The Department of Justice under the new Biden administration has changed its position on the scope of the First Step Act’s provisions aimed at reducing sentences for crack-cocaine offenders. The change was announced in Terry v. United States, a pending U.S. Supreme Court case that is scheduled for oral arguments in April.
Specifically, the case involves provisions of the First Step Act that made the Fair Sentencing Act retroactive. The Fair Sentencing Act in turn reduced sentences for “covered offenses” involving crack-cocaine. At issue is the scope of the First Step Act’s retroactive provisions and what offenses are “covered” and thus eligible for sentence reductions.
The Fair Sentencing Act changed the tiers listing the quantities of crack-cocaine that trigger certain mandatory minimum sentences. The Eleventh, Third, Sixth, and Tenth circuits have all interpreted “covered offense” narrowly so that offenses in only two of the three tiers are “covered,” while the First and Fourth circuits have held that, by modifying the first two tiers, all three tiers were modified by the Fair Sentencing Act and are thus “covered.”
The Supreme Court will weigh appointing a lawyer to defend the narrow reading of the law now that the DOJ has sided with the defendant.
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