Terry Technical Correction Act

Mr. Speaker, I thank the chairman of the full committee, and I rise in strong support of H.R. 5455, the Terry Technical Correction Act, which has widespread support from really the people who count that deal with these issues day after day, our law enforcement officers and attorneys general across America.

Mr. Speaker, I include for the Record a letter from several attorneys general, as well as the Major Cities Chiefs Association.

September 2, 2021.

Hon. Chuck Schumer,

Senate Majority Leader,

U.S. Senate, Washington, DC.

Hon. Nancy Pelosi,

Washington, DC.

Hon. Mitch McConnell,

Senate Minority Leader,

U.S. Senate, Washington, DC.

Hon. Kevin McCarthy,

Washington, DC.

Dear Leader Schumer, Leader McConnell, Speaker Pelosi, and

Leader McCarthy: As our jurisdictions' Attorneys General, we

are responsible for protecting the health, safety, and well-

being of our residents. Although our jurisdictions vary in

size, geography, and political composition, we are united in

our commitment to an effective criminal justice system that

safeguards the communities of our states. To that end, a

bipartisan coalition of Attorneys General supported the

passage of the First Step Act of 2018--landmark legislation

that brought common sense improvements to myriad aspects of

the criminal justice system. Central to these reforms was

retroactive relief for individuals sentenced under the

discredited 100-to-1 crack-to-powder cocaine ratio that

Congress abolished in 2010. Following the Supreme Court's

recent opinion in Terry v. United States, however, the lowest

level crack cocaine offenders remain categorically ineligible

for resentencing. We write today to urge Congress to amend

the First Step Act, and to clarify that its retroactive

relief applies to all individuals sentenced under the prior

regime.

Congress enacted the historic First Step Act of 2018 to

modernize the criminal justice system, implementing

comprehensive reform in areas such as corrections, criminal

charging, community re-entry, and beyond. The product of a

unique bipartisan consensus, the Act passed with overwhelming

support from organizations across the ideological spectrum,

including the Heritage Foundation, the American Civil

Liberties Union, Freedomworks, the National Urban League, the

American Conservative Union, the Public Defender Association,

Americans for Prosperity, and the Center for American

Progress, among many others. Over three dozen Attorneys

General supported the Act as a critical tool for

strengthening our criminal justice system and better serving

the people of our states.

One of the First Step Act's key pillars was sentencing

reform. This reform included Section 404, which provides

retroactive relief for individuals sentenced under the

discarded 100-to-1 crack cocaine-to-powder-cocaine ratio that

Congress repudiated through the Fair Sentencing Act of 2010.

That earlier legislation abolished the 100-to-1 ratio going

forward, reflecting the overwhelming consensus that treating

crack cocaine and powder cocaine radically differently

exacerbated racial inequality in the criminal justice system

and resulted in unjustly severe sentences for low-level crack

cocaine users.

But the Fair Sentencing Act applied only to sentences

imposed after the Act's passage. As Senator Cory Booker

explained, it left thousands of ``people sitting in jail . .

. for selling an amount of drugs equal to the size of a candy

bar'' based solely on their sentencing date, underscoring the

need, in Senator Mike Lee's words, to apply the law ``equally

to all those convicted of cocaine and crack offenses

regardless of when they were convicted.'' Congress therefore

included Section 404 in the First Step Act, which allowed

individuals sentenced under the discarded 100-to-1 ratio to

seek discretionary resentencing.

Unfortunately, that critical work remains incomplete. In

Terry v. United States, the Supreme Court concluded that

while Section 404 clearly authorized certain mid- or high-

level crack cocaine offenders to seek resentencing, it did

not extend relief to the lowest-level offenders sentenced

under the prior regime. Specifically, the Court relied on

Section 404's definition of a covered offense as any

``violation of a Federal criminal statute, the statutory

penalties for which were modified by'' the Fair Sentencing

Act. The Court reasoned that because the Fair Sentencing Act

did not formally change the elements or penalties for the

lowest level era offensesg--it merely changed the quantities

needed to trigger mid- and high-level charges--the Act failed

to modify the ``statutory penalties'' for the lowest category

of offenders. As a result, these individuals are now the only

ones sentenced under the earlier crack cocaine quantities

that remain categorically ineligible for the First Step Act's

historic relief.

We urge Congress to close this gap. There is no reason why

these individual--and these individuals alone--should

continue to serve sentences informed by the now-discredited

crack-to-powder ratio. Discretionary relief is unambiguously

available to serious dealers and kingpins sentenced under the

prior regime; extending Section 404's scope would simply

allow individual users and other low-level crack cocaine

offenders to have the same opportunity for a second chance.

