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

Todd Ruger, CQ-Roll Call on

Published in News & Features

WASHINGTON — 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 Senate Judiciary Committee Chairman Richard J. Durbin, D-Ill., Sen. Charles E. Grassley, R-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.”


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