[SPEAKER_02]: Hey everyone, this is Leon from Prologue Projects.
[SPEAKER_02]: On this week's episode of 5-4, Peter, Reannon, and Michael, we're talking about not one but two cases.
[SPEAKER_02]: For Nanda's View United States and Rutherford View United States, both cases center on one of the few legislative achievements of Trump's first term, the first step act, which was signed into law in 2018 with broad bipartisan support and was considered a long overdue effort to reform the criminal justice system.
[SPEAKER_02]: One of the many changes the law wrought about was the expansion of compassionate release for people serving time in federal prison.
[SPEAKER_02]: As you hear, Supreme Court intervened when it heard cases from two such individuals, we thought the new law gave them an opening to win their freedom.
[SPEAKER_02]: In a move that effectively kneecapped or reform effort supported by both parties and pushed by the president, the Supreme Court denied compassionate release to both plaintiffs.
[SPEAKER_02]: This is five to four.
[SPEAKER_02]: A podcast about how much the Supreme Court sucks.
[SPEAKER_03]: Welcome to 5 to 4, where we dissect and analyze the Supreme Court cases that have caused our civil rights to go missing, like the representative from New Jersey's 7th District.
[SPEAKER_03]: I'm Peter.
[SPEAKER_03]: I'm here with Reannon.
[SPEAKER_03]: Hey.
[SPEAKER_03]: And Michael.
[SPEAKER_03]: Have they found that guy yet?
[SPEAKER_03]: Does he?
[SPEAKER_03]: They have not found him.
[SPEAKER_00]: Where in the world is that New Jersey rep?
[SPEAKER_03]: Ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha
[SPEAKER_03]: So a couple of days ago, he put out a statement on Twitter where he basically said, this is a health issue.
[SPEAKER_03]: And in a few weeks, I will be transparent about what it's been a month, dude.
[SPEAKER_03]: Months.
[SPEAKER_03]: In the meantime, he won his primary.
[SPEAKER_03]: He was endorsed by Donald Trump, just being missing.
[SPEAKER_03]: It's such a funny story.
[SPEAKER_03]: There's literally no medical condition that would justify waiting this long to tell people about it.
[SPEAKER_01]: Insane to be missing this long, and then after months, then be like, in a few weeks, guys.
[SPEAKER_01]: I got something cooking for you.
[SPEAKER_01]: We're working on a statement right now.
[SPEAKER_00]: Yeah, I'd like can't think of a diagnosis that like justifies the silence.
[SPEAKER_03]: So lack of an explanation for the absence when you are an elected official, where you add, I will say it is funny to go missing for several months and then right after the primary be like, I'm a lot by the way.
[SPEAKER_03]: Like that's cool.
[SPEAKER_00]: Yeah, that's cool.
[SPEAKER_00]: Yeah.
[SPEAKER_03]: That's standing on business.
[SPEAKER_03]: You got a minute.
[SPEAKER_01]: I'm still not convinced these alive.
[SPEAKER_01]: I think in a couple of weeks they might be like, oh, he died just two days ago.
[SPEAKER_01]: Not right.
[SPEAKER_00]: The next few weeks, the quote unquote, next few weeks that they're using to put together a statement.
[SPEAKER_00]: They're putting together who's actually like running in his place.
[SPEAKER_00]: Right.
[SPEAKER_03]: They're fucking with like the chat GPT video version of him right?
[SPEAKER_01]: They're perfecting it and they're gonna release it and he's gonna be like I am about to die goodbye Send them out like poochie and if you think this is important taste that he's gonna come out with a real health issue I just want to remind you these men is a Republican endorsed by Donald Trump
[SPEAKER_00]: And an elected official, we didn't take the shit from Diane Feinstein, like, it's not okay.
[SPEAKER_00]: It's not okay.
[SPEAKER_03]: It is like proof of life's tape and he was like Washington Democrats continued to push an agenda that is too extreme, too expensive and out of step with New Jersey.
[SPEAKER_03]: It's like, why, why are you talking like that, dude?
[SPEAKER_03]: Where are you?
[SPEAKER_00]: Get a job, go to work.
[SPEAKER_03]: All right, this week we're going to mix it up and possibly for the first time ever I can't remember we're going to do two cases both from this term both about the first step act the criminal justice reform law passed in Trump's first term in 2018.
[SPEAKER_03]: First case is for NANDSV United States, and the second is Rutherford, the United States.
[SPEAKER_03]: They are both about what is called compassionate release where a prisoner can be released based on his specific circumstances.
[SPEAKER_03]: The first step act allows prisoners to make a motion for their own release.
[SPEAKER_03]: If a judge believes that there are, quote, extraordinary and compelling reasons for them to be
[SPEAKER_03]: These cases are all about what qualifies as extraordinary and compelling.
[SPEAKER_03]: The law does not give a ton of specifics, but the Supreme Court is on a mission to make it as narrow as possible.
[SPEAKER_00]: Definitely, you better believe.
[SPEAKER_00]: So listeners will definitely remember the first step act we've talked about this year in a case previously, a case called Pulsefeffer, first step act quick rundown, it's that bipartisan federal criminal justice reform law.
