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Biden Administration Flip-Flopped Its Position in Case Over Crack Cocaine Sentences. SCOTUS Did Not Seem Pleased.


The Supreme Court heard its last oral argument for the current term on Tuesday in Terry v. United States. In this rare May proceeding (due to the case having been a late addition to the day’s calendar), Terry is something of a microcosm of the current times. To protect against the dangers of COVID-19, the justices heard telephonic oral arguments as they considered a case involving systemic racism in incarceration statistics — complicated by philosophical differences between diametrically opposed presidential administrations.

Tarahrick Terry pleaded guilty to crack cocaine crimes in 2008 and was sentenced to more than 15 years in prison. Two years later, in 2010, however, Congress passed the Fair Sentencing Act of 2010 (“FSA”). The whole point of FSA had been to decrease the extreme disparity in sentencing between crimes for crack versus those for powder cocaine — a disparity of a 100-to-1 ratio that has historically been shouldered primarily by African American people.

In 2018, Congress passed and President Donald Trump signed the First Step Act, which made FSA’s sentencing reforms retroactive, and allowed and past offenders to become eligible for re-sentencing. Not all past offenders, though, may be re-sentenced under the First Step Act. Rather, only those who were sentenced for a “covered offense,” which is defined as “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 … that was committed before August 3, 2010″ are eligible.

The FSA modified drug offenses in a way that addressed the disparity between types of cocaine. It changed “Tier 1 offenses” from those starting at 50 grams to those starting at 280 grams. That meant “Tier 2” was changed from between 5 and 50 grams to between 28 and 280 grams. The problem is that “Tier 3” (the tier in which Terry’s offense fell) wasn’t changed. Tier 3 had been the range from 0 to 5 grams, and although it would seem to make sense to now change that to the 0 to 28 range, Congress didn’t specifically change the text to say so.

Although the position seems somewhat counterintuitive, federal prosecutors took the position that the First Step Act did not intend to allow re-sentencing for offenders convicted of Tier 3 — the lowest level — offenses. Terry’s appeal is based on an argument that the First Step Act should be read to allow him and others similarly-situated to seek re-resentencing.

The U.S. Court of Appeals for the Eleventh Circuit ruled against Terry, finding that he was ineligible for re-sentencing; Terry next appealed to SCOTUS. Then-acting Solicitor General Jeffrey Wall opposed SCOTUS review on behalf of the Trump administration. Next, however, political drama caused some procedural anomalies in the case.

Terry had been scheduled for oral arguments on April 20, 2021; on that date, Terry’s lawyers would argue to overturn the Eleventh Circuit’s ruling while the Department of Justice would argue to uphold it. Now’s a good time for a reminder that President Joe Biden has struggled with PR problems regarding his history with drug statutes. That may be why acting Solicitor General Elizabeth Prelogar informed the court on March 15 that the Biden administration has changed its position in Terry’s case. But March 15 was also just five days after Merrick Garland was confirmed as Attorney General.

Prelogar wrote a letter to the Court saying that, Terry “is entitled to request a reduced sentence” under the First Step Act. As a result, Prelogar noted, the justices “may wish to appoint” a “friend of the court” argue that the Eleventh Circuit’s ruling should stand. The Court did just that. Adam Mortara, a Chicago lawyer and former clerk to Justice Clarence Thomas, was appointed as amicus, and argued the case as a “friend of the court.”

Assistant Federal Public Defender Andrew L. Adler argued on behalf of Tarahrick Terry, while Deputy Solicitor General Eric J. Feigin represented the Department of Justice’s newly changed position in the matter.

The justices didn’t make it easy for Adler; Chief Justice John Roberts and Justices Thomas, Stephen Breyer, and Samuel Alito all asked Adler to defend his position within a strict reading of the statute. Although Adler defended his position at each turn, the justices appeared somewhat skeptical of his justification. Adler’s most convincing argument was likely that which he offered in closing: “Had Congress intended such a perverse result, it would have said so loudly and clearly.”

Justice Brett Kavanaugh threw out something of a softball question amidst complex inquiries of statutory language, asking Adler, “Do you know the market value of 3.9 grams in 2008?”

After Adler estimated “about 50 bucks,” Kavanaugh followed up, asking why Congress wouldn’t have just said that everyone sentenced for crack offenses is eligible for re-sentencing. “It seems like that would have been the easy way,” commented Kavanaugh. “What do you think was going on there?”

Even Justice Sonia Sotomayor, who often leans in favor of criminal defendants, hinted that she wasn’t thrilled about siding with Terry. Sotomayor asked whether the court-appointed amicus had an argument that wasn’t “more straight-forward and direct” than Terry’s.

Turning from statutory interpretation to politics, the chief justice addressed the procedural elephant in the room at his first opportunity. Roberts asked Deputy Solicitor General Feigin, “The Department switched its position. What standard does your office apply when deciding when to take that step? Is it just that you think it is wrong and you would have reached a different one?”

Feigin responded that he was unaware of any specific set of procedures applied, but assured the Court that the matter had been given due consideration before the DOJ changed its position.

Justice Amy Coney Barrett picked up on Roberts’ line of questioning as well, pointing out to Feigin that the government’s change in position occurred just as briefs were due in the case.

Mortara, arguing as court-appointed amicus, advocated for a reading of the First Step Act that would justify excluding low-level offenders like Terry from re-sentencing eligibility on the basis that they already benefitted from sentencing reform under other statutes.

The argument Tuesday reached a crescendo when Justice Breyer questioned Mortara. The clearly-frustrated justice spat out a lengthy fact pattern. “I want to focus on what the chief justice said was incontestable. In my mind it’s totally contestable,” he began, before laying out the case of a person sentenced as a “career offender.” “The AUSA thought these high sentences were ridiculous,” Breyer hypothesized, “so the AUSA brought [the case] under [a different statute].”

Pointing out that those prosecuted as “career offenders” would not be entitled to re-sentencing under the First Step Act, Breyer went on:

“The amounts don’t matter once it’s a felony. So there’s no reason that they should get to ask for re-sentencing. Now I just stated something that’s in my mind and I want you to think about it if what I said is wrong or right, or should be modified.”

Mortara answered, “I think what you said is 100% correct,” and tried to continue. An annoyed Breyer interrupted, demanding, “Why did the government argue what it argued? They know these as much as I do, probably better!”

Mortara answered in stride, “Your honor, I am here to explain many things. The behavior of the United States government in this case is not one of them.”

The exchange was followed by an awkward and lengthy silence before Justice Alito picked up the questioning.

Regardless of his performance during oral arguments, Mortara faces an uphill battle in the case as he stands alone and apart from the case’s actual parties.

[image via Erin Schaff /POOL/AFP via Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos