The U.S. Supreme Court heard arguments on Tuesday on a case that could determine federal policy on federal sentencing for many low level crack cocaine offenders, an issue that has long held racial and equal justice implications.
In the final case of the term, justices heard Terry v. United States, whose petitioner Tarahrick Terry was sentenced to more than 15 years in prison after being convicted in 2008 of possessing 3.9 grams of crack, according to TIME magazine. Although he filed a 2019 petition for a reduction in his sentence under the First Step Act, which had been passed a year prior, the 11th Circuit Court of Appeals in Atlanta denied him, ruling that the law only dealt with high and mid-level offenders, not low-level offenders whose category Terry fell into.
However, various courts have disagreed on whether or not that is true. In Terry’s petition to the Supreme Court, his lawyers argue that the First and Fourth Circuit courts say it is under the Fair Sentencing Act and district courts may reduce sentencing for low-level crack offenders, but the Third, Sixth, Tenth and Eleventh Circuits say that the offenders do not have a “covered offense.”
“This circuit split is untenable,” the petition says. “There are countless pre-Fair Sentencing Act crack offenders who are still serving their sentences. But geography alone now determines whether they are even eligible for relief.
“And although relief is discretionary,” it continues, “district courts have granted significant relief to eligible crack offenders—an average sentencing reduction of 26% or 71 months. Moreover, because many offenders are nearing the end of their sentences, this Court should intervene now. Otherwise, time may obviate a large swath of available relief.”
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Controversy over sentencing guidelines and their racial implications has gone on for years, but this latest presentation to the judges is expected to speak to how sentencing is applied.
The Fair Sentencing Act was signed by then-President Barack Obama in 2010 to reduce the disparity between how much crack cocaine as opposed to powder cocaine was needed to spur federal criminal penalties from 100:1 to 18:1. The larger ratio mean that people who were convicted of crack possession -- many of whom were people of color -- faced a longer sentence than for those convicted of the powder form of the drug.
The First Step Act was signed by former President Donald Trump in 2018 reformed sentencing laws to help reduce prison recidivism, but it also can apply retroactively to people convicted before the Fair Sentencing Act was signed and help them get their sentences reduced if they petition. Terry’s petition argues that this applies to him.
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There has been bipartisan support of Terry’s petition from lawmakers who feel that he is right. Among them, Republican senators Chuck Grassley and Mike Lee and Democrat senators Dick Durbin and Cory Booker, according to TIME. Each of them were co-sponsors of the First Step Act. “Had Congress intended to exclude individuals with low-level crack cocaine offenses from relief, Congress of course could have done so,” they wrote in a brief.
Also, in an amicus brief, filed in February by the NAACP Legal Defense Fund and the ACLU of Florida, supporters say under the First Step Act that Terry is indeed entitled to a reduction in sentencing. To illustrate the point, they offer the racial disparity in sentencing between powder cocaine and crack.
“Enforcement of the crack-powder differential led to vast racial disparities, as crack cocaine defendants were disproportionately Black, while powder cocaine defendants were not,” the brief said.
A decision in the case is expected this summer, according to The Hill.