[SPEAKER_00]: it was passed like Peter said in Trump's first term in 2018 to promote rehabilitation, to reduce recidivism, and to really like mitigate what was a pretty intense overcrowding problem.
[SPEAKER_00]: And a problem with excessive punishment in federal prison, and the first step back sought to do those things by reducing
[SPEAKER_00]: federal prison sentences in general.
[SPEAKER_00]: So we said on the pulse of our episode, still say this, probably the only good thing to come from the Trump administration, at least the first term for sure.
[SPEAKER_00]: And in pulse of our, that case was about a provision of the first step act that allowed for resentencing for some people, for some certain drug offenses, for some certain drug convictions,
[SPEAKER_00]: Y'all will remember the Supreme Court in that case was fighting over the difference between and and or.
[SPEAKER_00]: So at issue in both of these cases for NANDAS and Rutherford is the compassionate release provision of the first step act.
[SPEAKER_00]: And this provision in the first step act in this law says there might be reasons in a particular prisoner's case.
[SPEAKER_00]: There might be reasons that are so
[SPEAKER_00]: unique, extraordinary, as to warrant someone being released from prison, even if they haven't completed their full sentence.
[SPEAKER_00]: You know, I think people have heard the term compassionate release.
[SPEAKER_00]: And a lot of times you think about compassionate release being something that happens to like very elderly prisoners or somebody who's very, very ill, you know, has a diagnosis for something very serious.
[SPEAKER_00]: written in the first step act is encompassing of potentially other reasons too.
[SPEAKER_00]: It's not just that somebody is elderly and they get compassionate release or just that somebody is sick.
[SPEAKER_00]: What the provision says is that if you can show extraordinary and compelling reasons why you should be released, then
[SPEAKER_00]: Of course, simplifying things here, you can be released, and the process for doing that is to petition the Bureau of Prisons, BOP, BOP has to respond, and then you file a motion in federal court.
[SPEAKER_00]: You go to a federal judge to review your request, and the judge determines if there are extraordinary and compelling reasons to release you.
[SPEAKER_03]: And my understanding is that how it used to work is that the Bureau of Prisons,
[SPEAKER_03]: could request your compassionate release.
[SPEAKER_03]: What the first step act changed was that you could request your own, that you could file a motion saying, hey, let me out of here, right?
[SPEAKER_03]: So you're not reliant on the Bureau of prisons.
[SPEAKER_00]: Yeah, exactly.
[SPEAKER_00]: So starting with this first case, both of these cases, again, about this compassionate release provision, the first case for NANDAS.
[SPEAKER_00]: Joe Fernandez was charged with the murder of two people alleged to be like, you know,
[SPEAKER_00]: Now this charge and conviction was back in 2013, so as of today, right, Joe Fernandez has served something like 13 years.
[SPEAKER_00]: Fernandez has always maintained his innocence, though.
[SPEAKER_00]: His co-conspirator testified against him in the trial, put the murders on him, said Fernandez is the one with the gun, is the one that shoots the gun, but Fernandez argued at trial and ever since then, that co-conspirator was always framing Fernandez because the co-conspirator didn't want the
[SPEAKER_00]: to get charged with it because that person was the co-conspirators' brother.
[SPEAKER_00]: So, Fernandez gets convicted, he's found guilty, the jury sentences him, he challenges his conviction in the appeals process, including in habeas.
[SPEAKER_00]: Remember, habeas is where you challenge your imprisonment in this case on the basis that your constitutional rights have been violated, sort of big reason why your conviction should be deemed invalid.
[SPEAKER_00]: But Fernandas in those appeals isn't successful.
[SPEAKER_00]: The courts don't side with him on overturning his conviction.
[SPEAKER_00]: So later Fernandez comes to court.
[SPEAKER_00]: He files a motion.
[SPEAKER_00]: He's applying for compassionate release and as part of his application he includes that claim of innocence to argue that there are extraordinary and compelling reasons to release him right my innocence that is an extraordinary and compelling reason to release me.
[SPEAKER_00]: He gets to the judicial review part of the process and the district court, this federal judge agrees with him.
[SPEAKER_00]: That judge grants release and in justifying that decision, the judge cites, you know, the doubts about the correctness of the conviction.
[SPEAKER_00]: whether the co-conspirators testimony at trial was really truthful, but of course the government appeals the second circuit, court of appeals reverses the judges granting of compassionate release and then Fernandez of course appeals to the Supreme Court.
[SPEAKER_00]: So what does extraordinary and compelling mean and can innocence count as extraordinary and compelling?
[SPEAKER_03]: So Fernandez is basically saying, I should get compassionate release because I'm innocent because there are doubts about my conviction.
[SPEAKER_03]: And so, you know, functionally, a judge should be able to reconsider my case, look at, look at my trial and determine that it wasn't handled properly.
[SPEAKER_03]: Right?
[SPEAKER_03]: That's an extraordinary and compelling reason to release me.
[SPEAKER_03]: But the Supreme Court disagrees,
[SPEAKER_03]: Amy Coney Barrett writes the majority, she writes the majority in both of these cases.
