First Step Act's Authors Tell Justices Courts Are Misreading It

By Jimmy Hoover | February 22, 2021, 8:34 PM EST

The senators who wrote the First Step Act of 2018 have told the Supreme Court that they did not intend to exclude low-level crack offenders from the law's sentencing relief, contrary to the findings of some circuit courts across the country.

Since President Donald Trump signed it into law, four circuits have agreed with federal prosecutors that the landmark criminal justice reform bill applies only to those serving sentences for large quantities of crack, leaving those in prison for small amounts unable to revisit their sentences. Two other circuits, meanwhile, have reached the opposite conclusion and have extended relief to low-level offenders.

The Supreme Court has agreed to review this circuit split on the retroactivity of the law and is expected to hold oral arguments in April.

Ahead of the hearing, a broad coalition of liberal and conservative groups is supporting 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.

In addition, the four senators who are largely responsible for the sentencing reforms in the First Step Act have filed an amicus brief in the high court supporting Terry's case. Sens. Richard Durbin, D-Ill., Charles E. Grassley, R-Iowa, Cory Booker, D-N.J., and Mike Lee, R-Utah, told the justices that those provisions were instrumental to the law's passage and that Congress had always meant to extend that relief to those convicted of small quantity offenses.

"The text Congress enacted makes retroactive relief broadly available to all individuals sentenced for crack-cocaine offenses before the Fair Sentencing Act," the senators wrote in a brief filed Friday. "Had Congress intended to exclude individuals with low-level crack offenses from relief, Congress of course could have done so."

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 Eleventh Circuit held that they do not and ruled against Terry, deepening a split among the courts that now makes the availability of sentencing relief under federal law dependent upon which circuit the defendant is located in. The Eleventh Circuit joined the Third, Sixth and Tenth circuits to read the retroactivity provision narrowly, while the First and Fourth circuits have said that all crack offenses are eligible for relief.

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.

In its lower court and December brief opposing Terry's position, the government said that the 2010 law did not explicitly change the statutory provision 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.

The government says that the penalties for Tier 3 offenses were therefore not modified and are not covered offenses that are eligible for resentencing. Terry, along with the senators who wrote the law, say that if Congress wanted to write such a narrow retroactivity provision, it would have used the more technical term "amended" rather than "modified."

"Congress instead selected the word 'modified' — with the broader meaning that word imports," the senators wrote. "By disregarding the difference between those two words, the Eleventh Circuit again flouted basic principles of interpretation that Congress expects courts to follow."

The government has yet to file its opening merits brief in the case, and it is possible that President Joe Biden's acting solicitor general could change the government's position in the case to extend sentencing relief to low-level crack offenses, even if such changes are rare in criminal cases.

A spokeswoman for the office declined to comment Monday.

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.

The government is represented by Elizabeth Prelogar of the U.S. Department of Justice.

The senators are represented by Zachary C. Schauf, Elizabeth B. Deutsch, Noah B. Bokat-Lindell and Urja Mittal of Jenner & Block LLP.

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

--Editing by Adam LoBelia.

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