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Supreme Court Releases Opinions

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Certain offenders do not qualify for retroactive re-sentencing under the First Step Act according to a new Supreme Court decision. Released Monday, the unanimous decision found the wording of the statute did not allow for the relief sought by the defendant.

Under the decision, certain low-level offenders sentenced for crack-cocaine possession do not qualify for reduced sentencing. The intent of the co-sponsors of the bipartisan may have been for the law to apply to these offenders but the statute does not reflect that intent.

According to the Court, as written, the First Step Act’s provision for reduced sentencing only applies to people convicted of an offense that triggers a mandatory minimum. The case Terry v. United States drew bipartisan support in urging the court to make it right. 

Tarahrick Terry, the defendant, petitioned to have his sentence readjusted in 2019. Time reported Terry was sentenced to over 15 years for possession of 3.9 grams of crack cocaine.

Illinois Sen. Dick Durbin urged the Court to find in favor of Terry and other defendants who unsuccessfully tried to adjust their sentences. Without a change in the law, defendants like Terry cannot benefit from the adjusted sentencing.

Writing separately from the court, Justice Sonia Sotomayor agreed with the outcome but urged Congress to fix the language. Sotomayor wrote to clarify what she thought was a necessary correction of facts and law, particularly as it pertained to the War on Drugs. 

“While the Fair Sentencing Act of 2010 and First Step Act of 2018 brought us a long way toward eradicating the vestiges of the 100-to-1 crack-to-powder disparity, some people have been left behind,” wrote Sotomayor. “Among them are people like petitioner Tarahrick Terry, who was convicted under 21 U. S. C. §841(b)(1)(C) for possessing with intent to distribute a small amount of crack cocaine and was sentenced as a career offender.”

At a time when conservatives are sweeping history aside, Sotomayor’s concurring opinion provides a framework for Congress to fix the gap in legislation. She also explained her disagreement with the first part of the decision, written by Justice Clarence Thomas. “I do not join Part I of the Court’s opinion because it includes an unnecessary, incomplete, and sanitized history of the 100-to-1 ratio,” Sotomayor wrote in a footnote.

“Most egregiously, the Court barely references the ratio’s real-world impact and disregards the fact that, ‘as the racial effects of mandatory minimums and the crack/cocaine disparity became apparent, the [Congressional Black Caucus] came together in unanimous and increasingly vocal opposition to the law,’” she continued.

Crack cocaine sentencing disparities have long been a sticking point for criminal justice advocates. Sotomayor clearly documented the continued disparities in the updated legislation and urged Congress to use its tools to “right this injustice.”


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Justice Sotomayor Offers Congress Guidance On Fixing Persisting Sentencing Disparity for Crack Cocaine  was originally published on