[SPEAKER_03]: She's joined by the other conservatives here.
[SPEAKER_03]: And what she says is that if you want to challenge the validity of your conviction, you have to do that through habeas corpus.
[SPEAKER_03]: Talked about habeas, of course, many times.
[SPEAKER_03]: But like we said, it allows prisoners to file a motion challenging their imprisonment generally on constitutional grounds.
[SPEAKER_03]: So Coney Barrett is saying, look,
[SPEAKER_03]: Congress already created a law that allows you to do this.
[SPEAKER_03]: And that law has all sorts of restrictions on it, you know, statutes of limitations, for example.
[SPEAKER_03]: So you're circumventing those restrictions by trying to use the first step-act for the same thing.
[SPEAKER_03]: And she says the purpose of compassionate release is essentially mercy if someone is sick or whatever right not to right legal wrongs although I mean the idea of like mercy and writing illegal wrong
[SPEAKER_03]: I feel like those are probably more closely intertwined than Amy's making them out to be, right?
[SPEAKER_03]: Like, I don't know what she thinks Mercy is, or if like, she believes Mercy is like a legal term or something, right?
[SPEAKER_03]: I don't know.
[SPEAKER_00]: A lot of merciful behavior and actions in the Bible are in response to unjust legal decisions.
[SPEAKER_03]: Right.
[SPEAKER_03]: She says an argument that is compelling in one context is not necessarily so in another,
[SPEAKER_03]: And the reason is not compelling if Congress has channeled it through other statutes, basically saying, because you can file a habeas claim, challenging the validity of your conviction, this isn't compelling, which like, I just don't understand as a matter of logic, right?
[SPEAKER_03]: And you're saying, if you can challenge your imprisonment through another law, that makes your case less compelling.
[SPEAKER_03]: But I don't see why it would.
[SPEAKER_03]: Why can't you just
[SPEAKER_03]: as it on its own to feet, as it stands in front of you.
[SPEAKER_01]: Right.
[SPEAKER_03]: Another thing here is that the Supreme Court has basically said that these types of habeas cases aren't allowed.
[SPEAKER_03]: People have tried to bring habeas claims arguing that they are actually innocent.
[SPEAKER_03]: In 1993, in a case we covered, called Herrera V. Collins, the Supreme Court said, that basically that's not allowed.
[SPEAKER_03]: The conviction of an innocent person does not violate the eighth amendment they said.
[SPEAKER_03]: So, Barrett is like, well, you have to bring claims like this through habeas, but the court has more or less said you can't bring claims like this through habeas, right?
[SPEAKER_03]: For Andas makes this point in his brief, and Barrett makes another argument in response that I think is in coherent, she says, well, this isn't really relevant to Fernandez because, quote,
[SPEAKER_03]: which is like, well, yeah, but that's what he's asking for.
[SPEAKER_03]: Right.
[SPEAKER_03]: He's asking for the court, the lower court to do that, right?
[SPEAKER_03]: Or at least to determine that there's sufficient doubts about his release to determine that early, right?
[SPEAKER_03]: At least to determine that, you know, if he's not innocent, there's enough doubts that compassionate release is an order, right?
[SPEAKER_03]: She then says that the court has never actually held that actual innocence claims aren't allowed through habeas, which is like technically true because in her era, the court held that actual innocence habeas claims aren't cognizable under the eighth amendment.
[SPEAKER_03]: So, like, they're not technically ruled out in all cases, but it's pretty widely understood that they actually are.
[SPEAKER_00]: How else would you bring an actual innocence claim in terms of a violation to your constitution rights?
[SPEAKER_00]: It's not going to be under the second amendment.
[SPEAKER_03]: Right.
[SPEAKER_00]: That doesn't make any sense.
[SPEAKER_03]: What's the other avenue?
[SPEAKER_03]: I mean, Scalia wrote about this, but Scalia believed that actual innocence was just not a valid habeas claim period.
[SPEAKER_01]: Right.
[SPEAKER_01]: He has a line about, like, you need finality in the law.
[SPEAKER_01]: At some point, it's just over.
[SPEAKER_01]: Your arguments are over.
[SPEAKER_03]: Yeah, and I mean, it's just what is how would you bring one she doesn't say like look if you want to bring an actual innocence claim here is like the mechanism that you use here's the argument you make and that's all cognizable she just sort of is like well technically we haven't said you can't do this right being willfully obtuse here everything that's not habeas
[SPEAKER_03]: It's supposed to be habeas and then everything that is habeas is impermissible.
[SPEAKER_03]: They're just what they know you.
[SPEAKER_00]: That's not how habeas work, actually.
[SPEAKER_00]: Yeah, it's what they say.
[SPEAKER_03]: Right.
[SPEAKER_00]: There's a very short concurrence in this case to lips here.
[SPEAKER_00]: Justice's Sotomayor and K again was Sotomayor writing this concurrence.
[SPEAKER_00]: They're agreeing with the holding that for Nanda's himself, they don't think he should have been granted compassionate release with his innocence claim, but they say they're not joining in the reasoning and they're not agreeing in this rule that the Barrett Majority establishes.
