Courthouse Steps Decision Teleforum: Terry v. United States

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Evelyn Hildebrand:  Welcome to The Federalist Society's Teleforum conference call. This afternoon, June 17th, we discuss the Supreme Court's decision in Terry v. United States. My name is Evelyn Hildebrand, and I'm an Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today we are fortunate to have with us Mr. Vikrant Reddy. He's a Senior Research Fellow at the Charles Koch Institute. He's also on the Executive Committee of the Criminal Law Practice Group at The Federalist Society.

 

      After our speaker gives his opening remarks, we will turn to you, the audience, for questions, so be thinking of those as we go along and have them in mind for that portion of the call. With that, thank you for being with us today. Mr. Reddy, the floor is yours.

 

Vikrant Reddy:  Thanks so much, Evelyn. I want to start just by saying thank you to The Federalist Society and to my colleagues on the Criminal Law Practice Group, in particular, for the opportunity to do this today.

 

      I did a Teleforum for The Federalist Society on Terry v. U.S. on May 4th right after oral arguments. And Dean contacted me -- Dean Reuter, who most people on this call know, contacted me about this case after the opinion came out. And he said, "Boy, we're getting a lot of interest in this case, and we'd love to have you come on and talk about the opinion in addition to the Teleforum you previously did on the oral argument." And at first, I thought, "Well, that's kind of curious because I find this case to be really hypertechnical and narrow and awfully specific about a niche, criminal justice issue. But as I dug into the opinion, I developed a theory on why I think it has generated some interested in our Federalist Society circles. And I suspect it's because in a certain sense, which I will explain at the very, very end of my short talk today, I sense the presence of Antonin Scalia hanging over this case and over its rationale.

 

      That sounds obviously curious because he's not a part of the decision-making process of this case. But let me get into what this case was all about and how the Court decided it. And then in my closing, let me talk about why I just feel Justice Scalia's presence throughout this opinion.

 

      So the case starts really with an important part of American social history, which many of the people on the call will remember. And that's the crack epidemic that just ravaged the United States throughout the 1980s. If you were around back then, or if you've read enough about that period, you know that we had a major urban crisis: crime. A lot of it was connected to the drug trade. And there was a sense that much of it was connected, in particular, to crack. Crack as distinct from cocaine, by the way.

 

      Congress got together and passed very, very serious laws, criminal laws, prohibiting crack possession and crack use that were distinct in their harshness from the laws that we had against cocaine. In fact, the crack laws passed by the federal government were a hundred times more severe than the cocaine laws.

 

      So to give you a sense of what that means, if you had been sentenced to one month in prison for a cocaine crime, a similar crack crime would've gotten you something like eight years behind bars. I mean, it really was an extraordinary difference. And it was because we had a sense that crack was connected to crime and the urban crime epidemic in a way that cocaine simply wasn’t.

 

      Now, as time went by, people's minds began to change about this. And there was a big movement to get Congress to equal the crack and cocaine disparity in sentencing. And in fact, finally, in 2010, Congress passed the Fair Sentencing Act that reduced these disparities from 100:1 down to 17:1. There was one exception, though, one big exception in this law. And that was that it was not made retroactive. So if you had been sentenced before that point, well, you were out of luck.

 

      For that reason, a major goal of people in the criminal justice reform community became making the Fair Sentencing Act retroactive. And for eight years, the advocates were just relentlessly pushing for retroactivity of the Fair Sentencing Act. They finally got their wish in 2018 when Congress passed the First Step Act and Donald Trump signed it into law. Finally, the Fair Sentencing Act was made retroactive, and you had thousands of inmates who were in a position to ask the courts to recalculate their sentences because Congress had revised these crack sentences.

 

      Now, one of these thousands of inmates was a man named Tarahrick Terry. Terry was caught with four grams of crack back when he was 20 years old. I think this happened in Miami. And this is where things really start to get a little bit technical.

 

      So what happened was we'd had this previous—how should I phrase this—set of thresholds that would've triggered severe sentences back in 1986. And then we had a revised set of thresholds in 2010.

