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June 14, 2021

SCOTUS rules in Terry that lowest-level crack offenders cannot secure resentencing based on FIRST STEP Act retroactivity of Fair Sentencing Act

Continuing to make quick work of its criminal docket, the Supreme Court's second criminal ruling today comes in Terry v. US, No. 20– 5904 (S. Ct. June 14, 2021) (available here), and it serves to limit the offenders who can secure resentencing based on crack penalties being lowered by the Fair Sentencing Act and then made retroactive by the FIRST STEP Act. Here is how Justice Thomas's opinion for the Court in Terry gets started:

In 1986, Congress established mandatory-minimum penalties for cocaine offenses.  If the quantity of cocaine involved in an offense exceeded a minimum threshold, then courts were required to impose a heightened sentence.  Congress set the quantity thresholds far lower for crack offenses than for powder offenses.  But it has since narrowed the gap by increasing the thresholds for crack offenses more than fivefold.  The First Step Act of 2018, Pub. L. 115–391, 132 Stat. 5194, makes those changes retroactive and gives certain crack offenders an opportunity to receive a reduced sentence.  The question here is whether crack offenders who did not trigger a mandatory minimum qualify.  They do not.

Justice Sotomayor has an extended concurring opinion in Terry (it is a bit longer than the majority opinion).  She explains at the start of this opinion that she writes separately "to clarify the consequences of today’s decision.  While the Fair Sentencing Act of 2010 and First Step Act of 2018 brought us a long way toward eradicating the vestiges of the 100-to-1 crack-to-powder disparity, some people have been left behind."

I will likely have a lot more to say about this Terry ruling and its potential echoes once I get a chance to read it more closely.

June 14, 2021 at 10:31 AM | Permalink


She also also wrote separately, however, to note why she did not join Part I of Thomas's opinion for the Court, writing that "it includes an unnecessary, incomplete, and sanitized history of the 100-to-1 ratio" for crack-to-powder cocaine. Dropping a long footnote.

Interesting Thomas (less likely to toss such stuff when he writes for the majority; there his opinions often are more bland) included that in his opinion of the Court.

Posted by: Joe | Jun 14, 2021 10:34:51 AM

Also interesting that apparently none of the other Justices—including Kagan and Breyer—had any problem with joining Part I.

Posted by: hardreaders | Jun 14, 2021 11:21:50 AM

Not quite how you wanted it to go, but ...

"Senate confirms US District Court judge Ketanji Brown Jackson, President Biden's 1st Circuit Court nominee, to serve on US Court of Appeals for DC Circuit. She replaces Judge/now AG Merrick Garland. 3 Republicans Collins, Graham and Murkowski voted Yes with all Democrats."

Posted by: Joe | Jun 14, 2021 7:26:50 PM

Way to go KBJ. Graham is a touch surprising; otherwise not a very surprising lineup.

Posted by: hardreaders | Jun 14, 2021 11:05:51 PM

SCOTUSBlog now has an opinion analysis and part of it is basically saying "well it isn't that obvious" (after all key backers, from both parties, submitted a brief going the other way as did the Biden Administration) the text compels the result.

I won't pretend to know better than a unanimous Supreme Court here, but I know I have disagreed on what they did in the past. As to Sotomayor going along, that easily can be what she sometimes does -- is concerned with the result, but accepts it in part probably because she doesn't have the votes. Dissenting strategically is often not worth it there.

But, SCOTUS did their job, providing a national rule interpreting federal law. Time for Congress to amend it.

Posted by: Joe | Jun 16, 2021 1:09:32 PM

For the record, Joe, I think SCOTUS got this wrong because they were unwilling to consider the purposes and goals of the provisions in order to give sensible meaning to the text. But these days, a simplistic approach to the text dominates even if it creates a kind of scrivener's error in light of the purposes of the provision. Will see if this ends up helping defendants with respect to other parts of the FIRST STEP Act now splitting circuits...

Posted by: Doug B. | Jun 16, 2021 2:30:27 PM

I very well can see the "simplistic" issue being a problem.

It's all "the text is obvious" and fears that doing more is too subjective and policy-laden, but darn if the result still comes off as somewhat subject and policy-laden. Alito called them out recently about over doing it with textual analysis rules. Sotomayor's criticism also suggests how debatable stuff leaks in.

We should just admit judges as humans and that some policy and judgment calls are going to be mixed in. Ditto when we have confirmation hearings, like for the former prosecutor that got some pushback just confirmed for the New York Court of Appeals.

Prof. Victoria Nourse, who I think should be on the Court of Appeals now, has written and spoke eloquently on how judges should handle statutes. /preachoff

Posted by: Joe | Jun 16, 2021 8:06:22 PM

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