Crack and Mandatory Minimum Sentences (Part 2)

Justice Thomas concluded with the following in relevant part: A crack offender is eligible for a sentence reduction under the First Step Act only if convicted of a crack offense that triggered a mandatory minimum sentence. The First Step Act makes an offender eligible for a sentence reduction only if the offender previously received “a sentence for a covered offense.” §404(b), 132 Stat. 5222. The Act defines “ ‘covered offense’ ” as “a violation of a Federal criminal statute, the statutory penalties for which were modified by” certain provisions in the Fair Sentencing Act. §404(a), ibid.

The Fair Sentencing Act modified the statutory penalties for offenses that triggered mandatory minimum penalties because a person charged with the same conduct today no longer would face the same statutory penalties that they would have faced before 2010. For example, a person charged with knowing or intentional possession with intent to distribute at least 50 grams of crack was subject to a 10-year mandatory minimum before 2010. Now, he would be subject only to a 5-year mandatory minimum. But the Fair Sentencing Act did not modify the statutory penalties for petitioner’s offense. Before 2010, a person charged with petitioner’s offense—knowing or intentional possession with intent to distribute an unspecified amount of a schedule I or II drug—was subject to statutory penalties of imprisonment of 0-to-20 years and up to a $1 million fine, or both, and a period of supervised release. After 2010, a person charged with this conduct is subject to the exact same statutory penalties. Petitioner thus is not eligible for a sentence reduction.

Justice Sotomayor filed an opinion concurring in part and concurring in the judgment. Concurring opinions like this are common with cases before the United States Supreme Court. They give the impression that individual justices are suspicious of how other justices opinions will be used as precedent in future cases. Here, Justice Thomas is probably the most pro-prosecution member of the Court. Justice Sotomayor is probably the most pre-defense member.