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Hey, everyone. This is Leon from Prologue Projects. On this week's episode of 5 to 4, Peter, Rhiannon, and Michael are talking about not one, but two cases. Fernandez v. United States and Rutherford v. 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. One of the many changes the law brought about was the expansion of compassionate release for people serving time in federal prison. But as you'll hear, the Supreme Court intervened when it heard cases from two such individuals who had thought the new law gave them an opening to win their freedom. In a move that effectively kneecapped a reform effort supported by both parties and pushed by the president, the Supreme Court denied compassionate release to both plaintiffs. This is 5 to 4, a podcast about how much

the Supreme Court sucks. Welcome to Five to Four, 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. I'm Peter. I'm here with Rhiannon. Hey. And Michael. Have they found that guy yet? They have not found him.

Where in the world is that New Jersey rep?

For anyone who's not following the story at all, there's a representative, Tom Keene Jr. from New Jersey, who's just like straight up not been seen for months. Yeah. And has not provided the public with an explanation. so a couple of days ago he put out a statement on twitter where he basically said this is a health issue and in a few weeks i will be transparent about what it is it's been months dude months in the meantime he won his primary he was endorsed by donald trump despite just being missing it's such a funny story there's literally no medical condition that would justify waiting

this long to tell people about it insane to be missing this long and then after months then be like in a few weeks guys i got i got something cooking for you we're working on a statement

right now yeah i like can't think of a diagnosis that like justifies the silence the lack of an explanation for the absence when you are an elected official where you at i will say it is

funny to go missing for several months and then right after the primary be like i'm alive by the

way like that's yeah that's cool yeah that's standing on business you got a minute i'm still

not convinced he's alive i think in a couple weeks they might be like oh he died just two days ago

not right the next few weeks the quote-unquote next few weeks that they're using to put together a statement. They're putting together who's actually like running in his place.

They're fucking with like the chat GPT video version of him. Right. They're perfecting it and they're going to release it. And he's going to be like, I am about to die. Goodbye.

Send him out like poochie. And if you think this is in poor taste that he's going to come out with a real health issue, I just want to remind you this man is a Republican endorsed

by Donald Trump and an elected official. We didn't take this shit from Dianne Feinstein. Like, it's not OK. It's not OK.

In his, like, proof of life statement, he was like, Washington Democrats continue to push an agenda that is too extreme, too expensive and out of step with New Jersey. It's like, why? Why are you talking like that, dude? Where are you?

Get a job. Go to work.

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. First case is Fernandez v. United States, and the second is Rutherford v. United States. They are both about what is called compassionate release, where a prisoner can be released based on his specific circumstances. The First Step Act allows prisoners to make a motion for their own release. If a judge believes that there are, quote, extraordinary and compelling reasons for them to be released from prison, they will be released. These cases are all about what qualifies as extraordinary and compelling. The law does not give a ton of specifics, but the Supreme Court is on a mission to make it as narrow as possible.

Definitely. You better believe. So listeners will definitely remember the First Step Act. We've talked about it this year in a case previously, a case called Pulsifer. First Step Act, quick rundown. It's that bipartisan federal criminal. justice reform law. 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 and a problem with excessive punishment in federal prison. And the First Step Act sought to do those things by reducing federal prison sentences in general. So we said on the Pulsifer episode, still say this, probably the only good thing to come from the Trump administration, at least the first term for sure. And in Pulsifer, that case was about a provision of the First Step Act that allowed for re-sentencing for some people, for some certain drug offenses, for some certain drug convictions, and what conditions had to be met to be re-sentenced. Y'all will remember the Supreme Court in that case was fighting over the difference between and and or. So at issue in both of these cases, Fernandez and Rutherford, is the compassionate release provision of the First Step Act. And this provision in the First Step Act in this law says there might be reasons in a particular prisoner's case, there might be reasons that are so compelling, that are so important, and they're so unique, extraordinary, as to warrant someone being released from prison, even if they haven't completed their full sentence. You know, I think people have heard the term compassionate release. 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. But the way that the compassionate release provision is written in the First Step Act is encompassing of potentially other reasons, too. It's not just that somebody is elderly and they get compassionate release or just that somebody is sick. What the provision says is that if you can show extraordinary and compelling reasons why you should be released, then, 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. You go to a federal judge to review your request and the judge determines if there are extraordinary and compelling reasons to release you. And my understanding is that how it used to work

