Government Cries ‘Uncle’ on Fair Sentencing Act Retroactivity – Update for March 22, 2021 | Legal Information Services Associates LLC

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A MOST SIGNIFICANT CONCESSION

Last week, the Biden Dept of Justice told the Supreme Court that it would no longer argue that the § 404 of the First Step Act – the provision that made the Fair Sentencing Act of 2010 (FSA) retroactive, thus letting people given draconian sentences prior to that date a chance to bring their prison terms more in line with powder cocaine sentences – did not apply to people who did not fall under a mandatory minimum at their pre-2010 sentencing.

At first blush, it sounds rather arcane. Section 404 permitted anyone with a “covered offense” to apply to his or her sentencing judge for a sentence reduction. A “covered offense” is defined in § 404(a) 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.” The Act lowered the ratio of crack-to-powder from 100:1 – which punished 5 grams of crack as though it were 500 grams (over a pound) of powder – to 18:1. This had the effect of requiring a defendant to have 28 grams of crack (instead of 5 grams) before the five-year mandatory minimum sentence of 21 USC 841(b)(1)(B) would apply, and 28 grams of crack before the 10-year mandatory minimum in 21 USC 841(b)(1)(A) would apply.

Essentially, the drug distribution penalties are hierarchical. The people with the most drug are sentenced under 21 USC 841(b)(1)(A), with penalties starting at 10 years and going up. The people with a lesser amount are punished under 21 USC 841(b)(1)(B), with penalties starting at five years. People convicted of having amounts less than the minimum needed for (b)(1)(B) – which is 28 grams for crack under the FSA – are punished under 21 USC 841(b)(1)(C), where the penalties start at zero.

A number of judicial circuits have ruled on whether a person with a pre-2010 (b)(1)(C) sentence had a “covered offense” under § 404. After all, the reasoning went, the FSA did not change the pre-2010 mandatory minimum, which was zero before the FSA and zero after. Unsurprisingly, the DOJ has fought hammer-and-tong against any (b)(1)(C) defendant getting resentenced under the FSA, and it so far has won in four circuits but lost in three.

Now for Terry: In Terry v. United States, the Supremes are to weigh in on the issue, whether defendants sentenced for low-level crack-cocaine offenses under (b)(1)(C) before the FSA are eligible for resentencing under First Step. This is important for those defendants, because on resentencing, the courts are not bound to merely adjusting the sentence to reflect the FSA. Instead, they can consider post-sentence conduct and rehabilitation, and vary downward rather freely. Even if this were not so, most of those (b)(1)(C) people are nearing the end of their sentences.

The Trump DOJ consistently took positions to limit § 404 crack retroactivity as much as possible, and argued in Terry that unless a defendant had a mandatory minimum, § 404 did not apply. But in a letter to the Supreme Court last week, the DOJ said that following the change in Administration, it “began a process of reviewing the government’s interpretation of Section 404 of the First Step Act. As a result of that review, the Department of Justice has concluded that petitioner’s conviction is a “covered offense” under Section 404, that petitioner is entitled to request a reduced sentence, and that the court of appeals erred in concluding otherwise.”

The letter was filed on the day the Government’s brief was due. The petitioner filed an immediate response, criticizing DOJ for waiting to the last minute and urging the Court to decide the case without any further delay. DOJ, exhibiting the heart of a bureaucrat, noted,

According to the Federal Bureau of Prisons, petitioner is scheduled to complete the remainder of his term of imprisonment, which he will serve almost entirely on home confinement, on September 22, 2021… Were the case not to be decided before September 22, a question of mootness would arise that would need to be addressed before any decision on the merits.

Of course, not a word about Tarahrick Terry, whose paltry 3.9 grams of crack netted him a sentence that – had the district court been told by the government that the FSA applied – would have gotten a reduction which nationally was averaging 26%. In other words, Tarahrick and the kids would have been coloring Easter eggs at home two years ago.

The Supreme Court is unwilling to delay a decision on relief for Tarahrick until it no longer matters. Last Friday, it appointed a lawyer to argue the position abandoned by the government (which is common practice when the government refuses to defend a case). Argument had been set for April. The Court postponed that but still promised a decision by the end of June.

The Terry case has drawn a lot of interest. Senators Richard Durbin, Charles Grassley, Cory Booker, and Mike Lee also filed a joint brief, as have several major think tanks and advocacy organizations spanning the spectrum from the American Civil Liberties Union to the American Conservative Union. Groups of retired federal judges, former federal prosecutors, and defense lawyers, have filed as well. None of the amici favors the government.

The DOJ confession of error is interesting for another reason more based in policy. It is still too early for any comprehensive Biden criminal justice reform legislation to have been introduced in Congress, but the DOJ letter strongly indicates interest at high levels of the Administration to favor maximizing current statutes to reduce federal sentences. Ohio State University law professor Doug Berman said last week the DOJ letter “is big news that the new Administration is open to a broader application of the First Step Act here, and I am hopeful that this kind of Justice Department new thinking may end up being applied in a whole host of other sentencing settings.”