[SPEAKER_00]: where they're transposing, so to my or says, like they're transposing, habeas analysis on top of the analysis that is called for by the compassionate release provision of the first step act.
[SPEAKER_00]: Like that's wrong.
[SPEAKER_00]: The first step act in the compassionate release provision say what the rule is for considering compassionate release.
[SPEAKER_00]: it is, does the person have extraordinary and compelling reasons?
[SPEAKER_00]: And Sotomayor and Kagan are basically saying, as to Fernandez, these facts don't rise to the level of extraordinary and compelling because Fernandez has argued his innocence in multiple appeals processes.
[SPEAKER_00]: and courts multiple times have declined to find that he is innocent, in effect, and to overturn that conviction.
[SPEAKER_00]: And so, you know, they're like, okay, the argument doesn't work for this guy, but the majority has created a rule now that applies all over these compassionate release claims that might include innocence claims, and that's unfair and unjust, and against what the first step act says.
[SPEAKER_00]: Because
[SPEAKER_00]: other people who might make this argument and petition for compassionate release saying that they are innocent, they might have new evidence that's never been reviewed by a court and never been looked up before.
[SPEAKER_00]: And so that might rise to the level, so to my or is saying of extraordinary and compelling reason that somebody should be granted compassionate release.
[SPEAKER_03]: frequently, if you're arguing that you need to be released after your conviction, it's because there's some new evidence that you want a court to consider, right?
[SPEAKER_03]: And so, so, so, so to my R&K, you're sort of like, look, if there's new evidence, then that can probably support a claim here.
[SPEAKER_03]: But Fernandez himself does not have new evidence.
[SPEAKER_01]: and then KBJ has a descent to solo descent and I think it's important to remember that she came up through the sentencing commission.
[SPEAKER_01]: She was vice chair of the sentencing commission and I think that really comes through in this descent.
[SPEAKER_01]: She has a certain fluency with how this stuff works that I think is very evident in her opinion and she handles it like very definitely.
[SPEAKER_01]: You know, she starts with the compassionate release statute itself and is like, look,
[SPEAKER_01]: Extraordinary and compelling, those are measures of degree, not type.
[SPEAKER_01]: So there's only one type of restriction Congress put on here.
[SPEAKER_01]: They said rehabilitation is not extraordinary and compelling.
[SPEAKER_01]: That's the only type of thing that they said could not qualify.
[SPEAKER_01]: as extraordinary compelling.
[SPEAKER_01]: Otherwise, it's just matters of degree.
[SPEAKER_01]: So why are you putting a categorical bar on certain types of claims that could be considered extraordinary in compelling?
[SPEAKER_01]: It doesn't fit the language of the statute.
[SPEAKER_01]: It doesn't fit the constitutional or the statutory design.
[SPEAKER_01]: It doesn't really fit comfortably with the overall design of the first step back.
[SPEAKER_01]: It doesn't make any sense.
[SPEAKER_01]: She also goes into how different this actually is from habeas.
[SPEAKER_00]: Yeah.
[SPEAKER_01]: She's like, hey, B.S.
[SPEAKER_01]: is where you argue that your conviction was unconstitutional.
[SPEAKER_01]: As we talked about the idea that an actual innocence claim would be, for example, a violation of the eighth amendment, which the Supreme Court has said it's not.
[SPEAKER_01]: But she's like, he's not saying his trial was unconstitutional.
[SPEAKER_01]: He's not saying the expulpatory evidence was a pithel, he's not saying he had insufficient assistance of counsel.
[SPEAKER_01]: He's not making any of the classic constitutional claims about the fairness of his trial.
[SPEAKER_01]: He's just saying, I didn't do it, and that's a good reason for me to not be in prison.
[SPEAKER_01]: That's not a habeas claim.
[SPEAKER_01]: She's like, that doesn't look anything at all like a habeas claim.
[SPEAKER_01]: Right.
[SPEAKER_01]: And she says, what's more the statute that creates the habeas courts asks a different thing or requires a different thing of judges than the compassionate release statute.
[SPEAKER_01]: The habeas statute says, look, if you find that it was unconstitutional, the trials and
[SPEAKER_01]: Here, if a judge finds extraordinary compelling circumstances, they may order release.
[SPEAKER_01]: They don't have to.
[SPEAKER_01]: There's discretion.
[SPEAKER_01]: There's no discretion in habeas for the judge.
[SPEAKER_01]: And then she also makes the point, the remedies are different.
[SPEAKER_01]: In habeas, it's not just that you're released, your convictions vacated.
[SPEAKER_01]: You've never been found guilty at all.
[SPEAKER_01]: Whereas here, your conviction stands.
[SPEAKER_01]: It's just that your sentence was shortened.
[SPEAKER_01]: And so she's like, he's not bringing a habeas claim.
[SPEAKER_01]: Yeah.
[SPEAKER_01]: What's required of the judge is not what's required in habeas.
[SPEAKER_01]: And the remedy is different.
[SPEAKER_01]: So why are we talking about this?
[SPEAKER_01]: Like it's habeas.
