Crack Cocaine Offender’s Leniency Bid Receives Cool Reception From Supreme Court

May 4, 2021 Updated: May 5, 2021

Low-level crack cocaine defendants should benefit from a 2018 federal law that reduced some prison sentences, the Biden administration told largely unreceptive members of the Supreme Court on May 4.

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

The Biden administration reversed course and now argues that the defendant in the current case, Tarahrick Terry, deserves a sentence reduction. The U.S. Department of Justice reinterpreted Section 404 of the First Step Act, concluding that Terry’s conviction was covered under the section, and he “is entitled to request a reduced sentence,” and the appeals court “erred in concluding otherwise,” the department advised the court in March.

As a U.S. senator, Biden, then the senior Democrat on the Senate Judiciary Committee, was the party’s top point man in Congress on the Anti-Drug Abuse Act of 1986, which he has acknowledged writing, according to The Washington Post. His bill punished possession of one gram of crack cocaine the same as 100 grams of powder cocaine. This 100-to-1 ratio was criticized for years as unscientific and racially discriminatory, ensnaring blacks in large numbers as traffickers even though users at the time were mostly white. The Reagan administration had pressed for a 20-to-1 ratio.

The Fair Sentencing Act of 2010 brought the ratio down to 18 to 1, but only for future cases. The First Step Act, signed in 2018 by Trump, made the change retroactive for some offenders.

Nearly an hour and a half of telephonic oral arguments in the case of Terry v. U.S., court file 20-5904, was heard on May 4.

Terry was sentenced to 15 1/2 years in prison following a guilty plea in Florida in 2008 for one count of possession with intent to distribute 3.9 grams of crack cocaine. He sued, arguing the First Step Act entitled him to a new sentencing. 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.

Oral arguments, which were previously scheduled for April 20, were rescheduled after the Biden administration, which took office Jan. 20, announced on March 15 that it would no longer defend the 11th Circuit ruling, as The Epoch Times previously reported.

With no one left to argue against sentence reduction, the Supreme Court appointed lawyer Adam Mortara to serve as amicus curiae, or friend of the court, to take the position abandoned by the Biden administration.

Terry was represented by Andrew Adler, an assistant federal public defender from Fort Lauderdale, Florida. Deputy Solicitor General Eric Feigin represented the Biden administration.

During oral arguments, Adler said with Section 404 of the First Step Act, “Congress sought to eradicate the stain of the 100-to-1 disparity.”

“To ensure it did not warp anyone’s sentence, Congress gave everyone sentenced under it the opportunity to seek a reduced sentence. … The only people Congress excluded … were those who already received that opportunity. Categorically excluding [certain] offenders would leave the taint intact for those with the smallest quantities. Had Congress intended such a perverse result, it would have said so loudly and clearly.”

Justice Stephen Breyer told Adler that the 100-to-1 ratio was “ridiculous,” but said it had nothing to do with this case. He worried the First Step Act could be used by career criminals to seek resentencing.

“You get me out of this,” he urged Adler. “I’d love to get out of it. I mean, I think they were much too high. I understand that. But I can’t get away from this statute. So you convince me, I hope, that I’m wrong.”

Justice Sonia Sotomayor told Adler she had “difficulties” with his argument.

Chief Justice John Roberts asked Feigin if he disagreed with any aspect of Terry’s position.

“Assuming I’m understanding his position correctly, I don’t think there’s much daylight, if any, between the two of us,” Feigin said.

Justice Brett Kavanaugh, a fan of sports allusions, told Mortara that the crack-powder disparity dates back to the untimely 1986 cocaine-overdose death of Len Bias, a first-team All-American basketball player at the University of Maryland.

“That was a shocking event, particularly in this area. … I was a year younger than he was, looked up to him, like everyone in this area did, and that was a shocking event in this area and ultimately in the country at large and … was really the proximate cause of Congress moving to establish the 100-to-1 ratio,” Kavanaugh said.

During the discussion that followed, Mortara disputed the notion that Terry received an unjustifiably harsh sentence.

“Mr. Terry’s sentence is very long because, like a small-amount methamphetamine dealer who’s also a career offender, career offenders get long sentences.”

Breyer told Mortara that “career offenders” were not free to challenge their sentences “because they were not sentenced under the sentencing guidelines having to do with drugs.”

“They were sentenced under the sentencing guideline having to do with career offenders. Those people—really whether it’s cocaine, methamphetamine, or some other drug—it doesn’t matter. The amounts don’t matter once it’s a felony. So there’s no reason that they should get to ask for resentencing.”

Mortara said he agreed with the points Breyer was making.

“If I’m correct, why did the government argue what it argued?” Breyer said.

“Your Honor, I am here to explain many things. The behavior of the United States Government in this case is not one of them,” Mortara deadpanned.

This was the final oral argument scheduled for the court’s current term, which began in October 2020.