Biden DOJ Reverses Position on Crack Cocaine Appeal Before Supreme Court

March 17, 2021 Updated: March 17, 2021

Low-level crack cocaine defendants should benefit from a 2018 federal law that reduced prison sentences for certain offenses, the Biden administration advised the Supreme Court, distancing itself from a more hardline position taken by the Trump administration.

Although then-President Donald Trump signed the criminal justice reform measure known as the First Step Act into law, his administration held the view that possession of a small amount of crack cocaine wasn’t covered under the statute.

Acting Solicitor General Elizabeth Prelogar let the high court know in a March 15 letter about a pending case that the new administration has reversed course and now takes the position that defendant Tarahrick Terry qualifies for a sentence reduction.

“The purpose of this letter is to notify the Court that the United States has reconsidered that [Trump administration] position and will no longer defend the judgment of the court of appeals,” Prelogar wrote.

“Following the change in Administration, the Department of Justice began a process of reviewing the government’s interpretation of Section 404 of the First Step Act. As a result of that review, the Department of Justice has concluded that petitioner’s conviction is a ‘covered offense’ under Section 404, that petitioner is entitled to request a reduced sentence, and that the court of appeals erred in concluding otherwise.”

The case is Terry v. U.S., court file 20-5904. Oral arguments are scheduled for April 20.

Terry was sentenced to 15 1/2 years in prison after entering a guilty plea in Florida in 2008 for one count of possession with intent to distribute 3.9 grams of crack cocaine. In his current appeal, the U.S. Court of Appeals for the 11th Circuit ruled against him on Sept. 22, 2020. Six days later he filed a petition with the Supreme Court seeking review, which the Trump administration opposed. The court agreed on Jan. 8 to hear his case.

Conservative groups Americans for Prosperity Foundation, The R Street Institute, and the American Conservative Union, which runs the annual Conservative Political Action Conference (CPAC), filed friend-of-the-court briefs supporting Terry’s position.

The District of Columbia, along with Colorado, Delaware, Illinois, Iowa, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington also signed onto a brief supporting Terry.

A bipartisan quartet of U.S. senators also filed a brief in favor of Terry. Sens. Dick Durbin (D-Ill.) and Cory Booker (D-N.J.), along with Sens. Charles Grassley (R-Iowa) and Mike Lee (R-Utah), argued that the First Step Act’s “reforms to reduce the sentencing disparities for individuals convicted of crack-cocaine offenses” were “central” to the law.

Section 404 of the statute provides “retroactive relief … for individuals sentenced based on the old 100-to-1 crack-to-powder ratio that Congress repudiated.”

At the time he signed the First Step Act, Trump said it constituted “an incredible moment” for “criminal justice reform.” He singled out the sentencing reforms included in it, saying “Americans from across the political spectrum can unite around prison reform legislation that will reduce crime while giving our fellow citizens a chance at redemption, so if something happens and they make a mistake, they get a second chance at life.”

Friend-of-the-court brief signer Grassley hailed the legislation at the time as “historic” and “the most significant criminal justice reform bill in a generation.”