[SPEAKER_01]: It's nothing at all in habeas.
[SPEAKER_01]: Instead, what this looks like is two different avenues that sit comfortably side by side together.
[SPEAKER_01]: Like that makes a lot of sense.
[SPEAKER_01]: And she has a good line.
[SPEAKER_01]: I want to quote she says, put differently, habeas nullifies a conviction as a matter of law.
[SPEAKER_01]: While compassion it release shortens a sentence as a matter of grace.
[SPEAKER_01]: And I think that's a good way of thinking about it.
[SPEAKER_01]: These are not mutually exclusive things, and there's no reason to graft one on top of the other.
[SPEAKER_01]: She also, I think, she takes a lot of issue with some of the majority's other reasoning, and I think it's all very good, but I don't know if we need to get super into the weeds on it about the history of funneling things into habeas, but I think she clearly has the better of the argument.
[SPEAKER_01]: I did wanna note, I think she does make the point
[SPEAKER_01]: just because district court judges have discretion doesn't mean it's unlimited discretion and the standard of review for that is what's called abusive discretion and she she admits she's like the district court may have abused its discretion.
[SPEAKER_01]: I'm not making claim one way or another on it.
[SPEAKER_01]: I thought it was interesting because you know she might
[SPEAKER_01]: remaining to the second circuit to decide this in the first instance on the right standards is the way to go, and so she's not giving a position one way or another.
[SPEAKER_01]: But she easily could've if she wanted to, made her own, you know, determinations like Sotomayor and Kagan,
[SPEAKER_01]: And this easily could have been stylistic a concurrence if she wanted it to, I think there's a very specific choice being made here to style it as a dissent because it has a lot more rhetorical force.
[SPEAKER_01]: And I think that's like highlighting a very sharp difference between her and the other two liberals on the court that, you know, she's like the majority,
[SPEAKER_01]: It's bullshit.
[SPEAKER_01]: What they're doing is bullshit.
[SPEAKER_01]: They're doing great violence to this statute.
[SPEAKER_01]: It's really unjust.
[SPEAKER_01]: And I'm not going to soften the blow here of my disagreement with them by styling it as a fucking concurrence.
[SPEAKER_01]: Are you kidding me?
[SPEAKER_01]: Like, yeah, I think there's I think there's something to it.
[SPEAKER_01]: And I think it's very powerful.
[SPEAKER_01]: I thought it was a great opinion.
[SPEAKER_01]: And going into it, I was kind of like, I see we're so to my own cake and are coming from after reading her opinion.
[SPEAKER_01]: I'm like, no, she's, she's right.
[SPEAKER_01]: She convinced, yeah, she's got the goods for sure.
[SPEAKER_00]: Yeah.
[SPEAKER_00]: And we talk about, you know, why not to scent, you know?
[SPEAKER_00]: Like, for lips, like, why do a weird technical narrow concurrence descent?
[SPEAKER_00]: Like, we know we're losing, right?
[SPEAKER_00]: So to scent.
[SPEAKER_00]: Back on the point of how conservatives argue, you have this throughout both cases here, but conservatives argue that, like, finality in the criminal justice system is so important, and there's something imbued throughout both cases here about, like, that, you know, criminal defendants are trying to get, like, some second bite out the apple by using the compassionate release provision here.
[SPEAKER_00]: You know, that's throughout these cases and something that is really important that KBJ points out.
[SPEAKER_00]: and is really important in this next case, rather, for which is compassionate release is not overturning a conviction.
[SPEAKER_00]: It actually doesn't do anything about the finality of decisions in the criminal legal system.
[SPEAKER_00]: People still have their convictions.
[SPEAKER_00]: We're talking about sentences just being shorter.
[SPEAKER_00]: So let's talk about Rutherford, Rutherford, a separate case from Fernandez, but the decisions come down on the same day just at the time of this recording.
[SPEAKER_00]: It was late last week, but Rutherford itself is a consolidated case.
[SPEAKER_00]: Two men here, two federal inmates, Daniel Rutherford, and Johnny Carter are separately making the same request and the cases where we're put together in front of the Supreme Court.
[SPEAKER_00]: So, Reatherford and Carter were both convicted and sentenced under federal sentencing guidelines that existed before the passage of the first step act.
[SPEAKER_00]: Both men were convicted of federal gun crimes.
[SPEAKER_00]: Reatherford was convicted of two armed robberies, by the way, in which no one was hurt.
[SPEAKER_00]: He took a total of around $1,300 in those armed robberies and the sentencing provisions.
[SPEAKER_01]: A watch.
[SPEAKER_00]: and the watch don't don't class over that Peter loves watches 1300 someone takes one of my watches I don't ask you in my way so the sentencing provisions that were relevant to Brotherford at the time he was sentenced meant that the minimum sentence at that time that he was convicted
[SPEAKER_00]: The minimum sentence for the gun crimes was 32 years, and he actually was sentenced to 42 years in combination with other stuff that he was convicted of.
[SPEAKER_00]: Now, the first step act was passed in 2018, and would have made the minimum sentence decrease the minimum sentence for those gun crimes, those same gun crimes, decreased it from the 32 years that rather forgot to 14 years.
