Justices seem to split with senators, DOJ on interpretation of drug sentencing law

At issue is whether minor crack cocaine offenses are covered under First Step Act

Chair Richard Durbin, D-Ill., right, and ranking member Sen. Charles E. Grassley, R-Iowa, conduct the Senate Judiciary Committee confirmation hearing for Merrick Garland, nominee to be attorney general, on Feb. 22. (Tom Williams/CQ Roll Call)
Chair Richard Durbin, D-Ill., right, and ranking member Sen. Charles E. Grassley, R-Iowa, conduct the Senate Judiciary Committee confirmation hearing for Merrick Garland, nominee to be attorney general, on Feb. 22. (Tom Williams/CQ Roll Call)
Posted May 4, 2021 at 1:27pm

The Supreme Court appeared unlikely Tuesday to interpret a 2018 criminal sentencing law about crack cocaine possession the same way as the bipartisan group of senators who wrote it.

Lawyers for the Justice Department and the prisoner bringing the challenge, Tarahrick Terry, told the justices that Congress’ overarching goal in the 2018 law was to give a chance at resentencing for everyone in prison under a 1986 law that treated crack 100 times more severely than powder cocaine.

Senators who championed the 2018 law filed a brief in the case that made that same argument, saying the provision was central to the passage of the broader sentencing overhaul meant to make the criminal justice system more fair and reduce prison overcrowding.

That included the Senate Judiciary Committee’s top members, Chair Richard J. Durbin of Illinois and Republican Sen. Charles E. Grassley of Iowa.

But most of the justices indicated Tuesday at oral arguments that they read the text of the law to mean that prisoners can get a chance to reduce unfairly long sentences for possessing crack cocaine under a tough-on-drugs law from 1986 — but not those convicted for the smallest amounts.

The justices are expected to issue a ruling by the end of the term at the end of June. Tuesday marked the last day of arguments for this term.

In 2010, a law known as the Fair Sentencing Act changed the threshold for how much crack cocaine defendants had to have possessed before they qualified for a higher level and stiffer sentences. But that law applied only to new defendants, not for Terry and others who had been sentenced already.

Then, Congress passed the 2018 law known as the First Step Act, which sought to make the 2010 law retroactive. That would mean those sentenced for crack cocaine possession under the 1986 law now could ask a judge to reduce their sentences.

Justice Brett M. Kavanaugh said the questions from other justices Tuesday highlighted how the text of the law “doesn't, at least at first glance, seem exactly in line with that goal.”

“Why didn't Congress just say, ‘Everyone who's been sentenced for crack offenses, under 841 is eligible for resentencing,’ something simple like that,” Kavanaugh said. “And I realize you can ask that kind of question in almost every statutory case, but here it seems like that would have been the easy way to do what you've described as Congress' goal.”

Chief Justice John G. Roberts Jr. and Justice Stephen G. Breyer both raised concerns that interpreting the law broadly would extend it to other drugs and crimes.

“If we read it your way, 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,” Breyer said. “It's covering everybody.”

Breyer said that he thinks the crack cocaine penalties were “much too high,” but added, “I can’t get away from this statute.”

Andrew Adler, the federal public defender for Terry, told the justices that had Congress intended “such a perverse result” that would not give that opportunity to the most minor offenders, “it would have said so loudly and clearly.”

Justice Clarence Thomas pointed out that the 2010 law did not change the Anti-Drug Abuse Act of 1986’s penalties for the lowest of the three levels based on how much crack cocaine was possessed.

Adler argued that a judge looking at the sentence again could decide the crime was less severe because the 2018 law changed the threshold for how much crack cocaine defendants had to have possessed before they qualified for a higher level and stiffer sentences.

Federal appeals courts based in Atlanta, Philadelphia, Denver and Cincinnati have ruled that judges can’t reconsider sentences for the lowest-level crack cocaine offenders, including the U.S. Court of Appeals for the 11th Circuit in Terry’s case now before the Supreme Court.

The Trump administration had sought to defend the 11th Circuit's decision before the justices, but the Biden administration flipped positions and sided with Terry.

Because of that, the justices invited attorney Adam Mortara, to defend the 11th Circuit's ruling at oral arguments. He told the justices that the bill’s authors didn’t have the definitive interpretation of what the law states.

“That is four members of one of our two houses of Congress,” Mortara said. “I don't think it represents necessarily the universal view of those who voted for the First Step Act. What represents that is the text of the statute.”