Courthouse Steps Oral Argument 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.

 

 

Guy DeSanctis:  Welcome to The Federalist Society's Teleforum conference call. This afternoon, May 4, we discuss, "The Courthouse Steps Oral Argument: Terry v. United States." My name is Guy DeSanctis, and I am Assistant 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 Vikrant Reddy, Senior Research Fellow of Charles Koch Institute. After Vikrant 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 when we get to that portion of the call.

 

With that, thank you for being with us today. Vikrant, the floor is yours.

 

Vikrant Reddy:  Thanks so much, Guy. I want to thank The Federalist Society for this opportunity, and I want to especially thank all my colleagues on the Criminal Law Practice Group's steering committee.  

 

      This is a really interesting case to talk about. It's hyper-technical, there's no doubt about it, but to really understand the case, you've got to talk about some bigger things, things that touch on American social history and crime and politics and Congress and fundamentally, I think, that every FedSoc'ers favorite topic which is statutory interpretation. And at the end of all of it, the lives of possibly hundreds of people are implicated. And so it's just an absolutely fascinating little case, and I say we dig into it. 

 

      So you dig into it not really by starting with the case, but you start by thinking about the crack epidemic in the United States in the 1980s. Everybody knows that we had a horrible crime situation at that time. Urban crime was really spiraling out of control. And much of the crime of that period was connected to the drug trade and drug markets.  

 

      And for that reason, we passed some very, very harsh drug penalties, many of which remain with us today. And the United States has got, broadly speaking, many penalties at both the state and federal level for narcotics that are far higher than you find in many other comparable nations.  

 

      Our penalties for crack were particularly high. There was a sense, based on our best understanding at that time, that crack was a uniquely dangerous drug, that it was connected to violence in the drug markets in a way that dramatically out stripped other drugs, that it was uniquely addictive, that it had -- really it carried unique public health concerns. And so crack penalties were particularly high. In fact, we made crack penalties approximately 100 times higher than the penalties for cocaine offenses. And that was our best understanding at the time, that crack was just a much more serious issue than cocaine.

 

      So this means that if you were to receive one month in federal prison for some kind of a cocaine offense, you would get a little bit more than eight years for a comparable crack offense. The disparity was just massive. It was extraordinary. Now, as time went by and our scientific understanding improved and our cultural understanding improved, we began to really, really rethink that 100 to 1 ratio between cocaine and crack.

 

And for people who were working in the criminal justice space, one of the most important goals was to find a way to reduce the 100 to 1 crack cocaine disparity. In 2010, we finally did, not all the way but significantly. The ratio was reduced from about 100 to 1 to about 17 to 1. So now, you were at a point where a cocaine crime that would get you one month behind bars would be matched by a crack penalty of about a year and a half. Still a big deal but nothing like that previous 100 to 1 ratio.

 

Now, there was an important exception to this statutory change that was made in 2010, the Fair Sentencing Act as it was called, and that exception is that the law was not made retroactive. So for all these people who had already been sentenced under this very, very harsh crack regime, they were simply out of luck. And so now the new goal of people in the criminal justice reform community was to find a way to get the Fair Sentencing Act made retroactive.

 

Again, it took quite a long time, but in 2018, they succeeded because Congress passed and Donald Trump signed into law the First Step Act which just about everybody on the call probably remembers, remembers as really landmark federal criminal justice reform legislation. The First Step Act did a whole lot of things, but for our purposes on the call today, the really interesting thing that it did was it took the Fair Sentencing Act which reduced the crack cocaine disparities from 100 to 1 to 17 to 1 and it made them retroactive.

 

So suddenly, you have thousands of people who are in federal prison, who are in a position to petition the courts to recalculate their sentences and say look, I had been previously sentenced to X but now I should be sentenced to something that is months, really even years, lower. And some people were in a position to be released immediately because the sentence had been recalculated.

 

Now, one of the people who presumably was in a position to get his sentence reassessed was a man named Tarahrick Terry. And when he was about 20 years old in Miami, he was found with approximately four grams of crack. They said in the court arguments today that that could be estimated at a street value of about $50 or so, so very tiny amount. It weighs about what a paper clip could weigh.

 

But ever since then, he has been in federal prison. Now, he thought that he was in a position to perhaps get his sentence reassessed, but here's where things start to get complicated and things get a little bit technical. And as I said in the beginning, this gets into a really technical question of statutory interpretation. I'll get into this as best I can.

 

We created, when we made these really harsh crack penalties back in the 1980s, three different tiers. So the highest tier, the most significant kinds of crack offenses, involved amounts of crack that were 50 grams or higher. And then there was a middle tier, and that was for anywhere from 5 grams to 50 grams. And then there was the lowest tier of all. That was below 5 grams.