[SPEAKER_00]: Johnny Carter, on the other hand, in this, in this other case, he was convicted of robbing banks along with a group of people.
[SPEAKER_00]: And for Carter, the minimum at the time he was sentenced for the gun crimes portion of the offenses he was charged with was 57 years.
[SPEAKER_00]: And Carter actually in total was sentenced to 70 years in combination with other convictions.
[SPEAKER_00]: But after the first step act passed, the gun crimes minimum for Carter would have been 21 years, rather than 57.
[SPEAKER_00]: We're talking about decades of time reduction in sentences.
[SPEAKER_00]: Now, when passing the first step act, Congress said, this law is non-retroactive.
[SPEAKER_00]: It doesn't apply to everyone that has ever been sentenced under the federal sentencing guidelines.
[SPEAKER_00]: Otherwise, everybody in federal prison would have to be resentants.
[SPEAKER_00]: So yes, there is general non-retroactivity in the first step act.
[SPEAKER_00]: There's a general idea that these new sentencing guidelines are forward-looking.
[SPEAKER_00]: They apply only for cases after,
[SPEAKER_00]: 2018 after the passage of the law, but a few provisions in the first step act, including this compassionate release provision, contemplate some exceptions for non-retroactivity.
[SPEAKER_00]: There are clearly some cases.
[SPEAKER_00]: Congress says, like if someone has, for example, extraordinary and compelling reasons that Congress says that should, you know, it might and should still qualify for resentencing or release again, not over-turning convictions, but a review of somebody's sentence.
[SPEAKER_00]: Rutherford, by the way, Mr. Rutherford has been in prison about 23 years.
[SPEAKER_00]: Mr. Carter has been in prison about 19.
[SPEAKER_00]: So both Carter and Rutherford petition for compassionate release, and their argument is that the revised sentencing guidelines that were enacted by passage of the First Step Act,
[SPEAKER_00]: those would have reduced their sentences by decades that should count as extraordinary and compelling as to them.
[SPEAKER_00]: They uniquely extraordinary and compelling in their cases.
[SPEAKER_00]: Maybe someone who would have only gotten a few years less on sentencing with the new guidelines, you know, doesn't get that retroactive review of the sentence or can't be considered for compassionate relief.
[SPEAKER_00]: But the fact they're saying that their sentences would have been reduced by more than
[SPEAKER_03]: So, Barrett writes the majority again here, and what she says is, look, you're just trying to get around the facts that the statute is not a retroactive.
[SPEAKER_03]: Right, Congress said, this isn't retroactive, and you're arguing.
[SPEAKER_03]: that your sentence is now like disproportionate to the point where it justifies compassion and release.
[SPEAKER_03]: But if we allow for you to be released in these circumstances, we're sort of functionally making it retroactive against the will of Congress, right?
[SPEAKER_03]: That's her argument, which I think is reasonably compelling in a vacuum.
[SPEAKER_03]: The problem with it is that it sort of understates what Congress actually did here.
[SPEAKER_03]: Yeah.
[SPEAKER_03]: I'll hand it back to you read because I think the soda my order sent lays this out pretty well.
[SPEAKER_00]: Yeah, exactly.
[SPEAKER_00]: So soda my ear in descent and she's joined by the other two lives says in the first EPACT, Congress directs the U.S. sentencing commission, which TABJ served on, directs the U.S. sentencing commission to define what constitutes extraordinary and compelling reason.
[SPEAKER_00]: So the U.S.
[SPEAKER_00]: Sentencing Commission issued guidance in 2023 on how district courts should evaluate what is extraordinary in compelling reasons, what might be extraordinary in compelling in these kinds of cases.
[SPEAKER_00]: And in that guidance, the Sentencing Commission said specifically that even though it should happen really rarely, sentencing disparities that were created by changes
[SPEAKER_00]: can be considered as part of the justification for granting compassionate release if that sentencing disparity like sort of fits into a totality of circumstances that warrant a reduction in someone's sentence, a totality of circumstances that warrant mercy, that warrant a reduction that warrant a little bit of relief on the decades of the years that somebody has been sentenced to prison when society thinks of progressed new laws have changed all of that
[SPEAKER_00]: the sentencing commission specifically says this can be something that is considered and that that doesn't nullify the general idea of framework that the first step act is non retroactive.
[SPEAKER_00]: So sort of my or says, you know, the question isn't whether or not this makes the first step back retroactive.
[SPEAKER_00]: Like Amy Coney Barrett is like, oh, you're trying to make it retroactive in Congress that it's not retroactive.
[SPEAKER_00]: So tomorrow says no, that's not the question, the question is whether the sentencing commission in issuing this guidance was acting unreasonable.
[SPEAKER_00]: Congress empowered the sentencing commission to define what extraordinary and compelling means they did so.
[SPEAKER_00]: So were they unreasonable in doing so?
[SPEAKER_00]: And, you know, for these two cases, so tomorrow talks, for example, in Brotherford and Carter's cases, you know, judges in lower courts noted that for these guys in one or the other of the cases, the sentences they received were, quote, unthinkable in many state systems, even at the time they were sentenced.
