Terry v. United States—a case before the U.S. Supreme Court—seeks 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. In an exciting development, the United States reversed its position in this case: the Department of Justice wrote a letter to the Court saying that it would no longer defend its prior interpretation of the Act because it has concluded that our client “is entitled to request a reduced sentence, and that the court of appeals erred in concluding otherwise.” The Court appointed an amicus to defend the court of appeals’ ruling against our client; the case will be argued in May, and we expect a decision in June.
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.
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 Government, however, argues that those with the lowest level crack offenses are not covered by Section 404’s retroactivity provisions.
Not only is this an inaccurate interpretation of the law’s text, but it is also at odds with the history and intent of Congress when it comes to drug sentences generally, and crack sentences in particular.
For decades, Congress has made clear its objective to punish major drug traffickers more severely than low-level drug offenders. In making the provisions of the Fair Sentencing Act retroactive, the aim was to address the harm and the racial disparity caused under the 100-to-1 regime, under which (largely Black) crack offenders would receive much longer sentences than (largely white) powder cocaine offenders for equivalent amounts of each drug. It would be atextual and illogical to exclude from that relief the lowest-level offenders.
We are proud to be partnering with the Federal Public Defender’s office on this case.