 

So the Fair Sentencing Act comes along in 2010 and it elevates all of these. The highest tier, we decide, no longer needs to be 50. It probably should be something more like 280. And then the middle tier gets bumped up. It's no longer 5 to 50. It's 28 grams to 280 grams. Now, the lowest tier of all, the one that was previously 5 and below, that was not actually mentioned. Now, in a sense, it's implicated, right? Because if the middle tier goes up from 5 to 28 at the lowest bound, then that means that the lower tier necessarily isn't capped at 5. It's capped at 28 now.

 

It has been kind of folded in, even if it wasn't explicitly stated. By implication, it's affected. Everybody seems to agree on that, but here's what they don't agree on. Was it -- was this small provision, this lowest tier offense, was it "modified"? That's the word that everybody is arguing about right now. That's what the court is trying to get a handle on this morning.

 

The reason the word modified is so important is that you are in a position to have your sentence reassessed under the First Step Act if you committed a crime that is a "covered offense." And a covered offense is one, among other things, that was "modified by the Fair Sentencing Act in 2010."

 

Now, it wasn’t actually this particular subsection of the statute wasn't mentioned. Congress didn't touch it, so in that sense, it wasn't directly modified. But, of course, it did change. It was altered simply because the penalty level above it was altered, and so in that sense, it was modified. So you kind of ask yourself well, what does the word modified mean? And does it really apply to this section of the statute?

 

Well, four senators who were deeply involved in the First Step Act, I think it was Mike Lee, Chuck Grassley, both FedSoc guys, and then on the Democratic side, Dick Durbin and one other senator I don't recall -- Cory Booker. It was Cory Booker. Four senators all together, they filed an amicus brief in which they argued that yes, obviously, this was modified. You can't think that Congress's intent in passing the First Step Act was to somehow cut a break for the highest and most serious crack offenders, the El Chapo's of the world, but to remain very, very hard and very, very tough on the lowest level crack offenders, the people who are more likely mules or possession offenders, this kind of thing.

 

And they said it would just be a really quixotic reading of the statute. But, of course, what the court is focused on is what the text of the statute says, not what four senators after the fact say that Congress intended to say. And Justice Scalia taught us all about the perils of relying too much on legislative history. And so I think at the end of the day, the Court is just going to take a look at the words on the page.

 

But there, we still don’t really have a good answer to our question because we don't know whether or not the First Step Act's use of the word modified is going to implicate this small subsection of the crack penalty statute. And that is what the case is going to be decided on. And I really don't know how it's going to go. I thought, when I first started investigating this case, that it would be a slam dunk for Mr. Terry and that he would win it. But I really started digging into the arguments and listening, by the way, to the Court this morning, where even a judge like Justice Sotomayor who you would think would be an anti-government position here, she never let it seem very dubious of Mr. Terry's argument.

 

So ultimately, I guess I'm not entirely sure where it's going to go. I'm really interested in seeing where Justice Gorsuch lands because he's one of the most interesting voices on the Court on criminal justice matters—and this is a criminal justice case—and also on statutory interpretation and textualism matters. And he is also one of the most influential and interesting voices on the Court in that arena. And Gorsuch didn't really show his hand today because as Justice Roberts during the telephone arguments went one by one asking who had questions, Justice Thomas and Justice Breyer, etc., etc., he got to Gorsuch, and Gorsuch passed. He did not ask any questions, so we just don't really know quite what he's thinking at the moment.

 

But that's where the case is right now. It was very interesting that they heard it in the first place. They normally wouldn't hear a case this late, but the government had petitioned them to hear the case in an extraordinary circumstance simply because there are so many people, federal inmates, whose lives would be implicated here.

 

And I should note, by the way, there's an interesting little wrinkle in the representation of this case because originally, when this case came before the Court, the Department of Justice took the position that that subsection of that crack statute was not modified, and therefore, Mr. Terry was not in a position to have his sentence reassessed. But, just a few short weeks later, the administration changed from Trump to Biden.

 

And the Biden administration said that it actually was not going to take that position. It was going to just step aside and support Mr. Terry. And so what the Court had to do was hire an amicus. And I forget the attorney's name, though he did an able job today. He was a former clerk to Justice Thomas, but he got an amicus to represent the anti-Terry position. And we will see how it's ultimately decided.

 

So, Guy, at this point, I'd be happy to take any questions from our audience.

 

Guy DeSanctis:  Thank you. We'll now go to audience questions. We have our first question.

 

Vikrant Reddy:  Oh, well, that's Dallas. I'm from Fort Worth.

 

Dan Morenoff:  Wonderful. Sir, yes, I am calling from Dallas. This is Dan Morenoff. I find myself wondering whether there is some legitimate reason that I'm missing, why, if there are four senators in a senate as divided as this one is that are in sufficient agreement that this is important enough to justify filing an amicus brief. And they know that the President agrees with them on what the policy results should be here. Why would they go to the Court rather than simply filing a one-page bill to amend the statute to fix what appears to be an inadvertent drafting mistake?

 

Vikrant Reddy:  You know, it's a great question. And I think it touches on a bigger problem which is that for a long time now, I think there's been, in a sense, Congress has abdicated its responsibility to handle these kinds of things on its own and has just punted them over to the courts and hope that the courts can solve these problems.

