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Crack Case, Biden Switch Bring Bipartisanship to Supreme Court

May 4, 2021, 6:00 AM

The Supreme Court wades into the war on drugs Tuesday, considering a case delayed by the Biden administration’s last-minute change of position on allowing shorter sentences for potentially hundreds of people convicted of possessing small quantities of crack cocaine.

The administration is part of an unusually lopsided set of litigants urging the court to let more people take advantage of the First Step Act, a 2018 criminal justice reform law that included retroactive reduction of many drug sentences. Lawmakers from both parties, along with both conservative and liberal groups, say Congress intended for the law to encompass low-level offenders.

Although then-President Donald Trump signed the measure into law, his administration argued in court for a narrow application. President Joe Biden’s team reversed that stance on the March 15 due date for the government’s main brief, prompting the court to reschedule the case for a rare May argument.

The filings “reflect the bipartisan consensus that led to the First Step Act’s passage,” said Mark Osler, a professor at the University of St. Thomas School of Law who specializes in sentencing policy. “That coalition has held together to push for a broad interpretation of the retroactive portions of the FSA.”

The case, the last of the court’s nine-month term, could be the last telephone session of the Covid-19 era.

The dispute tracks the evolution of the drug war -- and Biden’s position on it -- centering on the decades-old sentencing disparity between crack and powdered cocaine.

Crack Disparity

That disparity dates to the 1986 Anti-Drug Abuse Act, a law backed by then-Senator Biden that punished possession of one gram of crack the same as 100 grams of powder cocaine. The 100:1 ratio drew fire for years as being racially discriminatory and unscientific.

The 2010 Fair Sentencing Act reduced the ratio to 18:1, but only prospectively. The First Step Act then made the change retroactive, at least for some offenders.

The justices will consider the case of Tarahrick Terry, who pleaded guilty to a drug charge after being caught in Miami in 2008 with 3.9 grams of crack in his pants pocket. As a repeat drug offender, Terry was sentenced to 15 years and eight months in prison and is scheduled for release in late September.

A federal appeals court ruled that Terry wasn’t covered by the First Step Act, saying the law’s wording meant it applied only to people convicted of possessing larger amounts.

The Biden administration’s top Supreme Court lawyer, Acting Solicitor General Elizabeth Prelogar, says excluding low-level offenders would undermine the intent of the 2018 law.

The appeals court interpretation “would be antithetical to Congress’s remedial design and would mean that Congress left a significant class of offenders out of its efforts to fully redress the now-discredited 100-to-1 ratio in federal crack-cocaine sentences,” Prelogar argued in court papers. Biden campaigned on ending the crack-powder disparity.

Terry’s lawyers said the appeals court approach “would upend Congress’s long-standing objective to punish major drug traffickers more severely than low-level dealers.”

Court-Appointed Lawyer

The Justice Department shift forced the court to appoint an outside lawyer, Adam Mortara, to advocate against reduced sentences. Mortara, a lecturer at the University of Chicago law school, contends people in Terry’s situation already got a chance to advocate for shorter prison terms after the commission that issues guidelines for federal sentences incorporated the lower ratio in 2011.

“Congress and the commission together actually treated the lowest-level crack dealers best because they obtained relief nearly ten years ago,” Mortara argued.

Both sides say the statutory language backs their case.

The disputed part of the 2018 law applies only to offenses that were modified in 2010 by the Fair Sentencing Act. The earlier measure adjusted the tiers that trigger mandatory minimum sentences, requiring possession of 280 grams for the top tier and 28 grams for the second tier, up from 50 and five grams.

Terry was convicted under the third tier, so the new laws didn’t change any minimum sentence that applied to him. But the changes expanded the number of people in his tier -- adding those convicted of possessing several times more drugs than he had -- and Terry contends a judge might have viewed him as relatively less culpable and sentenced him accordingly.

Among those backing Terry are four U.S. senators: Democrats Dick Durbin of Illinois and Cory Booker of New Jersey and Republicans Chuck Grassley of Iowa and Mike Lee of Utah. They argued that the First Step Act, which they fought to pass, “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.”

The case is Terry v. United States, 20-5904.

To contact the reporters on this story:
Greg Stohr in Washington at;
Jordan Rubin in Arlington at

To contact the editors responsible for this story:
Elizabeth Wasserman at

John Harney

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