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Supreme Court seems skeptical that law helps all convicted of crack cocaine offenses

People walk past the Supreme Court building in Washington last month. (Daniel Slim/AFP/Getty Images)
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The Supreme Court seemed skeptical Tuesday that a law intended to allow new sentences for those convicted under onerous crack cocaine statutes applies to those with relatively low-level possession convictions.

Across ideological lines, the justices indicated that the wording of 2018’s First Step Act makes resentencing more available to those convicted of possessing large amounts of crack, regardless of whether that was Congress’s intent.

It was the Supreme Court’s last oral argument of the term, as the justices turn now to writing opinions in the cases they have heard since October and selecting new cases for next term.

And it was perhaps the last of the court teleconference hearings, assuming the pandemic subsides in a way that allows the court to return to normal by fall.

Supreme Court takes modest but historic step with teleconference hearings

The 2018 law was one of two Congress has passed to deal with the disparity that made sentences for crack cocaine crimes far more severe than those for powder cocaine. Black defendants were far more likely be convicted of crack crimes, while powder cocaine defendants were more likely to be White.

Liberal Justice Stephen G. Breyer said the disparities were “ridiculous.” But he told the lawyer for Tarahrick Terry, who received a nearly 16-year sentence for possessing less than five grams of crack, that the changes Congress made to the law did not seem to help him. Terry’s prison term is set to expire in September.

“I can’t get away from this statute,” Breyer said, imploring federal public defender Andrew L. Adler to convince him that he was wrong. “I’d love to get out of it,” Breyer had said.

A law Congress passed in 2010 increased from 50 to 280 grams the amount of crack that would trigger the most severe penalties. A second tier, with lesser possible sentences, was increased from five grams to 28 grams. But the section of the law concerning smaller amounts, under which Terry was convicted, was not changed.

From Opinions: I was released under the First Step Act. Here’s what Congress should do next.

Terry argues that the overall revisions necessarily affected him and others sentenced under the old regime and that the 2018 law should give him the chance to also ask for a reduced sentence.

Otherwise, Adler said, the changes “would cover kilogram trafficking kingpins but exclude the lowest-level dealers. . . . Congress did not enact bipartisan criminal justice reform to create new anomalies.”

Justice Sonia Sotomayor noted that there were calls to read the law that way from both liberal and conservative groups, and even from Republican and Democratic members of Congress involved in passing the First Step Act.

But she also doubted Adler’s assertions to Chief Justice John G. Roberts Jr. that the law was clear.

“You told the chief your reading was unambiguous, but I don’t think so,” Sotomayor said. She questioned why the other side’s position was not “simpler and more direct.” “If you sold five grams or less, your penalty remains the same before and after,” she said.

Which side the government is on is one of the curiosities of the case.

Trump boasts that his landmark law is freeing these inmates. His Justice Department wants them to stay in prison.

The First Step Act was frequently touted by President Donald Trump as one of his accomplishments on behalf of African Americans, noting it in a State of the Union address and on the campaign trail.

But his Justice Department took a narrower reading and said it did not cover resentencing requests from Terry and other similarly situated defendants. The department estimates that perhaps several hundred people are excluded.

The question has divided lower courts, and the Supreme Court took the case to settle it. But the administration changed, and on the day the government’s brief was due, President Biden’s acting solicitor general, Elizabeth B. Prelogar, told the justices the department’s position had changed as well.

It now said Terry had the proper reading of the law. Because of the change in position, the court had to delay the hearing to appoint a lawyer to take the adversarial position.

Roberts noted that a change in administration can bring a shift in position but pressed Justice Department lawyer Eric J. Feigin to explain what went into changing this one.

Feigin declined to provide details but said that eventually the department decided the new position better fit what “Congress was trying to accomplish here, which is to try to identify the group of offenders whose sentences might plausibly have been affected by the discredited racially disproportionate” difference in how crack and powder cocaine offenses were treated.

But Adam K. Mortara, a Chicago lawyer appointed by the court, said it made sense that Congress was trying to target cases that were most egregious. He mentioned a Massachusetts man who, because of previous convictions, received a mandatory life sentence for possession of 57 grams of crack. His sentence was reduced to 17 years.

“That makes perfect practical sense,” Mortara said.

The case is Terry v. United States.