[SPEAKER_00]: That both of these men had turned their lives around.
[SPEAKER_00]: They were model prisoners.
[SPEAKER_00]: They had completed education and work training programs in prison.
[SPEAKER_00]: They had perfect disciplinary records for years, et cetera, et cetera, et cetera.
[SPEAKER_00]: So Sotomayor is saying, Congress gave the Sentencing Commission authority to define and figure out what extraordinary and compelling means.
[SPEAKER_00]: They did so, and they included sentencing disparities.
[SPEAKER_00]: as a factor within the totality of factors that rarely but could justify compassionate release.
[SPEAKER_00]: This is the end of the analysis.
[SPEAKER_00]: Don't just say this makes it retroactive.
[SPEAKER_00]: It's like you're using it like a bludgeon like they're using non retroactivity as a bold
[SPEAKER_01]: The district court's not just doing math and subtracting one number from the other, right?
[SPEAKER_01]: Yeah.
[SPEAKER_01]: Talking about the individual circumstances of Brotherford and Carter and talking about how like, you know, one of them has a sister who passed away who has five kids and he wants to take care of the kids and he got a GED and he got a job lined up for if he should get released so that he could support them.
[SPEAKER_01]: And on top of that,
[SPEAKER_01]: his sentence was really disproportionately long, right?
[SPEAKER_01]: It's like one thing to consider, you know, host of things.
[SPEAKER_01]: This is not a categorical retroactivity.
[SPEAKER_00]: Yeah.
[SPEAKER_01]: That's the gist of both the sense it's in commission's policy statement.
[SPEAKER_01]: And what the descent, I think is rightfully saying here, which is what the fuck you concerned about, Majora, like what are you talking about?
[SPEAKER_03]: So like first of all, Amy Coney Barrett is like, you're going against the will of Congress.
[SPEAKER_03]: They didn't want this to be retroactive,
[SPEAKER_03]: The other part of the Will of Congress is that they empowered the sentencing commission to come up with guidelines, right?
[SPEAKER_03]: So her analysis of what the Will of Congress actually is little bit iffy.
[SPEAKER_03]: But the other thing is she's just sort of saying like, you're making this retroactive and it's like, no, because this isn't a guy who is like, I was sentenced to 14 years and after the first step act, it would have been 12 or whatever.
[SPEAKER_03]: These are people who sentences
[SPEAKER_03]: what the first step act would permit.
[SPEAKER_00]: Yeah, in their mid 20s, we're basically sentenced to die in prison.
[SPEAKER_03]: Right.
[SPEAKER_03]: Yeah.
[SPEAKER_03]: The pitch is like, look, when the sentencing disparity is this vast, maybe that qualifies as extraordinary and compelling, right?
[SPEAKER_03]: It's not like they're saying, hey, let everyone with the sentencing disparity out, that would be making it retroactive.
[SPEAKER_03]: What they're
[SPEAKER_03]: where the sentencing disparity is so much that they should at least allow the judge to take a look.
[SPEAKER_01]: Yeah, and so I think what you're seeing here in both these cases is that the conservatives are kind of like the little petty tyrants of the judiciary here, of this branch of government.
[SPEAKER_01]: And that's how they act.
[SPEAKER_01]: There is a lot of room in the country.
[SPEAKER_01]: this branch of government in the judiciary for individual discretion for liberal judges to do liberal things for the sentencing commission to promulgate liberal rules and they are like no woke shit, you know, we don't have it.
[SPEAKER_01]: They don't like it.
[SPEAKER_01]: We don't have the capacity to decide every single district court case, right?
[SPEAKER_01]: But we don't like
[SPEAKER_01]: that the system as it's currently designed allows for this lib shit.
[SPEAKER_01]: So we are going to cab in your discretion everywhere we can, and we don't care if that means we're rewriting stat sheets.
[SPEAKER_01]: We don't care if that means we're overwriting agencies.
[SPEAKER_01]: Like
[SPEAKER_01]: Fuck this, we're in charge, no woke shit sentencing commission, no woke shit, district court judge, who wants to say maybe this guy's innocent, fuck you, if I were sitting there as district judge corsage, this guy's rotting in prison for life, and so he's rotting in prison for life, get fucked.
[SPEAKER_01]: That's what's going on in these cases and they're going to narrow discretion as much as they can to force people in alignment with them.
[SPEAKER_03]: Yeah, the point of the law is sort of like every case needs to be looked at, holistically, every case has its own nuances, every trial has its own nuances and judges need to like take it all in and exercise their discretion.
[SPEAKER_03]: And the Supreme Court's just like popping in like, no, that's not a good reason.
[SPEAKER_03]: No, no, no, that's not a good reason.
[SPEAKER_03]: No, not that
[SPEAKER_03]: And if they can, they're just going to keep narrowing it until it's like one elderly guy getting out of a year or whatever.
[SPEAKER_03]: Right.
[SPEAKER_00]: Yeah.
[SPEAKER_00]: I think there's something about the first step back and it's non-retroactivity, which from Congress's perspective makes sense.
