09.23.24

Durbin, Bipartisan Group Of Senators Urge Supreme Court To Maintain Strength Of Landmark Criminal Justice Reform Provision in HEWITT V. U.S.

In an amicus brief, the Senators encourage the justices to reject a Fifth Circuit interpretation that narrows the scope of a First Step Act provision reducing the length of mandatory minimums and modifying minimum sentencing enhancements

WASHINGTON – U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, led fellow Senate Judiciary Committee colleagues U.S. Senators Chuck Grassley (R-IA), Cory Booker (D-NJ), and Mike Lee (R-UT) in submitting an amicus brief to the Supreme Court in Hewitt v. United States. The brief deals with the Senators’ landmark 2018 bipartisan criminal justice reform legislation—the First Step Act (FSA)—and provisions reducing the length of mandatory minimums and modifying minimum sentencing enhancements.

The Supreme Court granted certiorari in Hewitt and Duffey on July 2, 2024, and consolidated the two cases, both of which arise out of the U.S. Court of Appeals for the Fifth Circuit. In the brief, the Senators encourage the Court to clarify Section 403 applies to defendants who were sentenced before the Act was passed but whose cases were vacated and remanded for resentencing after the Act was enacted. Federal circuit courts are split on this question, which could lead to radically different sentences for similarly-situated defendants.

The Senators said: “The answer, unequivocally, is yes.”

The Senators continued, writing: “In designing the First Step Act, Congress sought to ensure that individuals who committed an offense before the Act was enacted, but who were not yet subject to a sentence for that offense, would benefit from Section 403. That group, as Congress conceived of it, includes both individuals facing an initial sentencing proceeding as well as individuals facing resentencing following vacatur of a prior sentence.”

The Senators urged the Supreme Court to reject the Fifth Circuit’s faulty interpretation, writing: “There is no principled basis, much less a textual basis, on which to differentiate between defendants whose prior sentences were vacated and those being sentenced for the first time. The interpretation adopted by the Fifth Circuit, which the Executive Branch itself rejects, is flatly inconsistent with the concept of vacatur, finds no support in the First Step Act’s text, contradicts the purpose of the Act, and produces outcomes that undermine the fairness and legitimacy of the criminal justice system. This reading of Section 403 is inconsistent with Congress’ intent as reflected in its chosen text.”

Click here for the Senators’ full amicus brief.

Championed by Durbin, Grassley, Booker, and Lee, the First Step Act was signed into law in 2018 and serves as a beacon for “smart on crime” policies. The law makes the Fair Sentencing Act’s reforms retroactive, as well as:

  • Requires the Department of Justice to develop a risk and needs assessment system to assess the recidivism risk of all prisoners, place them in programs and activities to reduce risk, and permit early transition into prerelease custody based on earned time credits;
  • Reduces mandatory minimum sentences for some drug trafficking offenses;
  • Expands the safety valve to allow judges to sentence low-level, nonviolent drug offenders with minor criminal histories to less than the required mandatory minimums; and
  • Authorizes incarcerated individuals to file compassionate release motions in federal court.

As noted at a hearing earlier this year, these reforms have been tremendously successful. Of the 44,671 incarcerated adults released under First Step Act reforms through January 2024, only 9.7 percent have been arrested for new crimes. By comparison, the overall Bureau of Prisons recidivism rate currently stands at around 43 percent. To date, there have been 4,146 retroactive sentence reductions and 4,756 compassionate release motions granted.

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