Biden Switch Unlikely to Save Crack Offenders at High Court (1)

People convicted of low-level crack possession seem unlikely to get a federal sentencing break from the U.S. Supreme Court, despite backing from the Biden administration and a bipartisan group of senators behind a criminal justice reform law that they said allows for such relief.

Hearing its last argument of the term on Tuesday, nearly all of the justices cast doubt on the claim that the 2018 First Step Act provides re-sentencing for the lowest-level offenders, even though a ruling against the defense would have the anomalous result of allowing re-sentencing for kingpins.

While justices acknowledged that oddity, the court sounded skeptical that the law allows otherwise.

Sonia Sotomayor, generally the most likely justice to side with a criminal defendant, noted “difficulties” with imprisoned drug offender Tarahrick Terry’s argument. Justice Neil Gorsuch, who has voted for some defendants in divided cases, asked no questions.

A decision is expected by July.

Drug War Fallout

In a dispute that tracks the drug war’s—and President Joe Biden’s—evolution, the high court confronted fallout from Reagan-era sentencing disparities, and how the First Step Act signed by Donald Trump interacts with Obama-era reform.

The Anti-Drug Abuse Act of 1986, backed by then-Sen. Biden (D-Del.), imposed stiff mandatory minimums as well as the notorious 100:1 crack-to-powder ratio—one gram of crack was punished the same as 100 grams of powder.

Justice Stephen Breyer said during the telephone argument that the ratio was “ridiculous.” But he said this case doesn’t have anything to do with it, and he expressed concern that a ruling for Terry could lead to career criminals seeking re-sentencing.

“You get me out of this,” he pleaded with Terry’s lawyer, Florida federal public defender Andrew Adler. “I’d love to get out of it. I mean, I think they were much too high. I understand that. But I can’t get away from this statute.”

The statute in contention is the 2018 First Step Act, which made retroactive the 2010 Fair Sentencing Act’s reduction of the crack/powder ratio to 18:1.

The question in Terry’s case is whether certain pre-2010 Act, low-level crack offenders are eligible for retroactive relief. Though Trump backed the 2018 law, the Justice Department during his tenure said no.

After the 2020 election, the federal government switched sides. “The First Step Act finishes the job that the Fair Sentencing Act started of erasing the taint of the racially disproportionate 100-to-1 ratio,” deputy U.S. solicitor general Eric Feigin said during the argument.

Biden, who supported other tough-on-crime measures as a senator as well, campaigned for president on ending the crack/powder disparity.

Covered or Not?

After getting caught with 3.9 grams of crack in Miami in 2008, Terry pleaded guilty in Florida federal court that year to possession with intent to distribute. He was sentenced to more than 15 years in prison and is scheduled for release in late September.

Whether Terry can move for a reduction before then—and whether other low-level offenders can benefit—turns on whether he’s covered under the First Step Act. Under that law, covered offenses are ones whose statutory penalties were modified by the Fair Sentencing Act.

The relevant drug law has three tiers. Before the Fair Sentencing Act, the toughest tier triggered mandatory minimums for possessing 50 grams of crack, and five grams triggered the second tier. The third tier punishes amounts “except as provided” in the other two. Terry was convicted under the third tier.

The Fair Sentencing Act increased the triggering amounts to 280 grams and 28 grams, respectively, while saying nothing directly about the third tier.

That silence led the Atlanta-based U.S. Court of Appeals for the Eleventh Circuit to rule against Terry, reasoning that the act “did not expressly amend” the lowest tier. Appeals courts are split on the issue.

Adler said all three tiers, including Terry’s, were raised, with the “ceiling” in his offense raised from five to 28 grams. That leads judges to view possession like Terry’s less severely, and it would be perverse to allow re-sentencing for kingpins but not low-level possessors, Adler said.

Explaining the difficulties she had with his argument, Sotomayor observed that the penalties remained the same for sellers under five grams.

Later in the argument, Sotomayor asked Adam Mortara, whom the court appointed to argue in defense of the Eleventh Circuit judgment, about the brief backing Terry from four senators who passed the First Step Act.

Richard Durbin (D-Ill.), Charles Grassley (R-Iowa), Cory Booker (D-N.J.), and Mike Lee (R-Utah) wrote that the act “authorizes relief to everyone who had been sentenced for crack-cocaine offenses before the Fair Sentencing Act became effective, including individuals with low-level crack offenses.”

Mortara dismissed their view. He said it only represents “four members of one of our two houses of Congress. I don’t think it represents necessarily the universal view of those who voted for the First Step Act. What represents that is the text of the statute.”

The case is Terry v. United States, U.S., No. 20-5904, oral argument 5/4/21.