Supreme Court Decides Two Change-in-Law Questions

The Supreme Court decided two cases today dealing with how to address existing cases when the law changes. Greer v. United States, No. 19-8709, addresses the situation where the defense lawyer does not object at trial, because the law seems settled at the time, but the Supreme Court later decides to the contrary. Terry v. United States, No. 20-5904, addresses which inmates convicted prior to the First Step Act can get their sentences for crack cocaine offenses reduced.

In Greer, two defendants in separate cases were convicted of being a felon in possession of a firearm. One was convicted in a jury trial without an instruction to the jury that the defendant had to know he was a felon. The other pled guilty without being advised that such knowledge was an element of the offense.

At the time, the courts of appeals were unanimous that such knowledge was not an element, and the law seemed settled. But the Supreme Court decided to the contrary in Rehaif v. United States in 2019. So what do we do about cases pending on appeal when the change is made.

The general rule is the “plain error” doctrine. Normally, a defendant must object at trial for an issue to be considered on appeal. Rule 52(b) of the Federal Rules of Criminal Procedure make an exception for errors that are “plain” at the time of the appeal, regardless of whether they were plain at the time of the trial. There is an additional requirement, though. The error must affect “substantial rights.” Generally, that means “a reasonable probability that, but for the error, the outcome of the proceeding would have been different.” This avoids pointless reversals for defendants who would surely have been convicted anyway had the procedure now deemed proper been followed at the time.

For the Rehaif rule, almost all convicted felons know they are convicted felons. The cases that fall into a gray zone where one might not know are the exception, not the rule. The two convicts in this case do not qualify for the plain-error rule.

In the mid-1980s, at the height of the crack cocaine crisis, Congress sharply reduced the amount of crack cocaine one needed to possess to be eligible for enhanced sentences. Just 1% of the amount of powder cocaine needed for an enhancement would qualify if the cocaine were in crack form. Justice Thomas’s opinion for eight Justices notes a bit of the legislative history to refute the common but bogus claim that this law was motivated by racism:

[Footnote 2] The Act passed the Democratic-controlled House, where it was introduced, 392 to 16. H. R. 5484, 99th Cong., 2d Sess. (1986); 132 Cong. Rec.23003–23004 (1986). It passed the Republican-controlled Senate 97 to 2. Id., at 27251–27252. A majority of the Congressional Black Caucus cosponsored and voted for the bill. Compare id., at 23003, with Hearing before the Congressional Black Caucus, “Brain Trust on Aging” and the House Select Committee on Aging, 99th Cong., 1st Sess., iii (1985). Many black leaders in that era professed two concerns. First, crack was fueling crime against residents in inner cities, who were predominantly black. For example, the president of an NAACP chapter in the D. C. region called crack “ ‘the worst thing to hit us since slavery,’ ” a sentiment echoed by the leading black newspaper in Los Angeles. J. Forman, Jr., Locking Up Our Own 158 (2017). Second, there were concerns that prosecutors were not taking these kinds of crimes seriously enough because the victims were disproportionately black. In the words of John Ray, a D. C.council member who spearheaded a successful effort to create mandatory minimum penalties: “ ‘Black crimes against blacks get very low sentences,’ ” unlike crimes against whites. Id., at 132.

Later, the 100-to-1 ratio was widely recognized as too high. In 2010, Congress lowered it to 18-to-1. In the First Step Act of 2018, Congress provided for retroactive reductions for inmates sentenced to mandatory minimums under the pre-2010 law.

Defendant Tarahrick Terry sought reduction of sentence but was denied for the obvious reason that he was not sentenced under the 100/1 ratio in the first place.

Petitioner initially sought resentencing under the new, retroactive Guidelines. But because his sentence was based on his recidivism, not his drug quantity, his attempt was unsuccessful. After Congress enacted the First Step Act, petitioner again sought resentencing, this time contending that he falls within the category of crack offenders covered by that Act. The District Court denied his motion, and the Eleventh Circuit affirmed, holding that offenders are eligible for a sentence reduction only if they were convicted of a crack offense that triggered a mandatory minimum.

Once again, the statute means what it says. The retroactivity provision only covers the offenses it specifies, which are crack offenses covered by the old ratio, not other offenses.

The Government originally opposed the reduction, but under the new Administration DoJ switched sides and supported the defendant’s position. As is usual in this situation, the Court appointed an amicus to argue in support of the lower court’s judgment. Such appointed amici invariably get the thanks of the Court and usually get a reversal, but this time the amicus won. Not only that, but the Court was unanimous in the judgment and the main part of the opinion.

Justice Sotomayor did not join Part I, with the footnote quoted above, and she wrote separately to make a pitch for further sentence-reducing laws by Congress.