The US Supreme Court heard oral arguments in the final case of its term on Tuesday in Terry v. United States, about reductions of prison sentences for certain crack cocaine offenses.
In 2008 Tarahrick Terry was arrested and charged under 21 USC § 841(a)(1) for carrying just shy of 4 grams of crack cocaine, and sentenced under 21 USC § 841(b)(1)(B), a statute created under the 1986 Anti-Drug Abuse Act, which created a 100 to 1 disparity in sentencing crack cocaine versus powder cocaine. The Act created three tiers of drug possession, and Terry was sentenced under the third and lowest tier. The wide discrepancy in sentencing came to be understood as unjust and inherently racist, as Black offenders were more likely to be charged and sentenced under the crack cocaine statute, while white offenders who had similar amounts of powder cocaine received much lighter sentences.
In 2010 Congress passed sentencing reforms that reduced the sentencing disparity to 18 to 1, and in 2018 they passed the First Step Act, which made the previous sentencing reform retroactive and made offenders eligible to be resentenced. However, when Congress passed the reform, they only changed the text of the first two tiers of sentencing, not the third tier under which Terry was sentenced. Because of that, the previous administration took the position that offenders sentenced under tier three were not eligible for resentencing. The Biden administration, on the other hand, has taken the position that the First Step Act does in fact cover the lowest level offenders, which led to the court rescheduling the argument in Terry v. United States and appointing an outside counsel, Adam Mortara, to argue in favor of the US Court of Appeals for the Eleventh Circuit’s decision that denied Terry resentencing.
The justices on Tuesday appeared worried that a decision in favor of Terry could lead to a grant of resentencing in a wide variety of drug cases, not just those involving crack cocaine. Assistant Federal Public Defender Andrew Adler tried to reassure the court that the scope of relief was in fact limited, while arguing that the text of the statute, the legislative history, and common sense were all strongly in favor of the conclusion that Congress intended to change the third tier of sentencing when it changed the other two.
The justices also pressed on Deputy Solicitor General Eric Feigin, arguing on behalf of the government, to explain why the Biden administration did an about-face in favor of Terry’s reading of the statute when the previous administration had held that the text of the statute was clear that reform did not apply to the lowest tier. He listed a number of factors that went into the government’s reconsideration, and said that the decision by the previous administration was “ultimately unsound.”
For his part, Mortara argued that the text of the statute is clear and that if Congress had intended to alter the third tier it would have expressly done so, as it did with the first and second tiers. He argued that Congress had provided relief for the higher tiers because because that is where the sentencing disparity would be the most disproportionate, while leaving the lowest level of sentencing untouched.
A decision is expected this summer.