In a case the Supreme Court heard yesterday, Tarahrick Terry, who received a sentence of more than 15 years after he was caught with less than four grams of crack cocaine, argues that a 2018 sentencing reform bill makes him eligible for a shorter term. The U.S. Court of Appeals for the 11th Circuit rejected that claim last September. The Justice Department, which initially said the 11th Circuit was right to do so, switched sides in March.
Because of that reversal, the Supreme Court appointed Chicago lawyer Adam Mortara to defend the 11th Circuit's ruling. Deputy Solicitor General Eric Feigen, meanwhile, joined Terry's lawyer, federal public defender Andrew Adler, in arguing that the 11th Circuit's decision should be reversed.
Confusing, right? I'm just getting started. The background to Terry v. United States is even more bewildering. But it is par for the course in the war on drugs, which piles one cruel absurdity on top of another, producing a scheme of punishments so complex and illogical that it is difficult to say what the law requires or allows.
In 2008, Terry pleaded guilty to "possessing with the intent to distribute" 3.9 grams of crack cocaine, an amount that weighed about as much as four paper clips. Partly because of a prior drug conviction, he was sentenced to 188 months in federal prison. That's about four years per gram or, according to an estimate by the Drug Enforcement Administration (DEA), somewhere between five months and two years per "dosage unit."
At the time, federal law treated smokable cocaine as if it were 100 times worse than snorted (or injected) cocaine, even though these are simply different ways of consuming the same drug. Five grams of crack—10 to 50 "dosage units," per the DEA—triggered the same five-year mandatory minimum sentence as 500 grams of cocaine powder—1,000 to 5,000 "dosage units." Similarly, the 10-year mandatory minimum required five kilograms of powder but only 50 grams of crack.
Terry's 3.9 grams did not qualify him for either of those mandatory minimums. But the dubious congressional judgment about crack's supposedly unique hazards likely played a role in his sentence, which was near the high end of the range recommended by federal guidelines.
The 100-to-1 crack/powder ratio, a product of the 1980s crack panic, was created by the Anti-Drug Abuse Act of 1986, one of many draconian laws that President Joe Biden championed as a senator. It soon became apparent that the distinction between crack and cocaine powder, which never made any pharmacological sense, had a disproportionate impact on African-American defendants. Blacks accounted for 85 percent of federal crack defendants in 2000, for example, but only 31 percent of cocaine powder defendants.
Largely because of that stark racial disparity, Biden eventually had a change of heart about the 100-to-1 ratio. Two decades after he wrote the law that established it, he introduced a bill that would have eliminated it.
Biden's bill went nowhere. But three years later, after Biden became vice president, Congress approved and President Barack Obama signed the Fair Sentencing Act of 2010, which replaced the 100-to-1 powder/crack ratio with an 18-to-1 ratio. If you do the math, you will see that crack penalties are now 82 percent less insane than they used to be. The change did not apply retroactively, however, so it provided no relief for thousands of crack offenders who were already serving sentences that nearly everyone by then agreed were too long.
The FIRST STEP Act, which President Donald Trump signed into law in December 2018, remedied that omission by making crack offenders sentenced prior to the Fair Sentencing Act eligible for resentencing. Although many of those prisoners had already been released at that point, 2,387 qualified for shorter sentences under the FIRST STEP Act's retroactivity provision the year after the law was enacted. The question that the Supreme Court confronted yesterday was whether Tarahrick Terry also qualifies for such relief.
During the Trump administration, the Justice Department took the position that prisoners like Terry were out of luck. The FIRST STEP Act allows resentencing in cases where the "statutory penalties" were "modified" by the Fair Sentencing Act. Since Terry's sentencing range (0 to 20 years) would be the same today as it was in 2008, the Justice Department reasoned, he did not meet that criterion. Four federal appeals courts—including the 11th Circuit, which heard Terry's case—concurred with that interpretation.
The 1st Circuit, the 4th Circuit, and the 7th Circuit disagreed. Since the Fair Sentencing Act raised the threshold for the five-year mandatory minimum from five grams to 28 grams, they noted, it necessarily raised the ceiling for the sentencing tier below that. Hence the "statutory penalties" that apply to crack offenders in Terry's situation were indeed "modified."
That is also the position the Justice Department is now taking. In a March 15 letter to the Supreme Court, Acting Solicitor General Elizabeth Prelogar said "the Department of Justice has concluded that petitioner's conviction is a 'covered offense' under Section 404 [the retroactivity provision], that petitioner is entitled to request a reduced sentence, and that the court of appeals erred in concluding otherwise."
