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Justices Mull First Step Act Resentencings in Crack Cases (1)

Jan. 19, 2022, 6:43 PMUpdated: Jan. 19, 2022, 9:00 PM

The Supreme Court considered multiple options for how judges should handle crack-cocaine resentencings, with some justices exploring an approach that neither side advocated.

How the court decides the dispute, argued Wednesday, could affect thousands of prisoners trying to reduce stiff prison terms imposed under the Reagan-era drug-war regime that disproportionately impacted Black people.

The appeal was brought by Carlos Concepcion, who pleaded guilty to crack-cocaine charges in 2008 and, in 2009, was sentenced to 19 years in federal prison. That was just 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 wants a lower sentence under the 2018 act, 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 agrees he’s eligible for resentencing but disagrees about what factors judges must consider besides the new cocaine penalties.

Concepcion says they also must account for current law and facts, which, for defendants, could mean better sentencing guidelines and evidence of their rehabilitation. As a backup, Concepcion said judges can, but don’t have to, consider those things, a position the government largely agreed with.

At the argument, the court explored both options and also examined a different route entirely.

Justice Neil Gorsuch pressed the government as to why it wasn’t arguing that judges could only consider the cocaine changes. Justice Amy Coney Barrett and Chief Justice John Roberts asked similar questions.

“The whole point of the statute, the background, the structure, the purpose, was limited,” Roberts said of the First Step Act.

Justice Samuel Alito suggested the government’s approach was like driving “on the dividing line of a two-lane highway.” He asked assistant to the solicitor general Matthew Guarnieri to pick a lane.

Guarnieri said the government “would prefer to live in a world in which the district court would have to take into account post-sentencing developments.” But he said that’s “principally because, in many, many of these cases, we do rely on arguments about post-sentencing misconduct by the defendant, and we would not want to take those off the table.”

Justice Brett Kavanaugh raised a different disparity concern: that, under Concepcion’s approach, some crack defendants would get benefits unrelated to crack laws that others don’t. “What about the defendants who are in prison for armed robbery?” Kavanaugh asked.

Concepcion’s lawyer, Luke McCloud, said “Congress has acted here in a very significant way to give a substantial benefit to the crack offender.”

As for the potential that judges approach resentencing differently, McCloud said, “Our sentencing system isn’t perfect and it relies on imperfect human beings to make these decisions about other imperfect human beings standing before them.” He said “there will be some variation in—in the decisions that get made. I think that’s true under any possible rule in this case, though.”

The disparity addressed by the First Step Act stemmed from the Reagan-era 100:1 ratio that, without scientific basis, punished crack more harshly than powder. The Fair Sentencing Act narrowed the disparity to 18:1. The EQUAL Act (H.R. 1693) would eliminate the disparity; advocates are pushing the Senate to pass the bill after it cleared the House last year.

Concepcion is backed by an ideologically diverse coalition including, among others, the ACLU, American Conservative Union, Howard Law School’s civil-rights clinic, Harvard Law’s religious-freedom clinic, and the Koch-backed Americans for Prosperity. He’s set for release in March 2024, according to the Bureau of Prisons. A decision is expected by July.

The case is Concepcion v. United States, U.S., No. 20-1650, oral argument 1/19/22.

(Updates with additional argument details, transcript. )

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