as applied to Hewitt [I conclude this from the empirical fact that the Supreme Court, the circuit courts of appeals, and the district courts were all sharply divided about what the text means. If that’s not ambiguity, I don’t know what is];
The principles underlying the Rule of Lenity – “Under our rule of law, punishments should never by products of judicial conjecture,” Wooden v. United States, 595 U.S. 360, 397 (2022) (Gorsuch, J., concurring) — favor resolving the ambiguity in favor of Hewitt. This, notwithstanding the Federal Saving Statute, 1 U.S.C. § 109, that a law that reduces a criminal penalty shall be applied prospectively only unless Congress “expressly” provides otherwise. Congress clearly expressed something about retroactivity; its parameters are just ambiguous.
The interests of justice — including the lack of finality or litigation cost concerns for Hewitt or anyone else in his particular shoes — also point in the direction favoring Hewitt.
Justice Jackson, in her opinion for the Court in Hewitt, didn’t follow this line of thinking. Rather, she ventured into a mind-numbingly technical inquiry around the linguistics of § 403(b). I strongly suspect this was the only way she could get the Chief Justice and Justice Gorsuch to sign on to the core of her opinion (the two would not join the part of Jackson’s opinion that spoke even tangentially of justice). But I think she got the linguistics and overall analysis wrong, in part because I think she missed an important piece of the legislative history.
Remember, the Act said this about “pending cases” –
This section, and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.
Justice Jackson relied on the fact that Congress used the present-perfect tense in defining pending cases. She reminded us that the present-perfect tense can refer to either “(1) ‘an act, state, or condition that is now completed’ or (2) ‘a past action that comes up to and touches the present.’” Jackson concluded that “when used in either sense, the tense simultaneously ‘involves reference to both past and present.’” From there, she concludes that the present-perfect tense used in the Act means that Congress meant that the “event in question” — the prior sentence — “continues to be true or valid.”
I’m not sure that’s right. The sentence, “Justice Jackson has lived in Florida,” uses the present-perfect tense, but doesn’t necessarily mean that she still lives there. In fact, she doesn’t. She lived in Florida, but not anymore. Justice Jackson also summarily discards the last clause of § 403(b) concerning the date of enactment, because she says that the present-perfect tense by definition focuses on the present.
But whatever you think of Justice Jackson’s linguistics, all of it ignores the legislative history leading up to the First Step Act’s enactment described above. Neither the majority opinion nor the dissent mentions it, and I can’t find any briefing that does either. But it seems that it’s rather important to the analysis. The “pending cases” provision of the First Step Act uses precisely the same language contained in the Sentencing and Corrections Reform Act of 2015. And the retroactivity provision from that Act that was ultimately deleted would have applied to cases in which a defendant “was sentenced to a term of imprisonment for the offense” before the date of enactment. The clause uses the past tense — “was sentenced” — not the past- or present-perfect (had or has been sentenced). It clearly was intended to cover a case like Hewitt’s (which was on appeal on the date of enactment). The deletion of the section seems to have considerable significance to the analysis of what ultimately was enacted.
In their amicus brief to the Court, Senators Durbin, Grassley, Booker, and Lee state that in writing § 403(b), “Congress chose its words carefully.” They suggest that in drafting the provision, Congress used the present-perfect tense in the verb-phrase “has not been imposed” to specify that the reduced penalty would apply to any sentence that was not “now completed or continues up to the present.” The history of what led to the elimination of the retroactivity provision of the Sentencing and Corrections Act of 2015 and what was ultimately left in § 403(b) of the First Step Act belies that assertion.
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On the last day of the Supreme Court’s term, the Court ruled, in Trump v. Casa Inc., that district court orders that enjoin illegal conduct beyond the parties in the case “likely exceed the equitable authority that Congress has given the federal courts.” In her dissent from the decision, Justice Jackson stated:
To hear the majority tell it, this suit raises a mind-numbingly technical query: Are universal injunctions “sufficiently ‘analogous’ to the relief issued ‘by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act’” to fall within the equitable authority Congress granted federal courts in the Judiciary Act of 1789? Ante, at 6. But that legalese is a smokescreen. It obscures a far more basic question of enormous legal and practical significance . . .
Trump, et al. v. Casa Inc., 606 U.S. ___ (2025) (Jackson, J., dissenting).
Mind-numbingly technical queries. Legalese. Smokescreens. Worlds of airy abstractions. Substance-free reverse magic-words requirements. Obscuring far more basic questions of enormous legal and practical significance. These are some of my takeaways from the opinions of the October 2024 Supreme Court term. They were part of the Court’s work not infrequently. This seems to be a Court so determined to focus — or at least appear to focus — on textualism and originalism that it often leaves unconsidered the issues most non-lawyers (and many lawyers, too) see at the heart of the cases, including whether justice is being done.
For Mr. Hewitt, the heart of the case is whether dozens or a hundred years of imprisonment is a more just sentence for a string of armed robberies and consistent, too, with the law as amended by the First Step Act. I think the Court got to the right result in Hewitt. I just think it did so for the wrong reasons.
