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March 15, 2021

Acting SG tells SCOTUS that new administration now supports broad application of crack retroactivity provision of FIRST STEP Act in Terry

Earlier this year, the Supreme Court granted cert in Terry v. United States, No. 20-5904, which concerns which crack offenders have a so-called "covered offense" under Section 404 of the FIRST STEP Act to allow for their retroactive resentencing.  Today, thanks to a heads up from a helpful colleague, I learned that the Acting Solicitor General sent this important short letter to the Supreme Court concerning the government's position in the Terry case.  Here are the key passages:

In its brief in opposition to certiorari, filed on December 4, 2020, the United States argued that petitioner lacks a “covered offense” as defined in the First Step Act.  The purpose of this letter is to notify the Court that the United States has reconsidered that position and will no longer defend the judgment of the court of appeals.

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.

In light of the government’s current position, the Court may wish to appoint an amicus curiae to defend the judgment below.  The case is currently scheduled for oral argument on April 20, 2021.  According to the Federal Bureau of Prisons, petitioner is scheduled to complete the remainder of his term of imprisonment, which he will serve almost entirely on home confinement, on September 22, 2021.  At that time, he will begin serving a six-year term of supervised release, which is the minimum term of supervised release permitted under 21 U.S.C. 841(b)(1)(C) for his offense.  Were the case not to be decided before September 22, a question of mootness would arise that would need to be addressed before any decision on the merits.

SCOTUS mavens will better know if the Justices might just remand this particular case rather than try to appoint an amicus at this stage of the proceedings. (Nerd joke alert: will we see a different kind of Terry stop here?)  But, whatever SCOTUS does, it is big news that the new Administration is open to a broader application of the FIRST STEP Act here, and I am hopeful that this kind of Justice Department new thinking may end up being applied in a whole host of other sentencing settings.

March 15, 2021 at 11:51 AM | Permalink


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