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Bipartisan Judiciary Committee Members Introduce Legislation to Clarify Retroactivity of Crack Cocaine Sentencing Reform

Legislation comes on the heels of SCOTUS decision in Terry v. United States; clarifies that retroactivity is available to all offenders who were sentenced for a crack cocaine offense before the Fair Sentencing Act

Washington, October 1, 2021

Washington, D.C. - Today, House Judiciary Subcommittee on Crime Chair Sheila Jackson Lee (D-TX) and Judiciary Committee Chairman Jerrold Nadler (D-NY), along with Subcommittee Members David N. Cicilline (D-RI), Burgess Owens (R-UT), and Thomas Massie (R-KY), introduced the bipartisan Terry Technical Correction Act, which clarifies that all offenders who were sentenced for a crack cocaine offense before the Fair Sentencing Act of 2010 can apply for its retroactive application under Section 404 of the First Step Act, including individuals convicted of the lowest level crack offenses. Section 404 of the First Step Act allows crack cocaine offenders to request a sentence reduction pursuant to the Fair Sentencing Act.

Earlier this year in Terry v. United States, 141 S. Ct. 1858 (2021), the Supreme Court held that low-level crack offenders, whose conduct did not trigger a mandatory minimum penalty, do not qualify for resentencing under Section 404 of the First Step Act.  The effect of this holding is that individuals convicted of the offenses with the lowest levels of crack cocaine are not eligible for retroactive relief, whereas other offenders are.

"The Terry Technical Correction Act reaffirms Congress’s intent to provide retroactive sentencing relief to all individuals convicted of crack cocaine offenses before the Fair Sentencing Act of 2010 took effect," said Subcommittee Chair Jackson Lee. "As the Supreme Court noted in Terry, I have worked to address the sentencing disparity between crack cocaine and powder cocaine offenses since 2007. Today, I am proud to introduce bipartisan legislation that is one more step in our efforts to correct a disparity that has damaged communities of color for generations and stolen years from thousands of individuals and their families. I thank Representatives Nadler, Cicilline, Owens, and Massie as well as Senators Durbin, Grassley, Booker, Lee, Paul, and Klobuchar for their leadership on this important issue.

"When Congress passed the First Step Act, I had understood that the legislation intended to make retroactive sentencing relief available to all individuals sentenced for crack cocaine offenses before the Fair Sentencing Act of 2010 took effect, including those convicted of low-level crack offenses," said Chairman Nadler. "The Court held to the contrary in its recent Terry decision, but importantly Justice Sotomayor’s concurring opinion stated that Congress has “numerous tools” to correct this injustice. The Terry Technical Correction Act will do just that, and I am proud to support this bipartisan, bicameral legislation."

"As Congress moves towards reforming our country’s inconsistent and harmful sentencing laws, this bill is essential in clarifying the true intent of Congress’s sentencing reform work," said Representative Cicilline. "In 2010, Congress passed The Fair Sentencing Act to reduce the disparities in sentencing guidelines between crack and powder cocaine, which disproportionately harm communities of color. This year, the Supreme Court held that the 2018 First Step Act, which made sentencing reforms in the Fair Sentencing Act apply retroactively, was inapplicable to offenses for which there were no mandatory minimums –  often the mildest offenses. This bill is a simple fix to that ruling to ensure that our lowest-level offenders, who commit crimes that do not carry mandatory minimums, still qualify for the sentence reductions provided in the Fair Sentencing Act. It will ensure sentencing reforms are applied in the way Congress originally hoped, and I am proud to cosponsor this legislation."

"The Terry Technical Correction Act is a common-sense solution clarifying the potential sentencing reductions to low-level crack offenses in the First Step Act," said Representative Owens. "I’m proud to support this legislation and its efforts to reduce the rate of recidivism in Utah and across the country."

U.S. Senators Dick Durbin (D-IL), Chair of the Senate Judiciary Committee; Chuck Grassley (R-IA), Ranking Member of the Senate Judiciary Committee; Cory Booker (D-NJ); and Mike Lee (R-UT) introduced bipartisan companion legislation in the U.S. Senate. 

The Terry Technical Correction Act is supported by the following organizations: American Civil Liberties Union, American Conservative Union, Americans for Prosperity, Dream Corps JUSTICE, Drug Policy Alliance, Due Process Institute, FAMM, Federal Public and Community Defenders, Justice Action Network, Justice Roundtable, Law Enforcement Leaders, The Leadership Conference on Civil and Human Rights, Major Cities Chiefs Association, National Association of Criminal Defense Lawyers, National District Attorneys Association, Niskanen Center, Prison Fellowship, R Street Institute, Right on Crime, and The Sentencing Project.

Full text of the legislation is available HERE