We therefore urge Congress to clarify that Section 404 of the

First Step Act extends to all individuals convicted of crack

cocaine offenses and sentenced under the 100-to-1 ratio--

including the lowest level offenders.

We thank you for your leadership on this important matter.

Sincerely,

Karl A. Racine, District of Columbia Attorney General; Rob

Bonta, California Attorney General; William Tong, Connecticut

Attorney General; Leevin Taitano Camacho, Guam Attorney

General; Tom Miller, Iowa Attorney General; Brian Frosh,

Maryland Attorney General; Dana Nessel, Michigan Attorney

General; Aaron D. Ford, Nevada Attorney General; Hector

Balderas, New Mexico Attorney General; Sean D. Reyes, Utah

Attorney General; Phil Weiser, Colorado Attorney General;

Kathleen Jennings, Delaware Attorney General; Kwame Raoul,

Illinois Attorney General; Aaron M. Frey, Main Attorney

General; Maura Healey, Massachusetts Attorney General; Keith

Ellison, Minnesota Attorney General; Andrew Buck, Acting New

Jersey Attorney General; Letitia James, New York Attorney

General; Ellen F. Rosenblum, Oregon Attorney General; Peter

F. Neronha, Rhode Island Attorney General; Mark R. Herring,

Virginia Attorney General; Joshua L. Kaul, Wisconsin Attorney

General;

Josh Shapiro, Pennsylvania Attorney General; T.J. Donovan,

Vermont Attorney General; Robert W. Ferguson, Washington

Attorney General.

Major Cities Chiefs

Association,

October 20, 2021.

Hon. Dick Durbin,

Chairman, Committee on the Judiciary,

U.S. Senate, Washington, DC.

Hon. Cory Booker,

U.S. Senate, Washington, DC.

Hon. Chuck Grassley,

Ranking Member, Committee on the Judiciary,

U.S. Senate, Washington, DC.

Hon. Mike Lee,

U.S. Senate, Washington, DC.

Dear Chairman Durbin, Ranking Member Grassley, Senator

Booker, and Senator Lee: I write on behalf of the Major

Cities Chiefs Association (MCCA) to register our support for

S. 2914, the Terry Technical Corrections Act. The MCCA is a

professional organization of police executives representing

the largest cities in the United States and Canada.

In 2010, Congress reduced the federal sentencing disparity

for crack versus powder cocaine offenses. However, due to an

unclear definition in statute, the Supreme Court recently

held in Terry v. United States that individuals convicted of

some of the least serious crack cocaine offenses are

ineligible to be resentenced under the reduced disparity. The

Terry Technical Corrections Ad will address this issue by

clarifying that all offenders sentenced for a crack cocaine

offense before the disparity was reduced are eligible to be

resentenced. While the MCCA believes Congress should

eliminate the federal sentencing disparity, until that

happens, this legislation will help address inequities in our

criminal justice system related to sentencing for crack

cocaine offenses.

Thank you for your leadership on this important issue.

Please do not hesitate to contact me if the MCCA can be of

any additional assistance.

Sincerely,

Chief Jeri Williams,

Chief, Phoenix Police Department, President, Major Cities

Chiefs Association.

As Justice Thomas noted in his opinion in Terry v. United States, citing my introduction of H.R. 4545, the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007, I have long worked to address the sentencing disparity between crack cocaine and powder cocaine offenses, introducing legislation to eliminate the disparity completely.

Mr. Speaker, I include this opinion that cites this legislation, among others, for the Record.

141 S.Ct. 1858

Supreme Court of the United States

Tarahrick TERRY, Petitioner

v.

That is why I introduced H.R. 5455, the Terry Technical Correction Act, which reaffirms Congress' intent to provide retroactive sentencing relief to all individuals convicted of crack cocaine offenses before the Fair Sentencing Act of 2010 took effect; and now I support Mr. Jeffries' EQUAL Act, which we hope will be on the President's desk.

With the declaration of the war on drugs in the early 1970s began a dramatic rise in the U.S. prison population. In fact, Mr. Speaker, it was teeming over, fueled largely by excessive, unwarranted drug sentences, some for minimal drug sentences and actions, putting particularly young African-American men in incarceration for decades.

The Federal Government played a pivotal role in America's era of mass incarceration. During the 1980s and 1990s, Congress passed several pieces of legislation that moved away from rehabilitation toward excessive punishment.

One such example is the Anti-Drug Abuse Act of 1986, which created mandatory minimum penalties for most drug offenses and established the 100-1 cocaine to crack disparity. We have found that that does not bring down drug use. It does not bring down crime. What brings down crime is an effective rehabilitation system so that law enforcement officers do not have to confront recidivists ever again because we have given them a pathway to enter into society.

