Bloomberg Law
June 27, 2022, 2:20 PM

Judges Can Weigh New Factors in Crack Cases, Justices Say (1)

Jordan S. Rubin
Jordan S. Rubin
Lydia Wheeler
Lydia Wheeler
Senior Reporter

Judges can consider new circumstances when resentencing criminal defendants punished when penalties for crack-cocaine were harsher, the US Supreme Court ruled.

In a 5-4 decision on Monday on a question the petitioner said affects thousands of people eligible for resentencing, the justices said the First Step Act allows district courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence.

In an unusual line-up, conservatives Justices Clarence Thomas and Neil Gorsuch joined the court’s liberal wing in the majority opinion written by Justice Sonia Sotomajor.

The appeal was brought by Carlos Concepcion, who pleaded guilty to crack-cocaine charges and was sentenced to 19 years in federal prison in 2009. That was a year before the 2010 Fair Sentencing Act, which narrowed the disparity between crack- and powder-cocaine penalties. The 2018 First Step Act made the 2010 act’s changes retroactive.

Concepcion wanted a lower sentence under the updated law, which lets judges “impose a reduced sentence as if” the Fair Sentencing Act provisions “were in effect at the time the covered offense was committed.” The Justice Department agreed that he’s eligible for resentencing but disagreed about what factors judges must consider besides the new cocaine penalties.

“It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained,” Sotomayor said. “Nothing in the First Step Act contains such a limitation.”

Concepcion said factors also must account for current law and facts which for defendants, could mean better sentencing guidelines and evidence of their rehabilitation.

Justice Brett Kavanaugh’s dissent was joined by Cheif Justice John Roberts and justices Samuel Alito and Amy Coney Barrett. Kavanaugh argued the text of the First Step Act authorizes district courts to reduce sentences based only on changes to the crack-cocaine sentencing ranges, not other unrelated changes that have occurred since the original sentencing.

Kavanaugh said the court’s disregard of the text of the First Step Act “will create significant and inexplicable sentencing inequities,” noting the law’s sentence-modification proceedings are available only for offenders who were sentenced before Aug. 3, 2010.

The case is Concepcion v. United States, U.S., No. 20-1650.

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editors responsible for this story: Tom P. Taylor at; Seth Stern at; John Crawley at

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