 

      So there are three different tiers. You have the highest, most severe penalties: this is 10 years to life behind bars. You have the medium tier: 5 years to 40 years. And then you have the lowest tier: anywhere from zero to 20 years. High, medium, low. In 1986, you triggered the highest tier by having 50 grams or more of crack. That was revised in 2010. So it's not 50 grams and up; it's 280 grams and up. The medium tier back in 1986 meant anywhere from 5 grams to 49 grams. Again, this was revised in 2010 under the Fair Sentencing Act, and now the medium tier is triggered by 28 grams to 279 grams. And then you have the lowest tier. In 1986, the lowest tier was 4 grams and below. The revisions in the Fair Sentencing Act in 2010 changed that 4 grams and below to nothing, technically. They didn't actually write anything. They didn’t change 4 grams and below. But the interesting thing about it is if you just stop and kind of think about it is that if the medium tier was changed, so the lowest threshold went from 5 to 28, then, obviously, the lowest tier is now not below 5 but below 28. So instead of being 4 grams and below, it would be 27 grams and below.

 

      That's just logically what happened. The text was not directly modified, but it's -- read the statute and reason it out. It obviously was modified. At least I think it was obviously modified. But that really is what this case turned on is this question of what the word modified means and whether or not that lowest tier had been "modified." Because the way that the First Step Act was written was that the people who were able to have their sentences reviewed by courts at this point had to have their -- had to have been punished under a penalty statute that had been "modified." And again, we're focused on whether or not the statutes had been modified here.

 

      Now, to make things even more technical, remember I said that it's a matter of 4 grams and below changing to 27 grams and below. Well, the thing is that Mr. Terry was caught with 3.9 grams of crack. 3.9. And the reason that's relevant is that in 1986, he would've been in the lowest tier – 4 grams and below. And in 2010, he would've been in the lowest tier. And absolutely nothing would've have changed about the kind of penalty he was subject to. Now the broader penalty scheme changed. The broader statute changed. And it would be curious to think that Congress wanted to pass a law that went, I guess to put it in these terms, a little bit easier on very serious drug kingpins – people like El Chapo. But somehow wanted to maintain the level of severity on mules and small-time people, like Mr. Terry. That's kind of a curious outcome to reach. But if you stick to, really, the very strict text of what you see in front of you, that is the conclusion that you'd have to reach.

 

      Now, one thing that I think is really interesting that I think that is worth talking a bit about is that there are a whole bunch of amicus briefs filed in this case. But in one amicus brief in particular that I want to direct everyone's attention to was filed by the four senators who are the lead authors of the First Step Act. This is a bipartisan group of senators: Senator Durbin, Senator Booker from the left, but also Senator Grassley and great, Federalist Society stalwart Senator Lee on the right.

 

      These four senators, Durbin, Grassley, Booker, and Lee, they submitted an amicus brief explaining to the Court "This is what we meant to do. We intended not just to go "easier" on kingpins and yet maintain very harsh levels of severity on mules. We wanted to revise crack sentences for everybody. Now the fact that some people in a unique position like Mr. Terry were kind of not captured by the drafting is just an oversight on our part. And the Court should go ahead and find that Mr. Terry, like everybody else, is in a position to have his sentenced reviewed by a federal judge." These four senators were explaining their legislative intent.

 

      So the opinion came out. And the Court decided 9-0—that's notable. It was a unanimous opinion—9-0 against Mr. Terry. They said, "Look. We're looking at the sentencing scheme here, and as far as we can tell, there's this argument about whether or not the sentences were modified, whether or not the broader sentencing scheme being modified counts as being "modified" or whether or not the immediate and direct language that Mr. Terry was sentenced under is the subsection of the statute that needs to be modified. It's all highly technical. But what it ultimately comes down to for us is that Mr. Terry, had he been caught and prosecuted under the 1986 guidelines, would've been subjected to the exact same penalty scheme that he would've been subject to under the 2010 guidelines. And for that reason, he is not in a position to have his sentence reviewed by a court at this point.

 

      Now, Justice Sotomayor wrote a concurring opinion—concurring, by the way, not dissenting. She agreed on the logic here. In that concurring opinion where she said, "It would be worth Congress, if they really feel this strongly about it—we have four senators filing a brief; obviously, Congress supports the broader goals of the First Step Act—if they find that there was this drafting oversight, they should go back and fix it." And in fact, there is, I think, some legislation pending right now—I forget who's carrying it—in the Senate looking at one of these fixes to the First Step Act so that people in Mr. Terry's position can get their previous convictions reviewed by a federal court.