is that the Bureau of Prisons could request your compassionate release. 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. So you're not reliant on the Bureau of Prisons. Yeah, exactly. So starting with

this first case both of these cases again about this compassionate release provision the first case fernandez joe fernandez was charged with the murder of two people alleged to be like you know rival gang members he was convicted he was sentenced to prison now this charge and conviction was back in 2013 so as of today right joe fernandez has served something like 13 years fernandez has always maintained his innocence though 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 that co-conspirator was always framing Fernandez because the co-conspirator didn't want the person who actually did the murder to get charged with it because that person was the co-conspirator's brother. So Fernandez gets convicted. He's found guilty. The jury sentences him. He challenges his conviction in the appeals process, including in habeas. 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. But Fernandez in those appeals isn't successful. The courts don't side with him on overturning his conviction. So later, Fernandez comes to court. He files a motion. 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. He gets to the judicial review part of the process and the district court, this federal judge, agrees with him. That judge grants release, and in justifying that decision, the judge cites, you know, the doubts about the correctness of the conviction, whether the co-conspirator's testimony at trial was really truthful. But of course, the government appeals, the Second Circuit Court of Appeals reverses the judge's granting of compassionate release, and then Fernandez, of course, appeals to the Supreme Court. So what does extraordinary and compelling mean? And can innocence count as extraordinary and compelling?

So Fernandez is basically saying I should get compassionate release because I'm innocent, because there are doubts about my conviction. 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, right? That's an extraordinary and compelling reason to release me. But the Supreme Court disagrees. Amy Coney Barrett writes the majority. She writes the majority in both of these cases. She's joined by the other conservatives here. And what she says is that if you want to challenge the validity of your conviction, you have to do that through habeas corpus. Talked about habeas, of course, many times. But like Rhee said, it allows prisoners to file a motion challenging their imprisonment generally on constitutional grounds. So Coney Barrett is saying, look, Congress already created a law that allows you to do this. And that law has all sorts of restrictions on it, you know, statutes of limitations, for example. So you're circumventing those restrictions by trying to use the First Step Act for the same thing. 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 a legal wrong, I feel like those are probably more closely intertwined than Amy's making them out to be, right? Like, I don't know what she thinks mercy is or if like she believes mercy is like a legal

term or something. Yeah. A lot of merciful behavior and actions in the Bible are in response to

unjust legal decisions. Right. She says an argument that is compelling in one context is not necessarily so in another. 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. He's saying if you can challenge your imprisonment through another law that makes your case less compelling. But I don't see I don't see why it would. Why can't you just analyze it as it on its own two feet as it stands in front of you? Right. Another thing here is that the Supreme Court has basically said that these types of habeas cases aren't allowed. People have tried to bring habeas claims arguing that they are actually innocent. In 1993, in a case we covered called Herrera v. Collins, the Supreme Court said that basically that's not allowed. The conviction of an innocent person does not violate the Eighth Amendment, they said. 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? Fernandez makes this point in his briefs, and Barrett makes another argument in response that I think is incoherent. She says, well, this isn't really relevant to Fernandez because, quote, no court concluded that Fernandez was actually innocent which is like well yeah but that's what he's asking for he's asking for the court the lower court to do that right or at least to determine that there's sufficient doubts about his about his right at least to determine exactly early right at least to determine that you know if he's not innocent there's enough doubt that compassionate release is in order right 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 Herrera, the court held that actual innocence habeas claims aren't cognizable under the Eighth Amendment. So like they're not technically ruled out in all cases, but it's pretty widely understood that they actually are. How else would you bring

an actual innocence claim in terms of a violation to your constitutional rights? It's not going to be under the Second Amendment. Right. That doesn't make any sense. What's the other avenue? I mean,

And Scalia wrote about this, but Scalia believed that actual innocence was just not a valid habeas claim, period.

