US Supreme Court rejects sentence reductions for minor crack offences

The New York Times

June 15, 2021: The Supreme Court on Monday unanimously ruled that the First Step Act, the bipartisan 2018 law that overhauled aspects of the criminal justice system, did not require new sentences for some low-level drug offenders.

Though all of the justices agreed on the bottom line, the decision nonetheless featured a sharp disagreement about the background of a 1986 law that had subjected drug dealers selling crack cocaine to the same sentences as ones selling 100 times as much powder cocaine.

Justice Sonia Sotomayor issued a concurring opinion accusing the majority of including “an unnecessary, incomplete and sanitized history” of the law, one she said had imposed disproportionately harsh sentences on Black offenders.

Justice Clarence Thomas, writing for eight members of the court, said the 1986 law had enjoyed overwhelming bipartisan support, adding that “a majority of the Congressional Black Caucus co-sponsored and voted for the bill.”

“Many black leaders in that era professed two concerns,” Justice Thomas wrote. “First, crack was fueling crime against residents in inner cities, who were predominantly black,” he wrote, noting that the president of an N.A.A.C.P. chapter in the Washington region had called crack “the worst thing to hit us since slavery.”

“Second,” Justice Thomas wrote, “there were concerns that prosecutors were not taking these kinds of crimes seriously enough because the victims were disproportionately black.”

Justice Sotomayor responded that “the full history is far less benign.”

“Most egregiously,” she wrote, “the court barely references the ratio’s real-world impact” of the sentencing disparities between offenses involving crack and powder cocaine.

“Black people bore the brunt of this disparity,” she wrote. “Around 80 to 90 percent of those convicted of crack offenses between 1992 and 2006 were Black, while Black people made up only around 30 percent of powder cocaine offenders in those same years.” (Justice Sotomayor capitalized Black throughout her opinion, a contrast with Justice Thomas.)

The 1986 law established three tiers of offenses and called for mandatory minimum sentences in two of them: 10 years for 50 grams of crack or five kilos of powder; five years for five grams of crack or 500 grams of powder; and no minimum for possession with intent to distribute an unspecified amount of either drug.

Tarahrick Terry was convicted of the third kind of offense in 2008, pleading guilty to possession with intent to distribute about four grams of crack or, as Justice Sotomayor wrote, “less than the weight of four paper clips.” He was found to be a career offender and sentenced to about 15 years in prison.

In 2010, Congress enacted the Fair Sentencing Act, which reduced the disparity between crack and powder to 18 to 1. It did that by increasing the crack threshold to 280 grams for mandatory 10-year sentences and to 28 grams for mandatory five-year sentences. It did not change the third tier, the one that did not specify a quantity or impose a minimum sentence.

The First Step Act made those changes retroactive and made some prisoners sentenced for crack offenses eligible for reduced sentences. Mr. Terry sought a new sentence under the new law and lost in the lower courts.

Justice Thomas agreed, saying the First Step Act applied only to penalties that had been modified by the 2010 law. The part of the law under which Mr. Terry had been convicted, Justice Thomas wrote, had not been modified, meaning he was not entitled to relief.

President Donald J. Trump frequently invoked the First Step Act as one of his administration’s major accomplishments, but his Justice Department endorsed the position the Supreme Court adopted in the case, Terry v. United States, No. 20-5094.

The Biden administration switched positions in the case on the day the government’s main brief was due, siding with Mr. Terry.