Justices Press DOJ Over 180 In Crack Case

By Jimmy Hoover | May 4, 2021, 7:04 PM EDT

The Biden administration's 180-degree turn in a case about crack sentencing disparities appears to have caught several U.S. Supreme Court justices off guard, with Chief Justice John Roberts and Justice Amy Coney Barrett pressing a government attorney during oral arguments Tuesday to explain the Department of Justice's process for changing positions.

In the case Terry v. U.S. before the Supreme Court, the Biden administration abandoned the Trump administration's argument that certain people serving time in prison for low-level crack offenses are ineligible for reduced sentences under the First Step Act of 2018.

The government is now supporting the appeal of petitioner Tarahrick Terry, who is serving a 15-year sentence for possession with intent to distribute 3.9 grams of crack. If allowed to reopen his sentence, Terry could be eligible for immediate release under new sentencing rules.

The late change spurred the justices to push back the hearing to May to accommodate an outside attorney that they appointed to argue the government's previous position.

Deputy Solicitor General Eric Feigin faced tough questions during Tuesday's telephonic arguments over the administration's new position that low-level crack offenders with prior felonies like Terry are, in fact, eligible to seek reduced sentences under the law. Several members of the court, including liberals like Justice Stephen Breyer, expressed skepticism of the government's reading of the First Step Act's retroactivity provision.

Chief Justice Roberts, however, did more than scrutinize the administration's new position; he wanted to know why the government changed positions in the first place.

"In this case, the [Department of Justice] switched its position from being the respondent to supporting the petitioner," Roberts said. "Prior administrations have done that. Subsequent administrations are going to do that. But I wondered what standard your office applies in deciding when to take that step. Is it just that you think the position is wrong and you would have reached a different one?"

Feigin said the U.S. solicitor general's office doesn't have a "specific set of procedures or guidelines that I could publicly share."

"Let me just say that in this case, very much due consideration was given to this within the department, and the department determined that the prior position wasn't as sound as the position that we're advocating now," Feigin said, outlining "three factors" that caused the government to embrace the petitioner's more inclusive reading of the First Step Act's retroactivity provision.

Justice Amy Coney Barrett echoed Chief Justice Roberts' concerns.

"You changed [positions] pretty late," she said to Feigin. "It was the day your brief was due."

Justice Barrett wanted to know if the government found its previous reading of the statute "implausible" or if its new position was simply "the better interpretation" of an ambiguous statute.

"The latter, Your Honor," Feigin said.

The court decided to review Terry's petition in January. The government didn't file its letter informing the court of its change in position until March 15, just over a month before arguments were set to take place on April 20. After receiving the letter, the Supreme Court moved the case from its April argument calendar to a special May session to accommodate lawyer Adam Mortara, whom the court appointed as amicus counsel to argue the government's old position in the case.

Justice Stephen Breyer asked Mortara what he made of the government's interpretation of the First Step Act.

"If I'm correct, why did the government argue what it argued? They know these [issues] as well as I do, probably better," the justice said.

"Your Honor, I am here to explain many things," Mortara said. "The behavior of the United States government in this case is not one of them."

Favoring Kingpins? 'Why Would Congress Want That?'

The case involves Congress' recent efforts to address the wide sentencing disparity between crack and powder cocaine offenses, which has disproportionately affected African Americans. Congress first tackled the issue in the Fair Sentencing Act of 2010 by raising the quantities of crack possession that would trigger sentencing enhancements.

But Congress did not make the new quantity ranges retroactive to pre-2010 offenses until it passed the First Step Act in 2018, when it allowed judges to revisit sentences for "covered offenses." The question at issue in Terry's case is whether low-level crack offenses qualify as covered offenses.

The dispute arises from the language of the First Step Act's retroactivity provision, which defines "covered offenses" as those for which the statutory penalties were "modified" by the Fair Sentencing Act of 2010.

The Trump administration, and now Mortara, argued that the 2010 law did not explicitly change the statutory penalty for small-quantity crack offenses and therefore they do not qualify.

Specifically, the law changed the range of Tier 1 offenses from 50 grams and above to 280 grams and above, and changed the range of Tier 2 offenses from between 5 and 50 grams to between 28 and 280 grams.

As a result, Tier 3 offenses went from those between 0 and 5 grams to those between 0 and 28 grams. However, that was only the practical effect of the changes to Tiers 1 and 2; Congress did not actually change the text of the Tier 3 provision.

Terry, the government, and a bipartisan coalition including both Republican and Democratic senators say that Congress intended to extend sentencing relief to low-level crack offenders.

"Amicus's contrary interpretation would make little sense," argued Terry's lawyer, assistant federal public defender Andrew L. Adler. "It would cover kilogram trafficking kingpins but exclude the lowest-level dealers."

Although the justices appeared skeptical of Adler's interpretation of the statutory language, they did seem sympathetic to the argument about Congress' intentions in passing the First Step Act. Chief Justice Roberts said Mortara's argument allows large-quantity crack offenders to seek reduced sentences, but not "the least culpable offenders."

"Why would Congress want that, want to implement that result?" he asked.

And Justice Brett Kavanaugh asked Adler how much 3.9 ounces of crack cost in 2008 at the time of Terry's arrest. Adler said it was probably worth about $50. Justice Kavanaugh then raised that point during Mortara's argument.

"I asked about the costs. Fifty dollars," he said. "And assume it's a few hundred dollars, it's still a low amount that we're talking about here, not the kind of situation that I think most people have in mind when they think about lengthy sentences for federal sentencing."

Mortara, concluding his argument, said the justices could not ignore the plain language of the statute and give all their attention to arguments about what Congress intended.

"I will sum up with the court's words from last Thursday in Niz-Chavez , 'A rational Congress could reach the policy judgment the statutory text suggests it did; and no amount of policy-talk can overcome a plain statutory command,'" he said, quoting Justice Neil Gorsuch's opinion in an immigration ruling on deportation notices.

Terry is represented by Michael Caruso, Andrew L. Adler and Brenda G. Bryn of the Federal Public Defender's Office and Amir H. Ali and Devi M. Rao of the Roderick & Solange MacArthur Justice Center.

Serving as amicus counsel to defend the lower court ruling is lawyer Adam Mortara.

The government is represented by acting Solicitor General Elizabeth Prelogar and Deputy Solicitor General Eric Feigin.

The case is Terry v. U.S., case number 20-5904, in the U.S. Supreme Court.

--Editing by Marygrace Murphy.

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