Whether all individuals sentenced for crack cocaine offenses under a now-amended federal statute that created a 100-to-1 disparity between the treatment of cocaine in its crack and powder forms are eligible for resentencing under amendments made by the First Step Act of 2018.

The ACLU and the ACLU of Pennsylvania, joined by the R Street Institute and the Rutherford Institute, filed a cross-ideological amicus brief urging the Supreme Court to grant certiorari and afford individuals the opportunity for resentencing that Congress sought to give them in the First Step Act.  Amici disagree on numerous issues but agree that many criminal sentences are overly harsh.

The crack-powder differential in the federal criminal law resulted in vast racial disparities, as crack cocaine defendants were disproportionately Black, while powder cocaine defendants were not.  Responding to longstanding and widespread criticism, Congress first enacted the Fair Sentencing Act of 2010, which reduced sentences for crack cocaine going forward (and reduced the disparity between crack and powder to 18-to-1). Then, in 2018, Congress enacted the First Step Act, which made the changes in the Fair Sentencing Act retroactive.

Our brief argues that those changes affect all sentences for crack cocaine offenses imposed when the 100-to-1 crack-powder disparity was in effect, as several courts of appeals have held. Yet under the contrary interpretation adopted by the U.S. Court of Appeals for the Third Circuit in this case, however, only those convicted of possessing large amounts of crack cocaine would get the benefit of retroactive resentencing, while those convicted of small amounts would not. That perverse result rests on a misreading of the text of the statute and frustrates its ameliorative purpose.  Amici argue that the First Step Act made all those sentenced for crack cocaine offenses under pre-Fair-Sentencing-Act penalties eligible to seek resentencing under the amended statute.

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