hewitt | Legal Information Services Associates LLC

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LONG CONFERENCE KICKS OFF SCOTUS OCTOBER 2024 TERM

“The summer list is where petitions go to die,” Gregory G. Garre, a solicitor general in the George W. Bush administration, told the New York Times back in 2015. While the odds of getting the Supreme Court to grant review of a case are about one in a hundred, At the long conference, the rate is roughly half of that, about 0.6%.

The Court returns to the bench on October 7th to start a new term that includes cases on transgender rights, ghost guns, flavored vapes, and securities fraud. One case generating interest is Hewitt v. United States, which seeks to reverse a 5th Circuit holding that First Step Act mandatory minimum changes cannot be applied to people sentenced before the Act was passed but whose cases were remanded for resentencing after the Act became law. Federal circuit courts are split on this question.

Last week, a bipartisan group of senators led by Majority Whip Richard Durbin (D-IL), Chairman of the Senate Judiciary Committee, filed a brief in the Hewitt case. The Senators told the Court that 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 group, including Sen Charles Grassley (R-IA), Cory Booker (D-NJ), and Mike Lee (R-UT), argued that the 5th Circuit’s “reading of Section 403 is inconsistent with Congress’ intent as reflected in its chosen text.”

The Dept of Justice has refused to argue in support of the 5th Circuit’s decision. The Supreme Court therefore has appointed Michael McGinley, a partner in the Dechert law firm, as a “friend of the court” to brief and argue in support of the judgment below, a practice that happens about once every term.