The First Step Act of 2018 was always a law of limited scope. As I wrote shortly before the bipartisan bill won the signature of then-President Donald Trump, the legislation was aptly named: It took a good step — but, ideally, only a first step of many — on criminal justice reform. Its focus was sentencing reform for federal prisons, which only hold a small fraction of American inmates. Yet it made some important changes, like offering a path to retroactive sentencing adjustment for some people serving unduly onerous prison terms, often thanks to now-rescinded mandatory minimum rules that forced judges to issue harsh sentences for certain convictions, especially anything to do with crack cocaine.
On Monday, the Supreme Court unanimously dealt that reform a gutting blow.
All nine justices held in Terry v. United States that the First Step Act doesn’t permit resentencing for many low-level drug convictions. “A crack offender is eligible for a sentence reduction under the First Step Act only if convicted of a crack offense that triggered a mandatory minimum sentence,” the court decided.
The cruelty of this ruling is obvious in the case at hand, which Justice Sonia Sotomayor detailed in her conflicted concurrence: Tarahrick Terry was convicted of possessing a small quantity of crack with intent to distribute. Because he was considered a “career offender,” thanks to two small drug convictions from his teenage years, he was sentenced to 15.5 years in prison. And because his long sentence was connected to that history, not a mandatory minimum required by a larger amount of crack, the court denied Terry any help the First Step Act could give.
As Sotomayor wrote, the exclusion of Terry and thousands with comparable convictions from resentencing options “is no small injustice.” It is also a strange decision given the amicus brief from four senators who wrote the law, all saying they did in fact intend it to cover people like Terry. “Had Congress intended to exclude individuals with low-level crack offenses from relief,” the senators said, “Congress of course could have done so.”
SCOTUS evidently disagrees, even if reluctantly. Still, this need not be the end of the road: The Biden administration already indicated its support for Terry’s claim, and the four senators who signed that brief are still in office. Time to take the Second Step.
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