High Court Considers Shorter Sentences for Crack Cocaine Charges

The case hinges on whether possession of a small amount of crack cocaine is covered by the First Step Act’s retroactive reduction of some prison sentences.

The U.S. Supreme Court. (Courthouse News photo/Jack Rodgers)

WASHINGTON (CN) — In its last hearing of the term, the U.S. Supreme Court heard arguments Tuesday over whether people jailed for possession of small amounts of crack cocaine are eligible for a sentencing reduction.

The justices seemed concerned that allowing those offenders to apply for reduced sentences would open the floodgates for other drug offenders to also seek shorter sentences.

Tarahrick Terry was caught with less than four grams of crack cocaine in Florida in 2008, which was enough of the narcotic to add a distributional intent element to his crime, ratcheting his sentence up to 15 years in prison.

The Anti-Drug Abuse Act of 1986 created Terry’s sentencing pitfall. The law dictated that someone caught possessing crack cocaine should be subjected to a prison sentence equivalent to the punishment for possessing 100 times the amount of powdered cocaine.

But in 2018, Congress passed the First Step Act, which allowed sentencing reforms to apply retroactively to covered drug offenders. The 2010 Fair Sentencing Act reduced the 100:1 crack to cocaine sentencing ratio down to 18:1, and the First Step Act made that change retroactive. That allowed crack cocaine offenders who had been charged in higher tiers of possession to apply for resentencing.

The 11th Circuit, however, ruled that Terry had been sentenced appropriately because the Fair Sentencing Act didn’t change sentencing guidelines for his tier of possession, between zero and five grams. The Atlanta-based appeals court held Congress did not intend for offenders like Terry to be eligible for resentencing.

The Justice Department under former President Donald Trump was planning to argue against Terry and in favor of a narrow application of the law for reduced sentences, but the Biden administration changed positions. That led the Supreme Court to appoint an amicus lawyer, Chicago attorney Adam Mortara, to argue against lower sentences.

Andrew Adler, a Florida public defender representing Terry, argued before the justices Tuesday that specific provisions in a section of the First Step Act that deals with retroactive resentencing did not refer to sentencing ranges, but rather quantities of crack cocaine.

“Amicus’ contrary interpretation would make little sense,” Adler said. “It would cover kilogram-trafficking kingpins but exclude the lowest-level dealers. He has failed to offer any coherent explanation as to why Congress would have done that. After all, Congress did not enact bipartisan criminal justice reform to create new anomalies, it enacted section 404 to purge the taint of the 100:1 disparity.”

Chief Justice John Roberts expressed concern with giving tier-three offenders like Terry the ability to be resentenced, asking if the First Step Act covers other types of drug offenders. Adler responded that the sections were specific to crack cocaine.

“I just don’t think that’s a realistic concern here, and in fact no court in the country has granted [section] 404 relief to a non-crack offender and no court in the country will do so if the court rules in our favor here,” Adler said.

Justice Stephen Breyer seemed unconvinced crack offenders sentenced in the same manner as Terry would see any relief if the high court agreed with his and the Biden administration’s position. In questions to Deputy Solicitor General Eric Feigin, Breyer noted Terry’s sentencing included an enhancement as a career offender because of his prior drug convictions and questioned whether his sentence would be any different if he could seek a retroactive reduction.

“Although the career offender guideline hasn’t changed, the drug quantity table has changed for crack,” Feigin said.

“Let me interrupt you right there: the quantity table has nothing to do with career offender [sentencing] guidelines,” Breyer said. “The career offender guidelines are totally separate, I think.”

Feigin also was asked by Roberts why the government had shifted its position in the case. Feigin said that while there are no specific standards the Justice Department applied when making the decision, the government thought its current position was a more sound one than the stance advocated by the previous administration.

Mortara, the court-appointed attorney who argued in support of the 11th Circuit’s ruling against Terry, said that low-level crack offenders already had a chance to fight for shorter sentences after the Fair Sentencing Act’s lower 18:1 ratio was put in place by the U.S. Sentencing Commission in 2011.

But Roberts questioned why Congress would do something “that really makes no practical sense because they felt sure the sentencing commission was going to deal with it with retroactive guidelines.”

“I don’t think it makes no practical sense, Mr. Chief Justice,” Mortara said. “Earl Dickerson of Massachusetts received a mandatory life sentence…because of the crack to powder ratio. He had 57 grams. After the First Step Act, his sentence was reduced to 206 months. That makes perfect practical sense. He was stuck because of the statutory minimum penalties. Section 2 [of the Fair Sentencing Act] modified them for him, the First Step Act made them retroactive.”

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