As Justice Sotomayor acknowledges in her concurring opinion in Terry, African Americans ``bore the brunt of the disparity.''

Between 1992 and 2006, roughly 80 to 90 percent of those convicted of crack offenses were African American. There were many who sounded the alarm during this time, including the U.S. Sentencing Commission, which repeatedly called upon Congress to revisit the mandatory minimum sentencing structure because of the racial disparities in cocaine versus crack sentencing. Sadly, Congress refused to listen for many years, and they did not see any strong impact on that approach.

Thankfully, Members of Congress, on an increasingly bipartisan manner, have worked hard to reduce the harmful impact of the failed policies of the war on drugs, including putting an end to the crack to powder sentencing disparities.

Those who are supporting us--law enforcement officers, attorneys general--are Republicans and Democrats alike. Through our efforts, we have learned that there is no greater danger to public safety from crack offenders than powder cocaine offenders, and that the 100-1 ratio overstated the relative harmfulness of the two forms of cocaine and diverted Federal resources away from prosecuting the highest level of traffickers.

In 2010, Congress began the process to eradicate the devastating consequences of the poorly conceived war on drugs and the punitive response to the crack epidemic.

We have had circumstances where false warrants were used to enter people's homes under the false premise that they were using drugs. That didn't bring down crime. That didn't help eliminate those who were doing ill to people. That was not the right approach.

The Fair Sentencing Act of 2010 reduced the sentencing disparity to 18-1, and the First Step Act of 2018 made the Fair Sentencing Act retroactive.

Mr. Speaker, although the Terry decision bars crack offenders convicted of offenses involving small amounts of crack--like the 3.9 grams of crack that the petitioner possessed--that do not trigger the mandatory minimum penalties, Congress can address this injustice.

H.R. 5455, aptly named the Terry Technical Correction Act, would guarantee the ability to seek a sentence reduction to all individuals who have unfairly lost years of freedom under the unfounded 100-1 disparity, including those whose requests for sentence reduction was previously denied based on the narrow interpretation of the First Step Act.

While I continue to look forward to the day that we will fully eliminate the powder-to-crack disparity, I thank Representatives Cicilline, Jeffries,

Owens, Massie, and Delegate Holmes Norton for working with me on this crucial bipartisan piece of legislation.

Mr. Speaker, I ask my colleagues to support this. It is long overdue. I also include for the Record a press release from the Maryland Attorney General.

[Press Release from Brian E. Frosh, Maryland Attorney General, Sept. 2,

2021]

Attorney General Frosh Calls on Congress to Clarify First Step Act and

Apply Fair Sentencing Reforms to Low-Level Drug Offenses

Baltimore, MD.--Attorney General Brian E. Frosh today

joined a bipartisan coalition of 25 attorneys general urging

Congress to amend the First Step Act and extend critical

resentencing reforms to individuals convicted of the lowest-

level crack cocaine offenses.

The coalition is calling on legislators to take this needed

step in the wake of the Supreme Court's recent decision in

Terry v. United States, which held that certain mid-level and

high-level crack cocaine offenders could seek resentencing

under the law, but low-level offenders were not eligible.

``The intent of the First Step Act was to correct

disproportionately harsh sentencing. Ironically, the does not

apply to low-level offenders,'' said Attorney General Frosh.

``Congress needs to fix this oversight and ensure that the

law provides relief to those who committed lower-level crimes

and were subject to inequitable sentencing.''

The First Step Act, a landmark criminal justice reform law,

passed Congress with strong bipartisan support in 2018. One

key reform aimed to correct injustices caused by the earlier

crack cocaine vs. powder cocaine sentencing regime. That now-

discredited regime punished users and dealers of crack

cocaine much more harshly than users and dealers of powder

cocaine, which disproportionately harmed communities of

color.

In 2010, Congress passed the Fair Sentencing Act to reduce

the disparity between sentences for crack cocaine and powder

cocaine. However, the law did not help the many people

sentenced for crack cocaine offenses before 2010 who remained

in prison. The First Step Act then included a provision that

made previous drug sentencing reforms retroactive, allowing

those serving harsh sentences imposed under the former

federal law to seek relief.

U.S. Senators Richard J. Durbin, Charles E. Grassley, Cory

A. Booker, and Mike Lee--the drafters of the First Step Act--

confirmed in an amicus brief that the sentencing relief was

intended to apply to all crack cocaine offenders sentenced

before 2010. Nevertheless, in Terry v. United States, the

Supreme Court concluded that while the First Step Act clearly

authorized certain mid- or high-level crack cocaine offenders

to seek resentencing, it failed to extend relief to the

lowest-level offenders.

