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Date: Nov. 2021
From: Harvard Law Review(Vol. 135, Issue 1)
Publisher: Harvard Law Review Association
Document Type: Article
Length: 85,227 words
Lexile Measure: 1870L

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CONTENTS INTRODUCTION I. ELEMENTS OF REGIME CHANGE A. Switching Sides 1. Enlisting the Court 2. The Interests of the United States B. A New Order 1. The Legal Regime 2. The Bureaucracy II. IN DEFENSE OF POWER A. Asserting Power 1. Democracy and Social Welfare 2. Presidential and Political Control 3. Political Stare Decisis B. In Relation to Congress III. THE PLACE FOR COURTS A. Procedural Order 1. Changing Positions and Rationality Review 2. A Word About Deference B. Capacity to Govern 1. Designing the State 2. Against the State C. Regime Conflict 1. The Wages of Conflict 2. The Supreme Court's Capacity for Compromise CODA: WHO VOTES AND WHO COUNTS CONCLUSION


On the last day of oral argument this Term, in an atypical May convening, the Justices of the Supreme Court grappled with how to integrate two recent reforms to the federal sentencing regime in the case of Terry v. United States. (1) In 2010, Congress had enacted the Fair Sentencing Act (2) and reduced the by-then notorious 100:1 sentencing disparity between crack and powder cocaine offenses to 18:1. The Act was a triumph for criminal justice reformers after decades of advocacy highlighting the racially disproportionate and loaded nature of the disparity. (3) In 2018, Congress then enacted the First Step Act (4) to complete its work. In an amicus brief to the Supreme Court, four senators who cosponsored the First Step Act described it as encompassing a "historic bipartisan coalition--the likes of which, over the last several decades, Congress has rarely seen," one that "came together to bring greater fairness and justice to the Nation's criminal justice system." (5) In an era marked by partisan rancor and legislative torpor, this significant criminal justice enactment rang out as the kind of reform still possible under the right circumstances. Section 404 of the First Step Act, "[c]ritical to that coalition," applied the 2010 changes to the crack and powder cocaine sentencing ranges retroactively, enabling offenders still in prison to apply for resentencing under the fairer terms. (6)

Tarahrick Terry was denied this opportunity. Federal prosecutors argued (and the Eleventh Circuit agreed) that section 404 did not apply to the drug offense under which he had been convicted for possessing just under four grams of crack cocaine--the bottom tier on the ladder of offenses involving possession with intent to distribute. (7) During his original sentencing under the 1986 Anti-Drug Abuse Act, (8) coupled with the relevant enhancements under the Federal Sentencing Guidelines, Terry faced a sentencing range of no more than thirty years, and the district court ultimately imposed a sentence of 188 months, followed by a period of supervised release. (9) With the benefit of the First Step Act, the upper limit on his sentence would have been twenty years, which in his view almost certainly would have translated into a substantially lower sentence than he received. (10) As he explained in his petition for certiorari, the evidence from the first year of the First Step Act has been...

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Gale Document Number: GALE|A683074832