Right. He has a line about like, you need finality in the law. At some point, it's just over. The arguments are over.

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 is supposed to be habeas. And then everything that is habeas is impermissible. They're just going to say, no, that's not how habeas works, actually. Yeah, is what they say. Right.

There's a very short concurrence in this case. Two libs here, Justices Sotomayor and Kagan, with Sotomayor writing this. currents, they're agreeing with the holding that Fernandez 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 where they're transposing, Sotomayor 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. Like, that's wrong. The First Step Act and the Compassionate Release Provision say what the rule is for considering compassionate release. It is, does the person have extraordinary and compelling reasons? 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 and courts multiple times have declined to find that he is innocent in effect and to overturn that conviction 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, because 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 at before. And so that might rise to the level, Sotomayor is saying, of extraordinary and compelling reason that somebody should be granted

compassionate release. 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? And so Sotomayor and Kagan are sort of like, look, if there's new evidence, then that can probably support a claim here. But Fernandez himself does not have new evidence. And then KBJ has a dissent,

a solo dissent. And I think it's important to remember that she came up through the sentencing commission. She was vice chair of the sentencing commission. And I think that really comes through in this dissent. 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 deftly. You know, she starts with the compassionate release statute itself and is like, look, extraordinary and compelling, those are measures of degree, not type. So there's only one type of restriction Congress put on here. They said rehabilitation is not extraordinary and compelling. That's the only type of thing that they said could not qualify as extraordinary and compelling. Otherwise, it's just matters of degree. So why are you putting a categorical bar on certain types of claims that could be considered extraordinary and compelling? It doesn't fit the language of the statute. It doesn't fit the statutory design. It doesn't really fit comfortably with the overall design of the First Step Act. It doesn't make any sense. She also goes into how different this actually is from habeas.

Yeah.

She's like, habeas is where you argue that your conviction was unconstitutional. 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. But she's like, he's not saying his trial was unconstitutional. He's not saying exculpatory evidence was upheld. He's not saying he had insufficient assistance of counsel. He's not making any of the classic constitutional claims about the fairness of his trial. He's just saying, I didn't do it. and that's a good reason for me to not be in prison. That's not a habeas claim. She's like, that doesn't look anything at all like a habeas claim. 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. The habeas statute says, look, if you find that it was unconstitutional, the trial's unconstitutional, a constitutional violation, you must, no discretion, order, release. Here, if a judge finds extraordinary compelling circumstances, they may order release. They don't have to. There's discretion. There's no discretion in habeas for the judge. And then she also makes the point, the remedies are different. In habeas, it's not just that you've released, your conviction's vacated. You essentially have never been found guilty at all. Whereas here, your conviction stands. It's just that your sentence was shortened. And so she's like, he's not bringing a habeas claim. What's required of the judge is not what's required in habeas. And the remedy is different. So why are we talking about this? Like, it's habeas. It's nothing at all like habeas. Instead, what this looks like is two different avenues that sit comfortably side by side together. Like, that makes a lot of sense. And she has a good line I want to quote. She says, put differently.

habeas nullifies a conviction as a matter of law, while compassionate release shortens a sentence as a matter of grace. And I think that's a good way of thinking about it. These are not mutually exclusive things, and there's no reason to graft one on top of the other. 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. I did want to note, I think she does make the point that like, 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 abuse of discretion. And she admits, she's like, the district court may have abused its discretion here. I'm not making a claim one way or another on it. I thought it was interesting because, you know, she might jurisprudentially think like remanding 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. But she easily could have, if she wanted to, made her own, you know, determinations like Sotomayor and Kagan. And this easily could have been styled as a concurrence if she wanted it to be. 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. 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, it's bullshit. What they're doing is bullshit. They're doing great violence to this statute. It's really unjust. And I'm not going to soften the blow here of my disagreement with them by styling it as a fucking concurrence. Are you kidding me like yeah i i think there's i think there's something to it and i think it's very powerful i i thought it was a great opinion and going into it i was kind of like i see where sort of my orren kagan are coming from after reading her opinion i'm like no she's she's right convinced yeah she's got the goods for sure yeah yeah and we talk about you know why not dissent you know