In today's letter, the attorneys general urge Congress to

close that gap and clarify that the sentencing relief

provided by the First Step Act extends to all individuals

convicted of crack cocaine offenses under the earlier regime,

including the lowest-level offenders. They argue that there

is no reason that only these low-level offenders should

continue to serve sentences informed by now-discredited

standards, and that they should have an opportunity to seek a

second chance.

Attorney General Frosh is joined in the letter by the

attorneys general of California, Colorado, Connecticut,

Delaware, the District of Columbia, Guam, Illinois, Iowa,

Maine, Massachusetts, Michigan, Minnesota, Nevada, New

Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode

Island, Utah, Vermont, Virginia, Washington, and Wisconsin.

Mr. Speaker, I rise in support of H.R. 5455, the ``Terry Technical Correction Act.''

As Justice Thomas noted in his opinion in Terry v. United States, citing my introduction of H.R. 4545, the ``Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007,'' I have long worked to address the sentencing disparity between crack cocaine and powder cocaine offenses--introducing legislation to eliminate the disparity completely.

That is why I introduced H.R. 5455, the ``Terry Technical Correction Act''--which 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.

With the declaration of the ``War on Drugs'' in the early 1970's began a dramatic rise in the U.S. prison population--fueled largely by excessive, unwarranted drug sentences.

The federal government played a pivotal role in America's era of mass incarceration. During the 1980s and 1990s, Congress passed several pieces of legislation that moved away from rehabilitation toward excessive punishment.

One such example is the Anti-Drug Abuse Act of 1986, which created mandatory minimum penalties for most drug offenses, and established the 100-to-1, cocaine to crack disparity.

And, as Justice Sotomayor acknowledges in her concurring opinion in Terry, African Americans ``bore the brunt of the disparity.''

Between 1992 and 2006, roughly 80 to 90 percent of those convicted of crack offenses were African American.

There were many who sounded the alarm during this time, including the U.S. Sentencing Commission, which repeatedly called upon Congress to revisit the mandatory minimum sentencing structure because of the racial disparities in cocaine versus crack sentencing. Sadly, Congress refused to listen for many years.

Thankfully, members of Congress, on an increasingly bipartisan basis have worked hard to reduce the harmful impact of the failed policies of the War on Drugs, including putting an end to the crack to powder sentencing disparity.

Through our efforts, we have learned that there is no greater danger to public safety from crack offenders than powder cocaine offenders, and that the 100-to-1 ratio overstated the relative harmfulness of the two forms of cocaine and diverted federal resources away from prosecuting the highest-level traffickers.

In 2010, Congress began the process to eradicate the devastating consequences of the poorly conceived War on Drugs--and the punitive response to the crack epidemic.

The Fair Sentencing Act of 2010 reduced the sentencing disparity to 18-to-1, and the First Step Act of 2018 made the Fair Sentencing Act retroactive.

Although the Terry decision bars crack offenders convicted of offenses involving small amounts of crack--like the 3.9 grams of crack that the petitioner possessed that do not trigger the mandatory minimum penalties--Congress can correct this injustice.

H.R. 5455, aptly named the ``Terry Technical Correction Act,'' would guarantee the ability to seek a sentence reduction to all individuals who have unfairly lost years of freedom under the unfounded 100 to 1 disparity, including those whose requests for sentence reductions were previously denied based on the narrow interpretation of the First Step Act.

While I continue to look forward to the day that we will fully eliminate the powder to crack disparity, I thank Representatives Cicilline, Jeffries, Owens, and Massie, and Delegate Holmes Norton for working with me on this crucial, bipartisan piece of legislation and ask my colleagues on both sides of the aisle to support it.

Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 5455) to amend the First Step Act of 2018 to permit defendants convicted of certain offenses to be eligible for reduced sentences, and for other purposes, as amended.

Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days to revise and extend their remarks and to include extraneous material on H.R. 5455.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I rise in support of H.R. 5455, which would clarify that the retroactivity provision of section 404 of the First Step Act of 2018 is available to all offenders who were sentenced for a crack offense before the Fair Sentencing Act of 2010 became effective, including individuals convicted of offenses involving small quantities of crack.

After decades of unfair sentences that swept too broadly, most often applied to low-level dealers and impacted minorities disproportionately, Congress has worked to right some of the wrongs of the misguided war on drugs, often on a bipartisan basis. This legislation continues that important effort.