 

      But this leaves us in a place now where, like I said, I'm thinking a little bit about why it would've been that so many people in The Federalist Society, according to Dean, found this case so fascinating. And I think what it is is that the Court took a very strict textualist interpretation of what they saw in front of them. And they did this even though you have four senators who literally drafted the language that was relevant here and who literally drafted it just two years ago. They didn't draft it 20 years ago or 40 years ago. Drafted it just two years ago—some even count it in months—explaining to the Court what they meant. And the Court nevertheless said, "Look, that's not how we do law. You can't just come in and explain what your legislative intent was and then have us ignore the words on the page. We're not going to do it this way. And if you messed up, then it's up to you to fix it."

 

      This was an attitude that was taken not just by the conservative justices. This was an attitude that was adopted by Justice Breyer, Justice Kagan, and Justice Sotomayor. Remember because it was a unanimous opinion. I am absolutely certain that Justice Sotomayor would've preferred that Mr. Terry win this case. I even suspect that Justice Gorsuch, based on the kinds of decisions he's made about criminal law recently -- he's exhibited a real Libertarian streak during his time on the bench -- that he would've preferred that Mr. Terry win this case. But they looked at it. They looked at the text. They looked at it strictly. And they just found that the law couldn't get them there.

 

      And I think that had this case come before the Court 40 years ago, it would not have been unan- -- it's possible that Mr. Terry would've won; it certainly would not have been unanimous. And I think a big part of why Mr. Terry would have won, or why the case would not have gone unanimously, is that people would've taken that senators' brief -- the justices would've taken that senators' brief very, very seriously. They didn't do that this time. And I think that something like 90 to 95 percent of the credit for that move or that, how should I put it, judicial attitude on the part of the justices, 90 percent of the credit goes to Antonin Scalia, who really led a revolution in the way that courts are supposed to think about legislative history and congressional intent, things of that matter. And I just think it's hard to understate the enormous influence that this man almost singlehandedly had on the direction of American law, and therefore on the direction of American life.

 

      And that's why even though obviously Justice Scalia is not on the Court and had nothing to do with the decision in this case, I really feel like his -- he served as an intellectual loadstar for all of the justices left and right in this case. And there's so many cases where you can kind of feel Justice Scalia's presence and his interpretive guidance in many cases big and small. This is a small one, but it was one in which, I think, it is very clear that the revolution that he led was a big part of why this case was decided the way it was.

 

      Moving forward, I'm not sure what's going to happen in Congress. I think it's likely that -- Congress obviously really wants to do something here. Like I said, it was bipartisan, that brief. It was Donald Trump who signed the First Step Act into law. I don't think it's necessarily something that should trigger a lot of partisan blowback. But it, nevertheless, can be difficult to get things through Congress these days so who knows what's going to happen.

 

      That's the long and short of what happened in Terry and what the Terry opinion was all about. It was a small case, but an interesting case. I guess I'll say one last thing which is if you read some of the articles and you read some of the quotes from the advocates who were involved in this case, they're just completely incredulous that the case was decided the way that it was, especially considering the presence of the senators' brief. But I think that's a reflection of people not fully appreciating the direction that American law has gone in the recent years thanks to Justice Scalia.

 

      I, for what it's worth had I been on the Court, would've decided the other way. Maybe I'm a little bit eccentric. But I actually think that this argument about whether or not the relevant language was modified or not modified is very complicated and very vague, kind of difficult to parse in situations like that. I think you ought to rely on the rule of lenity, which says that in criminal cases, as everyone knows, there's an interpretive canon that in criminal cases when things are sort of vague and you're not sure whether or not you should find in a way that's beneficial to the defendant or to the government, you just kind of default to finding against the government and in favor of the individual. It's just an interpretive canon that preserves individual liberties. It's part of our Anglo-American heritage. That's how I would've decided the case.

 

      In fact, a group that I work closely with, Americans for Prosperity, filed an amicus brief making that very argument. The Court did not decide it that way. I'm a little disappointed but I'm not shocked. And I understand the logic, and I guess I was a little surprised that so many of the advocates were incredulous and found it impossible to comprehend the logic. It is a decision which, although I may be a bit disappointed and may disagree with, I completely understand. And it does make a certain amount of sense.

 

      So anyhow, fascinating little case. And at this point, Evelyn, I think it'd be great to take some questions.

 

Evelyn Hildebrand:  Wonderful. Thank you so much for that [inaudible 18:40]. We will now go to audience questions. And while we're waiting for audience members to line up in the queue, I wanted to ask is it very surprising to you that the senators did file that letter, that memorandum, stating what their legislative intent was in drafting? Is that something that you've seen in Supreme Court litigation before or even in litigation at different stages of the appellate process? Or was that a big surprise?