 

      But maybe to some extent, Congress is doing this because even the smallest things are very, very difficult to pass in Congress these days. I suspect that if the Court decides that this subsection of this crack penalty was not "modified," that you're absolutely right, that these four senators are going to make an effort to just go ahead and change the statute the way legislators are supposed to do.

 

      But I hesitate to say that it's just going to be an obvious win. You feel like it should be. As you said, it was a bipartisan group of senators. This is -- the First Step Act was supported by Donald Trump, while I would presume, although he wasn't in office at the time, that it would've been supported by Joe Biden. If nothing else, political pressures would put him in a position where he'd have to support these sorts of things.

 

      You would think that it would be a slam dunk, but I hesitate to say anything would be a slam dunk in Congress these days because it's just so deeply polarized, and it is very difficult to get things across the finish line.

 

Guy DeSanctis:  Thank you for that question. I guess one question I have in the meantime while we wait is how many people, practically speaking, would be affected by the decision of this case?

 

Vikrant Reddy:  Yeah. That came up in argument today. it's a good question. The short answer is I'm not entirely sure, but I'm not sure that it matters because we know that the number is at least one and almost certainly more than one. And it's important to these people who are [inaudible 16:56] wasting away behind bars right now if they had the chance to have their sentence lowered or even to get out altogether.

 

      The more complicated answer is that we have an estimate from 2010 that the U.S. Sentencing Commission did of the number of people who are in this position, and that figure was 800. Now, that was 11 years ago so obviously, there are not 800 people behind bars in this position right now. Several of them have been released. They haven't all been released because some of the penalties in this area were as high as 20 years. Because of certain kinds of penalty enhancements, there were people who could've gotten 30 years.

 

There are still a lot of people who are behind bars who are in this position. It's less than 800. It's more than 1. And I know that's quite a large range, but I don't know the exact number, and nobody seems to know because nobody's quite done the count that I could see, digging through amicus briefs and things like that.

 

      But it could be as low as many, many dozen. It could be as high as several hundred. But regardless, there are definitely many people whose freedom is on the line here. And so it's -- you've got their freedom on the line. You've got a circuit split -- by the way, I should've mentioned that because different circuits have been viewing the statutory interpretation question differently. And so it's crystal clear that it's the type of case that the Supreme Court ought to make a call on.

 

Guy DeSanctis:  Thank you for that answer. In the meantime, is there anything else you'd like to discuss about this while we wait for any more questions?

 

Vikrant Reddy:  You know, I -- as I was reading through the case, something that I kept thinking of was one of my favorite quotations from Justice Scalia, and I don't think it'll be a surprise to anybody on this call, maybe the quote will be, but the sentiment won't be. I think for people outside The Federalist Society who tend to caricature us a bit, it will come as a surprise. But like I said, nobody here will be taken aback.

 

      Justice Scalia said, and I won't get it exactly right, but it was something to the effect of I am not a strict constructionist. Nobody should be a strict constructionist. Statutes should not be construed strictly, and they shouldn't be construed loosely. They should be construed reasonably. And, I mean, I think that case is perfectly obvious, and I think broadly speaking, Justice Scalia built a career off of that, a very admirable career in my judgment. And I wonder to what degree you can apply that kind of broad idea to this question of statutory interpretation today.

 

      You have this lowest tier offense, which wasn't explicitly named but which was obviously affected. At the end of the day, should you really construe text ultra-strictly, or should you construe it -- you certainly shouldn't construe it loosely, but you should construe it reasonably as Justice Scalia said. And I wonder where that gets us.

 

      To me, it gets you in support of Mr. Terry. But I don't know if everybody will see it that way. I mentioned in my opening remarks that I'm really curious to know how Neil Gorsuch will think about these things because he seems like Exhibit A for the guy who's really trying to apply Justice Scalia's interpretive vision in the way that he handles cases. He's also a guy who I think is concerned about disfunction in our criminal law, in our criminal justice system and has taken some interesting positions during the time that he's been on the bench to address that. And all these concerns come to a head in this case, and I'm just going to be absolutely fascinated to see what he does.

 

Guy DeSanctis:  Thank you for that. As of right now, it doesn't seem that we have any more questions, so do you have any closing remarks you'd like to make before the end of the call?

 

Vikrant Reddy:  Maybe I'll just say what I've been saying to reporters that ask me about this case which is that we're in the middle of a real reconsideration of how we do drugs and drug policy and drug sentencing in this country, and it's complicated, you know? It's not quite so simple as just passing a law and moving forward, as this case indicates. But in many ways, Congress and state legislatures and the Executive Branch at the state and federal level, they have been weighing in on this new kind of thinking of drug policy in America. But I don't know that we have a lot from the courts and how they're thinking about the new direction that America's trending. And this will be a really interesting case to examine how they're thinking about these issues.

 

Guy DeSanctis:  Thank you for that. On behalf of The Federalist Society, I want to thank our expert, Vikrant Reddy, for the benefit of his 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.