Terry v. United States—a case before the U.S. Supreme Court—sought to correct the unfair and incorrect exclusion of low-level crack offenders from relief clearly provided by the bipartisan First Step Act, passed by Congress in 2018. The United States reversed its position in this case, and filed a brief supporting our position. The Court appointed an amicus to defend the court of appeals’ ruling against our client.
In addition to the United States, our position has received a broad and diverse group of amici support—consistent with the support of the 2018 criminal justice reform bill from groups from across the political and ideological spectrum. Specifically, seven separate amici curiae briefs were filed in support of our argument that low-level crack offenders are eligible for resentencing relief. You can read more about the amici support we received in the case here and here.
The Fair Sentencing Act of 2010 reduced the sentencing disparity between crack and powder cocaine from 100-to-1 to 18-to-1.
Under Section 404 of the First Step Act (in 2018), Congress made these sentencing reforms retroactive, making offenders sentenced prior to the Fair Sentencing Act eligible for resentencing under the new regime. There is, in fact, no disagreement over the eligibility of offenders with the most serious charges who were sentenced prior to the Fair Sentencing Act. The court-appointed amicus, however, argued that those with the lowest level crack offenses are not covered by Section 404’s retroactivity provisions.
Unfortunately, the Court agreed with amicus, and ruled against our position (and that of the United States), concluding that the text of the statute did not apply to low-level crack offenders like Mr. Terry. In a concurring opinion, Justice Sotomayor called on Congress to fix the statute.
We are proud to have partnered with the Federal Public Defender’s office on this case.