High Court Denies Sentence Reduction to Light Crack Offenses

WASHINGTON (CN) — Crack cocaine offenders are only eligible for reduced sentences under the First Step Act if they were convicted of a drug possession charge that came with a mandatory minimum sentence, the Supreme Court ruled Monday.  

Tarahrick Terry was arrested with less than 4 grams of crack cocaine in Florida in 2008 — enough of the narcotic to add a distributional-intent element to his conviction and condemning him to prison for 15 years. 

The Anti-Drug Abuse Act of 1986 created Terry’s problems. That law created the infamous 100:1 sentencing disparity for powder or crack cocaine users, punishing those with the cheaper base substance as if they’d possessed 100 times the amount of the more expensive powdered drug. 

In 2018, Congress passed the First Step Act, which allowed for sentencing reforms to apply retroactively to drug offenders. But the 11th Circuit ruled Terry had been sentenced appropriately — the Fair Sentencing Act didn’t change the guidelines for tiers of possession between zero and 5 grams. Offenders like Terry weren’t eligible for resentencing, the court ruled.

On Monday, the high court affirmed that decision with near unanimity.

Terry’s offense “is starkly different from the offenses that triggered mandatory minimums," Justice Clarence Thomas wrote in the lead opinion, joined by all but Justice Sonia Sotomayor, who concurred only in part and in judgment. The high court heard the case in a rare May sitting, the last argument of their term.

While the First Step Act altered two of the sentencing minimums for varying levels for crack offenders — one for persons caught with 280 grams of the substance and another for those with at least 5 grams — no penalties had been softened for low-level offenders.

Terry did not sway the high court, however, that the law's reference to “statutory penalties” implicated the “penalty statute” or sentencing scheme.

“As stated above, ‘statutory penalties’ references the entire phrase ‘a violation of a Federal criminal statute,’” Thomas wrote. “It thus directs our focus to the statutory penalties for petitioner’s offense, not the statute or stator scheme.”

Sotomayor wrote separately to “clarify the consequences of today’s decision” — emphasizing the impact not only on Terry, who absent political intervention will never be able to appeal for a reduced sentence, but on individuals who were disproportionally affected by the law.

“Under the 1986 law, crack cocaine sentences were about 50 percent longer than those for powder cocaine,” Sotomayor wrote. “Black people bore the brunt of this disparity. Around 80 to 90 percent of those convicted of crack offenses between 1992 and 2006 were Black, while Black people made up only around 30 percent of powder cocaine offenders in those same years.”

Sotomayor also noted how the Fair Sentencing Act radically reduced a drug offender’s culpability for crack possession — and discussed how such changes could have impacted Terry’s case if the court determined he was eligible.

“For example, Terry’s 3.9 grams of crack cocaine (less than the weight of four paperclips) led to a preenhancement base offense level of 20 and was just shy of the five grams that triggered a 5-year mandatory minimum,” Sotomayor wrote. “He would have received the same base offense level for selling 390 grams of powder cocaine (about the weight of a full can of soda). After the Guidelines amendments, those 3.9 grams are nowhere near the 28 grams that now trigger the mandatory minimum, and his preenhancement base offense level would be just 16, the same as for selling 70 grams of powder cocaine (about the weight of two lightbulbs).” (Parentheses in original.)

Florida-based federal public defender Andrew Adler represented Terry. Neither he nor the Justice Department responded to requests for comment Monday.

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