The Anti-Drug Abuse Act of 1986 created a sentencing regime that treated every gram of crack cocaine as the equivalent of 100 grams of powder cocaine for purposes of criminal punishment.  Over the next two decades, research and experience demonstrated that the 100-to-1 crack-to-powder-cocaine ratio was too high and unwarranted, undermining Congress’s goals of uniformity and proportionality in sentencing, and perpetuating unjustified race-based differences.

To ameliorate those injustices, Congress passed the Fair Sentencing Act of 2010, which reduced the crack-to-powder sentencing disparity to 18-to-1.  That law, however, applied only to individuals who were sentenced after the Act’s effective date of August 3, 2010.  Recognizing that a large number of crack-cocaine offenders sentenced prior to the Fair Sentencing Act were still serving sentences imposed under the 100-to-1 regime, Congress passed the First Step Act of 2018, which made the Fair Sentencing Act’s reforms apply retroactively to individuals sentenced for a “covered offense.”  Congress defined a “covered offense” 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.”

The petitioner in this case, Tarahrick Terry, was convicted of a low-level crack-cocaine offense and sentenced pursuant to 21 U.S.C. § 841(b)(1)(C) in 2008.  He filed a request for a reduced sentence after the passage of the First Step Act, and a district court held that he was not eligible for re-sentencing.  The U.S. Court of Appeals for the Eleventh Circuit affirmed, holding that individuals like Mr. Terry who were sentenced pursuant to 21 U.S.C. § 841(b)(1)(C) do not have a “covered offense” within the meaning of the First Step Act.  Mr. Terry asked the Supreme Court to hear his case, and the Court agreed to do so.  CAC filed an amicus curiae brief in support of Mr. Terry, urging the Supreme Court to reverse the Eleventh Circuit’s decision.

Our brief argued that the text and history of the First Step Act, as well as Congress’s plan in passing in it, make clear that Mr. Terry was sentenced for a “covered offense” within the meaning of the Act.  As a result, we argued that Mr. Terry and others sentenced pursuant to 21 U.S.C. § 841(b)(1)(C) should be eligible for reduced sentences.

First, our brief argued that the plain text of the First Step Act requires treating Mr. Terry’s offense as a “covered offense.”  Before August 3, 2010, Mr. Terry violated a “Federal criminal statute,” specifically 21 U.S.C. § 841(a)(1), which outlaws possessing with intent to distribute crack cocaine.  Further, the statutory penalties for Mr. Terry’s offense, contained in 21 U.S.C. § 841(b)(1)(C), were “modified by section 2 . . . of the Fair Sentencing Act of 2010.”  Specifically, the Fair Sentencing Act increased the quantities of crack-cocaine required to trigger the higher-tier penalties in 21 U.S.C. § 841(b)(1)(A) and (b)(1)(B).  The provision under which Mr. Terry was sentenced, 21 U.S.C. § 841(b)(1)(C), applies where 21 U.S.C. § 841(b)(1)(A) and (b)(1)(B) do not apply—it is a residual provision.  Thus, our brief argued that the changes to 21 U.S.C. § 841(b)(1)(A) and (b)(1)(B) had the effect of “modifying” the scope of 21 U.S.C. § 841(b)(1)(C), even though Congress did not amend the text of that provision.  Our brief explained the importance of Congress’s choice of the word “modify,” and not “amend,” in the relevant provision of the First Step Act.

Second, our brief argued that reading the First Step Act to apply to individuals sentenced pursuant to 21 U.S.C. § 841(b)(1)(C) comports with the history of the Act and Congress’s plan to reduce disparities in the criminal justice system.  Individuals sentenced pursuant to 21 U.S.C. § 841(b)(1)(C) include some of the lowest-level crack-cocaine offenders, so it would defy logic for Congress to allow drug-trafficking kingpins to petition for reduced sentences, while excluding street-level crack dealers from the First Step Act’s relief.

In June 2021, the Supreme Court affirmed the Eleventh Circuit’s decision that Terry and other individuals sentenced pursuant to 21 U.S.C. § 841(b)(1)(C) are not eligible for reduced sentences under the First Step Act of 2018 because they were not originally convicted of offenses triggering mandatory minimum sentences.  Because the penalties for those sentenced under 21 U.S.C. § 841(b)(1)(C) are the same now as they were when Congress wrote the law that created the unfair racial disparities between crack and powder cocaine, the Court concluded that 21 U.S.C. § 841(b)(1)(C) was not “modified” by the Fair Sentencing Act.  Justice Sotomayor wrote a concurrence highlighting the injustice of the result and urging Congress to amend the First Step Act to explicitly permit resentencings for individuals like Terry.