like for libs like why do a weird technical narrow concurrence dissent like we know we're losing so dissent. When people hear that Mint Mobile plans are only $15 per month, a lot of people wonder, what's the catch? Well, I can tell you, there isn't one. There are no gimmicks, no gotchas, just unlimited talk, text and data, fast, reliable coverage on the nation's largest 5G network, and an award-winning care team. That's impressive. I guess that makes Mint Mobile a catch. Mint Mobile took what's wrong with wireless and made it right with premium wireless for 15 bucks a month. You can even bring your current phone and your number. Choose from three, six or 12 month plans and say goodbye to a monthly bill. Ditch overpriced wireless with Mint Mobile. It's so easy. Sign up online and get three months of premium wireless service for 15, one five bucks a month. To get your new wireless plan for just 15 bucks a month, go to mintmobile.com slash five four. all spelled out. That's mintmobile.com slash 5-4. Cut your wireless bill to 15 bucks a month at mintmobile.com slash 5-4 all spelled out. That's it. There's no catch. $45 upfront payment required equivalent to $15 a month. New customers on first three month plan only speeds slower above 40 gigabytes on unlimited plan. Additional taxes, fees and restrictions apply. See Mint

mobile for details. Summer always changes how I get dressed. I want pieces that feel lighter and more breathable. Things that are easy, but still put together. As I always say, summertime and the Quinson's easy. Thank you, Peter. Quince. That's why I keep coming back to Quince. They focus on high quality essentials that feel and look amazing. Think breathable linen and soft organic cotton. Well-made basics, but without the luxury markup. It's the rare balance where everything feels elevated but still effortless uh i got 99 problems but quince ain't one excellent thank you their european linen pants and shirts are perfect warm weather upgrade to add to your rotation starting at just 34 dollars rolling in the quince that was uh adele rolling in the everything at quince is priced 50 to 80 percent less than similar brands you know i have been wearing my uh linen pants all the time i love them they change the way i feel about dressing i also got a linen blazer i haven't gotten the chance to wear yet i'm just waiting for the right little party in central park or something i'm out of quince bud elevate your summer wardrobe go to quince.com slash five four for free shipping on your order and 365 day returns now available in candidate two that's q u i n c e dot com slash five for free shipping and 365-day returns. Quince.com slash 5-4. Quince. Back on the point of, like, 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 that criminal defendants are trying to get some second bite of the apple by using the compassionate release provision here. That's throughout these cases and something that is really important that KBJ points out and is really important in this next case, Rutherford, which is compassionate release is not overturning a conviction. It actually doesn't do anything about the finality of decisions in the criminal legal system. People still have their convictions. We're talking about sentences just being shorter. 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. It was late last week. But Rutherford itself is a consolidated case. Two men here, two federal inmates, Daniel Rutherford and Johnny Carter, are separately making the same request and the cases were put together in front of the Supreme Court.

So Rutherford and Carter were both convicted and sentenced under federal sentencing guidelines that existed before the passage of the First Step Act. Both men were convicted of federal gun crimes. Rutherford was convicted of two armed robberies, by the way, in which no one was hurt. He took a total of around $1,300 in those armed robberies. And the sentencing provisions. And a watch. And a watch. And a watch, sorry. Don't gloss over that. Peter loves watches. 1,300 and a lot. Someone takes one of my watches. No federal statute. Just standing in my way. So the sentencing provisions that were relevant to Rutherford at the time he was sentenced meant that the minimum sentence at that time that he was convicted, 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. Now, the First Step Act was passed in 2018 and would have made the minimum sentence, decreased the minimum sentence for those gun crimes, those same gun crimes, decreased it from the 32 years that Rutherford got to 14 years. Johnny Carter, on the other hand, in this other case, he was convicted of robbing banks along with a group of people. 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. And Carter actually in total was sentenced to 70 years in combination with other convictions. But after the First Step Act passed, the gun crimes minimum for Carter would have been 21 years rather than 57. We're talking about decades of time reduction in sentences. Now, when passing the First Step Act, Congress said this law is non-retroactive. It doesn't apply to everyone that has ever been sentenced under the federal sentencing guidelines. Otherwise, everybody in federal prison would have to be resentenced. So, yes, there is general non-retroactivity in the First Step Act. There's a general idea that these new sentencing guidelines are forward-looking. They apply only for cases after 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. There are clearly some cases, 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 overturning convictions, but a review of somebody's sentence. Rutherford, by the way, Mr. Rutherford has been in prison about 23 years. Mr. Carter has been in prison about 19.