[SPEAKER_00]: There's legal sense there, there's like an efficiency sense there.
[SPEAKER_01]: There's 130,000 people in prison, right?
[SPEAKER_01]: That's a lot of people to resentance.
[SPEAKER_00]: Exactly.
[SPEAKER_00]: Congress can't, like, would be a stroke of a pen to say all of these people get resentments.
[SPEAKER_00]: Okay.
[SPEAKER_00]: We get it, right?
[SPEAKER_00]: But Congress in writing these provisions of the first step act, these narrow circumstances are contemplating that there is a manifest unfairness for people who were sentenced before the passage of the first step act.
[SPEAKER_00]: And so they're saying, yeah,
[SPEAKER_00]: There are some limited circumstances where we're asking that the sentencing commission figure out some guidelines, define some terms, and empower district court judges to use their discretion, looking at and reviewing some of these cases holistically and still meeting a very high bar, extraordinary and compelling
[SPEAKER_00]: This isn't some easy hoops to jump through.
[SPEAKER_00]: This isn't some easy bar to meet.
[SPEAKER_00]: When a judge is reviewing a case, but there's a recognition that there's something, yes, that is unfair about the first step act, not being totally retroactive.
[SPEAKER_00]: And so Congress, including these provisions, means that there's this bill safe.
[SPEAKER_00]: There's this pressure valve release at least on some cases.
[SPEAKER_00]: And what the Supreme Court is saying here,
[SPEAKER_00]: basically taking an axe to compassionate release in a lot of situations that apply actually to a very good deal of federal prisoners, even one is enough, but many, many more.
[SPEAKER_00]: What does the Supreme Court is doing is saying, no, there's nothing unfair about it and in fact it's legally wrong and it's an abusive discretion and all of this stuff to even
[SPEAKER_03]: There's something interesting about the first step act because it's the only woke thing Trump ever did.
[SPEAKER_03]: Right.
[SPEAKER_03]: We've talked about this before, but like, Jared Kushner, like, spearheaded this initiative.
[SPEAKER_03]: He appears to be to some degree a pretty sincere believer in criminal justice reform, because like his daddy got in trouble, and
[SPEAKER_03]: It seems pretty clear that he like convinced Trump.
[SPEAKER_03]: A that this was a good thing and or B that this would help him politically, right?
[SPEAKER_03]: Trump has like spoken out publicly and been like, minority voters, you have to love this.
[SPEAKER_03]: This is the thing I'm doing.
[SPEAKER_03]: Yeah.
[SPEAKER_03]: So Trump does this like one good thing and then the Supreme Court,
[SPEAKER_03]: It starts peeling back the substance of it and Trump has as far as I'm aware never Criticized the court for this right because He doesn't actually care about the substance of it, right?
[SPEAKER_03]: It was just a sort of political thing for him Yes, it is that except it.
[SPEAKER_00]: He felt we're beneficial to him.
[SPEAKER_03]: Yeah, I'm doing criminal justice reform Look, I am I'm not a bad guy.
[SPEAKER_03]: I am in fact woke
[SPEAKER_03]: and this is 2018 right no way would he have gone for this after 2020 but you compare that with like the tariff cases or whatever where like the court's like no we don't like these tariffs and he's like on truth social
[SPEAKER_03]: Like John Roberts, the greatest coward of all time.
[SPEAKER_00]: Yeah, they're saying fuccing people out there.
[SPEAKER_03]: You will die and burn and hellfire.
[SPEAKER_03]: Right, Kevin.
[SPEAKER_03]: If you defy me on the tariffs, like that's what's happening when he actually gives a shit about the policy.
[SPEAKER_03]: And you look at this and like the Supreme Court's like, no, don't like this.
[SPEAKER_03]: No, like, don't like this.
[SPEAKER_03]: Trump, like I imagine there's like very briefly a meeting where one of his advisors is like, by the way, the Supreme Court weakened the
[SPEAKER_03]: First step-backed and he's like good.
[SPEAKER_03]: Let's go.
[SPEAKER_03]: Let's make it.
[SPEAKER_03]: Got to keep him locked up folks.
[SPEAKER_00]: Yeah Do you have my mick chicken?
[SPEAKER_03]: Where's the fish?
[SPEAKER_03]: there's some weird dynamic here where like this one woke thing that Trump did just goes off to die, right?
[SPEAKER_03]: It's like what should be if you look back at his first term be his like signature piece of legislation, right?
[SPEAKER_03]: It's this and the tax cuts just sort of gets hacked away up by the Supreme Court and Trump doesn't give a shit at all.
[SPEAKER_03]: Just a beautiful encapsulation of his politics.
[SPEAKER_03]: Alright, folks, next week, an interview that Riannen conducted with the author, Lisa Graves, about her book about John Roberts, the time-adjusting was critical, bring that.
[SPEAKER_00]: Yeah, real take down, real look into the psychology, the rise, the development, the growth, and the man he is today, the little freak John Roberts.
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[SPEAKER_03]: Bye, everybody.
[SPEAKER_01]: Bye, y'all.
[SPEAKER_01]: Five to four is presented by prologue projects.
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