In 1986, in response to a surge in the use of crack cocaine and several high-profile cocaine-related deaths, Congress passed the Anti- Drug Abuse Act, which created mandatory minimum penalties for drug offenses and introduced a 100-1 sentencing disparity between crack cocaine and powder cocaine offenses.

This meant that a person who distributed 5 grams of crack cocaine received the same 5-year mandatory minimum sentence as a person who distributed 500 grams of powder cocaine, and the person who distributed 50 grams of crack cocaine received the same 10-year mandatory minimum sentence as the person who distributed 5,000 grams of powder cocaine.

It soon became evident that this sentencing disparity had also created a significant racial disparity. Four years after Congress passed the Anti-Drug Abuse Act, the average Federal sentence for African-American defendants was 49 percent higher than the average for White defendants.

In 2010, Congress passed the Fair Sentencing Act, which did not eliminate the disparity but which significantly reduced the ratio from 100-1 to 18-1. Unfortunately, that legislation applied only to pending and future cases, leaving thousands of inmates without a path to petition for relief.

In 2018, the bipartisan First Step Act made the Fair Sentencing Act retroactive if an inmate received ``a sentence for a covered offense,'' as defined in section 404 of the Act, providing a pathway to relief for some but not all individuals affected by the sentencing disparity.

Three years later, after roughly 4,000 motions for sentence reductions had been granted, the Supreme Court, in Terry v. United States, limited the availability of sentence reductions under the Fair Sentencing Act, contrary to the intent of Congress.

Based on a narrow reading of the meaning of ``covered offense,'' the Court held that individuals convicted of crack offenses are only eligible for a sentence reduction under the First Step Act if their convictions triggered mandatory minimum penalties.

That means that individuals like Mr. Terry, who possessed less than 4 grams

of crack, are unable to seek sentence reductions, while individuals convicted of sentences involving much larger quantities of crack can seek a sentence reduction, and many have already done so, which is simply absurd and unfair.

The First Step Act was meant to make retroactive sentencing relief available to all individuals sentenced for crack cocaine offenses before the Fair Sentencing Act of 2010 took effect.

As Justice Sotomayor's concurring opinion in Terry reminds us, Congress has numerous tools to correct this injustice, and H.R. 5455, the Terry Technical Correction Act, is one of these tools.

The bill provides a new, expanded definition of ``covered offense'' that includes a list of drug offenses in the criminal code that do not trigger mandatory minimum sentences.

The bill also ensures that no person seeking a sentencing reduction under section 404 will be barred from filing a new petition on the grounds that a judge had previously denied relief based on a determination that the offense of conviction was not a ``covered offense'' under the meaning provided in the First Step Act.

I thank Crime Subcommittee Chairwoman Jackson Lee, Representatives Cicilline, Jeffries, Owens, Massie, and Delegate Holmes Norton for introducing this important bipartisan bill. I urge all of my colleagues to support it, and I reserve the balance of my time.

Mr. Speaker, I yield 4 minutes to the gentlewoman from Texas (Ms. Jackson Lee), a member of the committee.

Mr. Speaker, I yield an additional 30 seconds to the gentlewoman.

Mr. Speaker, H.R. 5455, the Terry Technical Correction Act, is a straightforward bipartisan bill that advances our efforts to make our criminal justice system more fair. I urge my colleagues to support it, and I yield back the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, H.R. 5455 responds to a Supreme Court ruling that held certain low-level drug offenders do not qualify for resentencing under the retroactive provisions of the First Step Act. That was not Congress' intent in adopting the First Step Act.

This problem dates back to the drug epidemic of the 1980s. At that time, Congress enacted harsh penalties for Federal drug offenses, including mandatory minimum sentences.

The Anti-Drug Abuse Act of 1986 created a 100-1 sentencing disparity between crack and powder cocaine, meaning an individual convicted of selling 5 grams of crack cocaine would receive the same sentence as someone convicted of selling 500 grams of powder cocaine.

In 2010, Congress passed the Fair Sentencing Act, which reduced the sentencing disparity between crack and powder from 100-1 to 18-1.

In 2018, Congress passed, and President Trump signed, the First Step Act into law. The First Step Act made the sentencing disparity provision retroactive, allowing individuals convicted of or sentenced for Federal drug offenses related to cocaine to move for a resentencing.

However, that law did not specifically address individuals whose crimes did not trigger the mandatory minimums. As a result, some of those individuals are serving longer sentences than those whose offenses triggered the mandatory minimums. This legislation today makes technical corrections and brings parity to crack-related offenses.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I urge my colleagues to support this bill, and I yield back the balance of my time.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.