Koch-Backed Group Urges ‘Second Chance’ in SCOTUS Drug Case

Feb. 20, 2021, 12:51 AM

A diverse coalition of groups that includes the Koch-backed Americans for Prosperity Foundation wants the Supreme Court to rule for the criminal defendant in a case coming up for argument and decision this term.

The case, Terry v. United States, “is about whether individuals who have languished in prison for committing low-level crack offenses deserve a chance at a second chance more than a decade after they were originally sentenced,” the limited-government group said in an amicus brief. “We believe the answer must be ‘yes.’”

Its brief is among several filed Friday supporting Tarahrick Terry’s sentencing quest by, among others, the American Conservative Union, the ACLU, and a bipartisan group of senators who voted to pass the law at issue, the 2018 First Step Act.

The big tent of support for Terry mirrors bipartisan efforts to pass the Donald Trump-signed law as well as criminal justice reform efforts more broadly, which can break through partisan divides.

Whether Terry and other low-level offenders sentenced prior to the 2010 Fair Sentencing Act can get another look at their stiff prison terms depends on the justices finding their offenses “covered” under the 2018 act.

Covered offenses are ones whose penalties were “modified” by the 2010 act. But the government argues, and the appeals court in Terry’s case held, that his crime isn’t covered because the 2010 act wasn’t modified for low-level offenses like his. Appeals courts are split on the issue.

Courts have held higher-level offenses covered under the act, so not giving the benefit to lower-level offenders like Terry would be a “perverse result,” his lawyers argue. He’s represented by Florida federal public defenders and the MacArthur Justice Center.

The case will likely be argued in April, with a decision expected by summer.

After getting caught with 3.9 grams of crack and pleading guilty in 2008, Terry was sentenced to more than 15 years in prison, a term that sets him for release in September, according to the Bureau of Prisons.

The amicus brief from the ACLU, the NAACP Legal Defense and Educational Fund, Inc., and other groups highlights other people who’d stand to benefit, like Trentavius Arline, who pleaded guilty to selling 500 milligrams to 1 gram of crack cocaine for $40, was sentenced to almost 16 years, and remains in prison after almost 11 years.

In its Dec. 4 brief opposing high court review, the Justice Department said it’s unlikely Terry would receive a better term at a re-sentencing, noting his prior criminal history and status as a “career offender.”

The case is Terry v. United States, U.S., No. 20-5904, briefs filed 2/19/21.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Tom P. Taylor at jcrawley@bloomberglaw.com; Seth Stern at sstern@bloomberglaw.com; John Crawley at sstern@bloomberglaw.com

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