 

Vikrant Reddy:  It's a good question. You know, you see these kinds of things all the time. Legislators will frequently weigh in. But the one thing that I thought was a little unusual, honestly, was Senator Lee's presence on the brief because I suspect that this skepticism of assessing legislative intent and legislative history that the courts have very widely adopted now, I think it's probably something that Senator Lee shares.

 

      But it's probably just politics at the end of the day. Well, I don’t want to say that in a cynical way. I mean it's politics and it's policy. I think it's a policy that Senator Lee really cares about. He's been one of the nation's foremost advocates for criminal justice reform for several years now. And he probably said, "Look, this is worth a shot." So he signed onto the brief.

 

      But who knows? Maybe he thought, "Ultimately, I wouldn't be surprised if the Court just kind of ignored my argument because they don’t really -- they try not to look at legislative history the way that they once did."

 

Evelyn Hildebrand:  Right. Is that something that could happen at an appellate level? Or I supposed that at an appellate level there would be less interpretation of legislation in the same way?

 

Vikrant Reddy:  You know, I think it could happen depending on just the type of case you're talking about. I think it could happen at any level. And I think it still does happen, by the way. Let's make no mistake about it, there're plenty of judges in the federal courts who did not adopt the Scalia revolution, and they still think and analyze law in a way that was very common 40 or 50 years ago. There're many, many of them still out there, and it's not a crazy strategy to, whenever you're drafting a brief, to make arguments about legislative history and legislative intent in order to get to those judges. But it didn't happen here. And it's just very notable to me that it didn't happen even with Kagan, even with Breyer, even with Justice Sotomayor, whom I would've thought, among those three, would've been the one most receptive to that style of argument.

 

Evelyn Hildebrand:  Exactly. That's very surprising. Thank you for that. And at this point, I'll turn the floor over to our first caller.

 

Caller 1:  Hi, yes, thank you for that insight about textualism. That's a very interesting way to read the case. I just want to understand the 100:1 ratio you described. You said that someone who might get a month with regular cocaine could get almost 100 months through crack. My understanding was 100:1 ratio concerned the amount -- not the number of months, in a sense, but the amount of the substance needed to trigger a certain mandatory minimum. So that, for example, if you had 5 grams of crack or 500, a pound, either one would trigger the minimum. Was there also that 100:1 ratio in the lens of the sense that someone would receive for possessing the same amount of cocaine?

 

Vikrant Reddy:  I don't want to overstate my case here. What I do know is that that point about a one month sentence for a particular kind of crack offense being matched -- or excuse me, for a particular kind of cocaine offense being matched by a nearly eight year sentence for a particular kind of crack offense was a point that I picked up in one of the briefs that was filed. And so I thought it would be great to toss into the presentation. And I wish that I just had more details and more context on it so I could give you a better answer to that question. But, honestly, I can't.

 

Caller 1:  Okay, thanks.

 

Evelyn Hildebrand:  Great. Thank you. And while we're waiting for any other callers who'd like to ask our presenter a question, I wanted to ask what kind of ripple effect you think that this could maybe cause if there're possibly petitioners who are filing § 1983 claims who are going to rethink that decision. Or I suppose, I'm speculating, that you have to file a letter in the process of filing a § 1983 claim to update the claims you're making, depending on how this case came out.

 

Vikrant Reddy:  You know, one of the big questions in this case, I think it even came up in oral argument, is just how many people are there in the federal prison system who are in Mr. Terry's position. And nobody ever really seemed to have a good answer to that. Now, there are plenty of people who were sentenced under the 1986 laws and then, of course, things got revised in 2010. And they were suddenly in a position to have their sentence reviewed, but maybe they were in the lowest tier so they weren't captured. This was Terry's position. But as time goes by, a lot of these people just get out of prison, even under the prior sentence, right, as the years kind of take past. And it's just hard to know. Nobody seemed to be able to do just a direct count of how many people were in the Terry position.

 

      There was a figure—oh, gosh, I wish I could remember it—I want to say that as of 2010, they had calculated -- the Sentencing Commission had calculated the exact number of people who are in Terry's position, but that was a 2010 figure. And obviously, it's been 11 years. And so the best guess that people could stumble around to was maybe something like -- 200 was as estimate that I saw I think on some law professor's blog somewhere. But that really was a -- I'm not even sure where that estimate was pulled from or how he calculated it.

