On Monday, the Supreme Court decided two cases involving questions of criminal law. Neither case had garnered much media attention, and the outcome of the cases reflected the “bipartisan” nature of the views as expressed by the nine Justices. Both cases were important because they resolved splits among the Circuit Courts of Appeal on how the respective issues should be determined by trial courts during criminal cases.
Greer v. United States was decided by the Court on an 8-1 vote, with Justice Sotomayor concurring in part, dissenting in part, and dissenting in the outcome.
Terry v. United States was decided by the Court 9-0.
If the Biden Justice Department had been voting on the outcome in Terry, it would have been 9-1 — the Biden Justice Department advanced a position in the case that all nine Justices rejected. In getting to that point, the Biden Justice Department reversed from the position it had taken while it was called the Trump Justice Department — the position that was endorsed on Monday by all nine Justices.
It did so for transparently political reasons — the position it adopted was being advocated for by black political activists.
Terry involved a not terribly complicated issue of resentencing on a federal drug conviction involving crack cocaine. Sentencing for federal drug offenses is largely driven by the quantity of drugs involved in the crime. When crack cocaine (“cocaine base”) was added to the mandatory minimum provisions of federal drug statutes it was treated more harshly than powder cocaine by a factor of 100:1. In other words, sentences were the same for a person possessing 5 grams of crack cocaine as for possessing 500 grams of powder cocaine. Each respective amount triggered a mandatory minimum prison sentence. There were three “tiers” of offenses involving crack cocaine and mandatory minimum sentences — 0-5 grams, 5-50 grams, and 50 grams and above.
Two laws were passed by Congress to address this disparity — the Fair Sentencing Act in 2010 and the First Step Act in 2018. The Fair Sentencing Act adjusted the quantities to address the disparity by the
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