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A GOLD MEDAL FOR LENITY?

Is “lenity” the word that dare not be uttered? You might think so after yesterday’s Supreme Court decision in Hewitt v. United States.

The issue seems straightforward enough. Among the many changes made by the 2018 First Step Act was a long-overdue modification of 18 USC § 924(c), the penalty statute that mandates a consecutive minimum sentence for carrying a gun during a drug trafficking crime or crime of violence. Before First Step, the initial § 924(c) offense carried a mandatory sentence of at least five years, but every subsequent § 924(c) offense was punished by a 25-year term. Lousy drafting of the statute led to courts concluding that if you sold drugs while carrying a gun on Monday, you’d get time for the drug crime and an extra five years for the gun. If you sold some more drugs the next day while still carrying the gun, you’d probably get no more time for the drugs, but you would get a mandatory 25 years on top of Monday’s five-year term for a second § 924(c) crime, an outcome known as “stacking.”

It wasn’t difficult to figure. A hard-working street corner drug dealer plying his trade for a five-day work week, with a gun in his pocket the whole time, would run up a sentence of maybe 51 months for the drugs he sold but a whopping mandatory consecutive sentence of 105 years for five days of § 924(c) counts.

Congress never meant for this to happen. What it intended was that if you violated § 924(c) with a pistol in your pocket, you’d get an extra five years for carrying the gun (seven years if you “brandished” it). If you did your time and then were stupid enough to pack heat again, you would get a 25-year consecutive sentence. And why not? If five or seven years hadn’t taught you a lesson, you really needed an attitude adjustment.

Congress finally got around to fixing it in the First Step Act, changing § 924(c)(1)(C) to require that you actually be convicted of a § 924(c) offense before being hammered with the 25-year term for a second § 924(c) offense. You could still get stacked five-year terms for a week’s worth of armed drug dealing (25 years total for gun-toting from Monday through Friday), but you would not get the extra 80 years for your poor decision-making.

The usual horse-trading needed to get the Senate to pass First Step in the 11th hours of the 115th Congress resulted in a deal embodied in § 403(b) of the Act that the changes in § 924(c) would 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.”

Back in 2007, a gang dubbed the “Scarecrow Bandits” began a crime spree of bank robberies in the Dallas-Fort Worth area that totaled 20 heists. Dubbed the “Scarecrow Bandits” due to the clothing and face coverings they wore during their initial offenses, the gang was finally taken down by 11 months of cell tower analytics that sifted a haystack of data to find phones that had been pinging towers in the vicinity of each target bank only at times around the robbery. When the gang prepared to hit bank number 21 in Garland, Texas, the police arrested them.

Thanks to the § 924(c) in force at the time, the government hung 330 years on the perpetrators. The passage of the First Step Act didn’t help, because the robbers had long since been sentenced. However, after the Supreme Court held in 2019 that the “crime of violence” definition the Government routinely used to support some § 924(c) convictions was unconstitutionally vague, several of the Hewitt defendants successfully petitioned to have their sentences set aside. When they were resentenced, they argued that because the new sentences were being imposed after First Step passed, they were entitled to the benefit of having their subsequent § 924(c) sentences cut from 25 years apiece to seven years apiece or less.

The 5th Circuit (joining the 6th but in opposition to the 3rd and 9th), ruled that § 403(b) excluded any defendant who was sentenced prior to the enactment date of the First Step Act, even if his sentence was later vacated. The 5th argued that First Step applies only “if a sentence for the offense has not been imposed as of” the Act’s enactment date. Even if the Scarecrow sentences were later vacated, they still had “been imposed” upon that defendant prior to the Act “as a matter of historical fact.”

Justice Ketanji Brown Jackson, writing for the 5-4 majority, reminded everyone why all of that tedious junior high school English grammar was consequential after all. She explained that the operative phrase of § 403(b) is “not written in the past-perfect tense, excluding anyone upon whom a sentence “had” been imposed. Rather, Congress employed the present-perfect tense—thereby requiring evaluation of whether “a sentence . . . has . . . been imposed” upon the defendant.” Citing sources including the Chicago Manual of Style and The Cambridge Grammar of the English Language, she argued “the primary focus is on the present” while “the past maintains ‘current relevance.’”

Justice Brown offers this example:

Suppose the U. S. Olympic Committee enacted a rule stating that athletes may call themselves Olympic champions if a gold medal “has been awarded” to them. Pursuant to that rule, a U. S. sprinter who took first place in the 2016 Summer Olympics’ 100-meter finals could validly proclaim—today—that she is “an Olympic champion.” The existence of her win as a historical event triggers the rule’s proper application, because it gives rise to the inference that the athlete remains an Olympic gold medalist at present, thereby justifying her continued use of the “Olympic champion” title…

But now imagine that the Olympic Committee stripped this sprinter of her medal after discovering that she used performance-enhancing drugs during the competition. Can that athlete, under the rule, still call herself an Olympic champion? The answer is no. Yes, she had been awarded such a medal, but it was revoked; the fact that she stood on the podium and was declared the winner in 2016 is inapposite for purposes of establishing whether she qualifies for Olympic-champion bragging rights under the rule today.

When used in this way, the present-perfect tense conveys to a listener that the event in question continues to be true or valid.

Her point was that a sentence once imposed but later vacated is not a sentence at all because it does not remain valid. The law thus denies sentencing relief to only those pre-First Step Act sentences with “continued legal validity, not those that have been vacated,” Jackson wrote.

The decision produced a strong dissent from Justice Samuel Alito Jr., who accused the majority of “disfigur[ing]” the law to “march in the parade of sentencing reform… Animating the court’s atextual interpretation is a thinly veiled desire to march in the parade of sentencing reform. But our role is to interpret the statute before us, not overhaul criminal sentencing,” he wrote in a dissent joined by Justices Clarence Thomas, Brett Kavanaugh and Amy Coney Barrett.

Writing his Sentencing Law and Policy blog, Ohio State University law professor Douglas Berman was as disappointed in the decision as one who supported the result could be. He wrote that “Justice Gorsuch has extolled the rule of lenity in a number of notable recent statutory interpretation cases (e.g., Wooden; Pulsifer), stressing that “lenity has played an important role in realizing a distinctly American version of the rule of law.” The issue in Hewitt may not be a “classic” rule of lenity case, but it clearly is one in which traditional tools of statutory interpretation yield no clear answer and a defendant’s liberty is at stake… [I]t seems notable that this word gets not a single mention in the Hewitt opinions… These opinions function to suggest there is more legislative meaning and purpose in verb choice than in how to redefine just and fair punishments in the enactment of the First Step Act.”

Hewitt v. United States, Case Nos. 23-1002, 23-1150, 2025 U.S. LEXIS 2494 (June 26, 2025)

I2 Group, Catching the Scarecrow Bandits

United States v. Davis, 588 U.S. 445 (2019)

Law.com, Split Supreme Court Allows Lighter Sentences for Bank Robbers Dubbed ‘Scarecrow Bandits’ (June 26, 2025)

Courthouse News Service, Justices side with bank robbers seeking new sentences under reform law (June 26, 2025)

Sentencing Law and Policy, Where are concerns for liberty and lenity and broader constitutional values in Hewitt? (June 26, 2025)

– Thomas L. Root