 

      It's a tough figure to know. We know at a bare minimum that Mr. Terry was in this position. I'm pretty sure there are a few others who are like him or in this position. But hopefully for those who feel that it's a bit unfair that they're not subject to the benefits of the retroactivity, that hopefully, Congress will step in and do something about this one. And to my mind, whether or not there're 10,000 of them or there're just 2 of them, it's a matter of individual rights for those people involved. And it's something that can be fixed fairly easily if Congress would abandon in-fighting and just do some of this basic work. It's been traditionally done in the past. I'd like to see that happen. But we shall see.

 

Evelyn Hildebrand:  Right. Exactly. Is there -- and this is perhaps not a relevant question, but is there a remedy for a petitioner who the retroactivity provision would apply to if his sentence had just [inaudible 26:13]?

 

Vikrant Reddy:  If his sentence had just what, Evelyn?

 

Evelyn Hildebrand:  If a petitioner did qualify for the retroactivity provision but it sentence had already run, so he'd been released prior to this decision. Is he out of luck or is there a remedy? I'm just personally curious about this.

 

Vikrant Reddy:  I mean, I assume a person in that position whose sentence has already run would just be out of prison and be back home and the whole issue would be moot.

 

Evelyn Hildebrand:  Right. Interesting. Okay, let's move on to our next caller.

 

Bob Fitzpatrick:  Hi, Bob Fitzpatrick here in DC. I'm an employment lawyer, and so I'm fascinated by this decision from the perspective of looks like the triumph of textualism. And under Title VII of the '64 Civil Rights Act, there is an attorney's fees fee-shifting provision that says the prevailing party gets fees. And the Supreme Court interpreted that totally contrary to the language to say, "Well, the plaintiff does but the defendant only does if the case was frivolous or vexatious." So my question is is an interpretation like that of a statute that does not read that way now in serious jeopardy because of a case like Terry?

 

Vikrant Reddy:  Well, it's a great question. In fact, it may be the most important question about the Supreme Court moving forward. I won't speak to that particular language. I'm not an employment lawyer and it's not anything I'm familiar with. But your broader question is just so important. It is when you have a whole host of cases that were decided in a way that's really unmoored from textualism, or if you want originalism or structuralism, some of the more formalist interpretive canons, we have so many decisions like that out there. How many of them are going to be revised?

 

      There are some that it would probably be really important to revise and there may be others that the Court will decide, "Well, just as a matter of stare decisis that's not something that we're going to touch." And I have no way of knowing how the justices are going to make those decisions, whether or not it's going to happen on a case-by-case basis or whether there will be some broad standard or rubric that they're going to apply. I don't know.

 

      But everybody's wondering about it. They're wondering about it because, obviously, the ideological composition of the Court has changed so dramatically in the past few years that it's an absolutely relevant question. Like I said, most important question out there, but I simply don’t know. I'm every bit as curious as you are.

 

Bob Fitzpatrick:  Well, thanks ever so much. And thanks for a great presentation. Much appreciated.

 

Vikrant Reddy:  Thank you.

 

Evelyn Hildebrand:  Thank you. And in the meantime, I'll hand the floor back over to you for any closing comments that you would like to make.

 

Vikrant Reddy:  You know, maybe I'll say one more thing about the previous question. And that was that I actually --  I remember going to a Federalist Society event once where Justice Thomas talked a little bit about his attitude on this question. He said he understood the value of stare decisis, but at the end of the day if something was just decided wrongly, it was just decided wrongly. And the Court had to go back and fix those kinds of errors. And I thought it was an intellectually consistent and admirable position. But I doubt that everybody on the Court shares it. I doubt that even all of the conservative justices on the Court have that position. But we'll just have to wait and see what happens.

 

      It is absolutely fascinating that there's so many justices on the Court right now who are so committed to these interpretive techniques: the textualism, originalism, structuralism. And we're probably in store for a real change, if not a revision of cases in the past, certainly a very, very different direction when it comes to how we evaluate cases in the Supreme Court.

 

Evelyn Hildebrand:  Great. Thank you. And on behalf of The Federalist Society, I want to thank you expert for the benefit of your valuable time and expertise today. And I want to thank our audience for calling in and participating. We welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about upcoming Teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.