- The Washington Times - Tuesday, May 4, 2021

The Supreme Court on Tuesday weighed whether low-level crack cocaine offenders who have already spent a decade in prison should get a chance for reduced sentences under former President Donald Trump’s First Step Act, which strove to fix racial disparities in the sentencing of Black defendants.

The lawsuit was brought by Tarahrick Terry, who pleaded guilty in 2008 for possessing 3.9 grams of crack cocaine and was sentenced to about 15 years in prison.

Terry is set to be released in September, but he filed a petition for a reduced sentence after the First Step Act was enacted in late 2018.

Lower courts have been inconsistent on the issue. Some apply reduced sentences to different classes of offenders.

Andrew Lee Adler, an attorney for Terry, told the justices that Congress passed the law to give “all crack offenders sentenced under that old regime an opportunity to seek a reduced sentence.”

The Department of Justice under the Trump administration had argued against the justices reviewing Terry’s case.

After the change in administrations, President Biden’s Justice Department switched sides and supported Terry’s position.

“Congress didn’t foreclose every offender … from at least getting a look,” said Eric Feigin, deputy solicitor general representing the U.S.

The court appointed an attorney, Adam K. Mortara, to argue against Terry. He told the justices Terry’s sentencing related to him being a career offender.

The justices must decide if the First Step Act applies to low-level offenders such as Terry who were sentenced before a 2010 law lowered the statutory penalties for crack cocaine to be the same as for powder cocaine.

A ruling is expected by the end of June.

If the justices rule for Terry, the First Step Act would apply retroactively.

It’s not clear how many felons could be affected. The sentencing commission in 2010 estimated about 800 felons were in a similar situation as Terry, according to Vikrant Reddy, a senior fellow at the Charles Koch Institute.

“No one seems to have a handle on what the exact number is,” he said. “It’s more than Mr. Terry, we know that.”

Mr. Feigin estimated the number of felons potentially affected could be 100-200 but told the court that was only an estimate.

Still, Mike Lawlor, a criminal justice professor at the University of New Haven in Connecticut, said a ruling for Terry could have a significant policy impact with many states looking at altering other drug laws, especially those aimed at marijuana.

“This could be a momentum builder for those efforts or it could be a dead stop,” he said. “Ten years is a long sentence, and normally you are really talking about some sort of violent crime.”

During oral arguments, the justices from both the conservative and the liberal wing of the court appeared concerned that a reduction in Terry’s sentence would result in other drug offenders also seeking reductions.

Chief Justice John G. Roberts Jr., appointed by former President George W. Bush, questioned whether the court extending the First Step Act’s resentencing to Terry would affect other drug convictions, not just crack cocaine.

“Wouldn’t that also extend to other drugs?” he said. “Do you think the statutory language is unambiguous in that respect?”

“I don’t see how we get out of the fact that it really covers every drug offender who has two or three prior felonies or — or not. You know, it’s covering everybody. The chief was right,” said Justice Stephen G. Breyer, a Clinton appointee.

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