So both Carter and Rutherford petitioned for compassionate release. And their argument is that the revised sentencing guidelines that were enacted by passage of the First Step Act, those would have reduced their sentences by decades. That should count as extraordinary and compelling as to them. They are uniquely extraordinary and compelling in their cases. 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. But the fact they're saying that their sentences would have been reduced by more than half.

half the number of years, again, decades, they're saying that should count as extraordinary and

compelling. So Barrett writes the majority again here. And what she says is, look, you're just trying to get around the fact that the statute is not retroactive, right? Congress said this isn't retroactive. And you're arguing that your sentence is now like disproportionate to the point where it justifies compassionate release. But if we allow it for you to be released in these circumstances, we're sort of functionally making it retroactive against the will of Congress, right? That's her argument, which I think is reasonably compelling in a vacuum. The problem with it is that it sort of understates what Congress actually did here. And I'll hand it back to you, Rhi, because I think the Sotomayor dissent lays this out pretty well.

Yeah, exactly. So Sotomayor in dissent, and she's joined by the other two libs, says in the First Step Act, Congress directs the U.S. Sentencing Commission, which KBJ served on, directs the U.S. Sentencing Commission to define what constitutes extraordinary and compelling reason. So the U.S. Sentencing Commission issued guidance in 2023 on how district courts should evaluate what is extraordinary and compelling reasons, what might be extraordinary and compelling in these kinds of cases. And in that guidance, the sentencing commission said specifically that even though it should happen really rarely, sentencing disparities that were created by changes in the law 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. And when, you know, society, things have progressed, new laws have changed all of that. The Sentencing Commission specifically says this can be something that is considered and that that doesn't nullify the general idea or framework that the First Step Act is non-retroactive. So Sotomayor says, you know, the question isn't whether or not this makes the First Step Act retroactive. Like Amy Coney Barrett is like, oh, you're trying to make it retroactive and Congress said it's not retroactive. Sotomayor says, no, that's not the question. The question is whether the sentencing commission in issuing this guidance was acting unreasonably. Congress empowered the sentencing commission to define what extraordinary and compelling means. They did so. So were they unreasonable in doing so? And, you know, for these two cases, Sotomayor talks, for example, in Rutherford 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, that both of these men had turned their lives around. They were model prisoners. They had completed education and work training programs in prison. They had perfect disciplinary records for years, etc., etc., etc. So Sotomayor is saying Congress gave the Sentencing Commission authority to define and figure out what extraordinary and compelling means. They did so and they included sentencing disparities as a factor within the totality of factors that rarely but could justify compassionate release. This is the end of the analysis. Don't don't just say this makes it retroactive. Like it's like you're using it like a bludgeon, like they're using non retroactivity as a bulldozer for the compassionate release provision.

The district court's not just doing math and subtracting one number from the other, right? They're talking about the individual circumstances of Rutherford 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. And on top of that, his sentence was really disproportionately long, right? It's like one thing to consider in a host of things. This is not a categorical retroactivity. That's the gist of both the sentencing commission's policy statement and what the dissent I think is rightfully saying here which is what the fuck are you concerned about majority like what are you

talking about so like first of all amy coney barrett is like you're going against the will of congress they didn't want this to be retroactive but the other part of the will of congress is that they empowered the sentencing commission to come up with guidelines right so her analysis of what the will of congress actually is a little bit iffy but the other thing is she's just sort of saying like you're making this retroactive and it's like no because

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. Yeah. These are people whose sentences are like three times what the First Step Act would permit.