Also on Terry's side: the four main Senate sponsors of the FIRST STEP Act. In their Supreme Court brief, Sens. Richard Durbin (D–Ill.), Charles Grassley (R–Iowa), Cory Booker (D–N.J.), and Mike Lee (R–Utah) say Section 404 of the law "authorizes relief to everyone who had been sentenced for crack-cocaine offenses before the Fair Sentencing Act became effective, including individuals with low-level crack offenses" such as Terry—whose "low-level" offense, it bears repeating, earned him a decade and a half behind bars.
"Section 404's unambiguous text compels this conclusion," Durbin et al. say. "It ties eligibility to whether an individual was sentenced for 'a violation of a Federal criminal statute, the penalties for which were modified by…the Fair Sentencing Act.' As the First, Fourth, and Seventh Circuits have all recognized, the Fair Sentencing Act modified the penalties for all crack-cocaine offenses by altering each of the three penalty tiers…That includes the lowest tier…which changed from covering zero to five grams of crack cocaine (before the Fair Sentencing Act) to covering zero to 28 grams (after)."
As the "lead drafters of the Act's sentencing reforms," these guys should know, right? Maybe not. During oral argument yesterday, Mortara, the Court-appointed defender of the 11th Circuit's decision, dismissed the senators as "four members of one of our two houses of Congress," saying their position is not "necessarily the universal view of those who voted for the FIRST STEP Act."
Even justices who think the crack sentences imposed prior to 2010 were clearly excessive seemed inclined toward Mortara's reading of the statute. "The ratio between crack and ordinary cocaine was ridiculous," Justice Stephen Breyer said. "So Congress finally got around to modifying that. Fine. And anybody who had been sentenced under the old range, go back and get resentenced. Fine." But he added that the provision under which Terry was sentenced "seems to have nothing whatsoever to do with that ratio."
Breyer practically begged Adler, Terry's lawyer, for a rationale to vote in his favor. "You get me out of this," Breyer said. "I'd love to get out of it. I mean, I think [the penalties] were much too high. I understand that. But I can't get away from this statute."
Justice Sonia Sotomayor, who is generally more sympathetic than most of her colleagues to claims by criminal defendants, likewise was skeptical that Adler's position could be reconciled with the text of the statute. Before the Fair Sentencing Act, she said, "if I sold anything less than five grams, my sentencing range was zero to 20 years. And after the Fair Sentencing Act, if I sold less than five grams, I was still in a sentencing range of zero to 20 years….If you sold five grams or less, your penalty remains the same before and after."
Adler responded to these objections by arguing that "the 100-to-1 ratio affected everyone who was sentenced under that regime." Whether or not "it affected their statutory range or guideline range," he said, "it still affected the discretionary sentencing determination…because it provided the frame of reference through which judges assessed the severity of the offense."
Adler noted that Terry "was four-fifths of the way to the five-year mandatory minimum." Under the new threshold, by contrast, 3.9 grams would be just 14 percent of the amount that triggers the mandatory minimum. Justice Brett Kavanaugh agreed that the change would affect discretionary sentencing "in many cases," but he still wondered how "you link that up to the statutory text."
Adler replied that in the context of Section 404, "statutory penalties" refers to "the shifting of the [weight] ranges," rather than "modification of any term of years," which the Fair Sentencing Act did not address. He also noted that reducing the crack/powder ratio had required changes in federal sentencing guidelines as well as statutory minimums.
If the Court upholds the 11th Circuit's decision, Adler warned, high-level crack dealers could seek shorter sentences, but "those with the smallest quantities" would be ineligible. "Had Congress intended such a perverse result," he said, "it would have said so loudly and clearly."
Whichever way the Court rules, it probably won't have much effect on Terry. "According to the Federal Bureau of Prisons," Acting Solicitor General Prelogar noted in her letter to the Court, "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…for his offense."
But other federal prisoners serving time for crack offenses could benefit substantially from a ruling in Terry's favor. In its brief supporting Terry, the American Civil Liberties Union cites several examples, including Trentavius Arline, who pleaded guilty to selling less than a gram of crack for $40 and was sentenced to nearly 16 years in prison, of which he has served 11. Martin Richardson got almost 17 years for selling less than two grams of crack and is still in prison more than 11 years later.
To opponents of the war on drugs, those sentences were 16 and 17 years too long, respectively. But it should be clear even to supporters of drug prohibition that penalties like these are outrageously disproportionate. It does not seem like a stretch to argue that the legislators who voted for the Fair Sentencing Act and the FIRST STEP Act—laws specifically aimed at reducing the crack penalties that drug warriors like Biden came to regret—were trying to address such blatant injustices.