Yeah. In their mid-20s, we're basically sentenced to die in prison.

Right. Yeah. The pitch is like, look, when the sentencing disparity is this vast, maybe that qualifies as extraordinary and compelling. Right. It's not like they're saying, hey, let everyone with a sentencing disparity out. That would be making it retroactive. What they're saying is like there might be extreme cases where the sentencing disparity is so much that they should at least allow the judge to take a look.

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. And that's that's how they act. There is a lot of room in 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.

Yes, they don't like it.

They don't like it. We don't have the capacity to decide every single district court case, right? But we don't like that the system as it's currently designed allows for this lib shit. So we are going to cabin your discretion everywhere we can. And we don't care if that means we're rewriting statutes. We don't care if that means we're overriding agencies. Like, 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 Gorsuch, this guy's rotting in prison for life. And so he's rotting in prison for life. Get fucked. 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

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 and the Supreme Court's just like popping in like no that's not a good reason No, no, no. That's not a good reason. No, not that. And if they can, they're just going to keep narrowing it until it's like one elderly guy getting out a year or whatever.

Yeah. Yeah. Yeah. I think there's something about the First Step Act and its non-retroactivity, which from Congress's perspective, makes sense. There's legal sense there. There's like an efficiency sense there.

It's 130,000 people in prison, right? That's a lot of people to re-sentence.

Exactly. Congress can't, with a stroke of a pen, just say all of these people get re-sentenced. Okay, we get it, right? 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. And so they're saying, yeah, it can't be retroactive, but 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. This isn't some easy hoop to jump through. This isn't some easy bar to meet 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. And so Congress, including these provisions, means that there's this fail-safe, there's this pressure valve release, at least on some cases. And what the Supreme Court is saying here by 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. And what the Supreme Court is doing is is saying no, is saying no, there's nothing unfair about it. And in fact, it's legally wrong and it's an abuse of discretion and all of this stuff to even consider the things that Congress says should be considered.

There's something interesting about the First Step Act because it's the only woke thing Trump ever did. Right.

We've talked about this before, but, like, Jared Kushner, like, spearheaded this initiative. He appears to be, to some degree, a pretty sincere believer in criminal justice reform because, like, his dad got in trouble. And it seems pretty clear that he, like, convinced Trump, A, that this was a good thing and or B, that this would help him politically. Right. Trump has, like, spoken out publicly and been like. Minority voters, you have to love this this thing I'm doing. Yeah. So Trump does this like one good thing. And then the Supreme Court 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. It was just a sort of political thing for him.

Yeah. The aesthetics of it he felt were beneficial to him.

I'm doing criminal justice reform. Look, I am. I'm not a bad guy. I am, in fact, woke. 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 like john roberts the all my like the the greatest coward of all time he's like cussing people out you will you will die and burn in hellfire if you defy me on the tariffs like that's what's happening when he actually gives a shit about the policy and you look at this and like the supreme court's like no don't like this no like don't like this trump like i i imagine there's like very briefly a meeting where one of his advisors is like by the way the supreme court weakened the first step act and he's like good let's go yeah let's gotta

gotta keep them locked up folks yeah do you have my mcchicken where's the fish filet yeah

there's some weird dynamic here where like this one woke thing that trump did just goes off to die right it's like yeah what should be if you look back at his first term be his like signature piece of legislation, right? It's this and the tax cuts. Just sort of gets hacked away out by the Supreme Court and Trump doesn't give a shit at all. Just a beautiful encapsulation of his politics. All right, folks. Next week, an interview that Rhiannon conducted with the author Lisa Graves about her book about John Roberts, which I imagine was critical. Rhiannon, is that?

Yeah, real takedown, 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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Bye, y'all. 5 to 4 is presented by Prologue Projects. This episode was produced by Allison Rogers. Leon Nafok provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at ChipsNY. And our theme song is by Spatial Relations.