It was 35 years ago, amid intense media coverage of a “crack epidemic” and the overdose death of basketball star Len Bias, when Congress passed the Anti-Drug Abuse Act of 1986 with the 100-to-1 powder/crack cocaine quantity ratio defining severe mandatory minimum sentencing terms. As the US Sentencing Commission explained in this 1995 report, Congress “dispensed with much of the typical deliberative legislative process, including committee hearings,” when enacting this law, and “the abbreviated, somewhat murky legislative history simply does not provide a single, consistently cited rationale for the crack-powder cocaine penalty structure.” Though the 100-to-1 ratio lacked any sound rationale in 1986, thousands of disproportionately black persons started receiving disproportionately severe statutory and guideline sentences for crack offenses in the years that followed.
Not long thereafter, in 1991 the US Sentencing Commission detailed to Congress that “lack of uniform application [of mandatory minimums] creates unwarranted disparity in sentencing” and that data showed “differential application on the basis of race.” Giving particular attention to cocaine sentencing, in 1995 the US Sentencing Commission explained to Congress that there was considerable racial disparity resulting from the 100-1 quantity ratio and that sound research and public policy might “support somewhat higher penalties for crack versus powder cocaine, but a 100-to-1 quantity ratio cannot be recommended.” In other words, three decades ago, an expert agency told Congress that mandatory minimums were generally bad policy and created racial injustice; over a quarter century ago, that agency also told Congress that crack minimums were especially bad policy and created extreme racial injustice.
In a sound and just sentencing universe, these reports and recommendations would have prompted immediate action. But it took Congress another full 15 years to even partially address these matters. After tens of thousands of persons were sentenced under the 100-to-1 ratio, Congress finally in 2010 passed the Fair Sentencing Act to increase the amount of crack need to trigger extreme mandatory minimum sentences. The FSA did not do away with any mandatory minimums, and it still provided for much smaller quantities of crack to trigger sentences as severe as larger quantities of powder, but it still bent the arc of the federal sentencing universe a bit more toward justice. However, it did so only prospectively as Congress did not provide for retroactive application of its slightly more just crack sentencing rules in the FSA.
Eight years later, Congress finally made the Fair Sentencing Act’s reforms of crack sentences retroactive through the FIRST STEP Act. But, of course, no part of this story lacks for drama and racialized trauma, as the reach of retroactivity remains contested in some cases. So, the Supreme Court will be hearing oral argument on Tuesday, May 4 in Terry v. US to determine if Tarahrick Terry, who was sentenced in 2008 to over 15 years in prison after being convicted of possessing with intent to distribute about 4 grams of crack cocaine, can benefit from the FIRST STEP Act’s provision to make the Fair Sentencing Act reforms retroactive.
All the briefing in Terry is available here at SCOTUSblog, and Ekow Yankah has a great preview here titled “In final case the court will hear this term, profound issues of race, incarceration and the war on drugs.” Here is how it starts:
Academics naturally believe that even obscure cases in their field are underappreciated; each minor tax or bankruptcy case quietly frames profound issues of justice. But, doubtful readers, rest assured that Terry v. United States — which the Supreme Court will hear on Tuesday in the final argument of its 2020-21 term — packs so many swirling issues of great importance into an absurdly little case, it can hardly be believed. The national debate on historical racism in our criminal punishment system? Yes. Related questions of how we address drug use with our criminal law rather than as a public health issue? Undoubtedly. Redemption after committing a crime? Of course. The ramifications of a contested presidential election? Sure. The consequences of hyper-technical statutory distinctions on the fate of thousands? Goes without saying. A guest appearance by a Kardashian? Why not.
Henry Gass at the Christian Science Monitor has another great preview piece here under the headline “On the Supreme Court docket: Fairness, textualism, and crack cocaine.” Here is an excerpt:
Mr. Terry’s punishment followed war-on-drugs-era federal guidelines that treated a gram of crack cocaine 100 times worse than a gram of powder cocaine. The sentencing disparity has come to be viewed, by critics spanning the political spectrum, as one of the great injustices of the war on drugs. It’s been one of the key drivers of mass incarceration, those critics say, in particular subjecting thousands of low-level offenders — the vast majority young people of color – to long prison terms.
In the past decade Congress has reduced almost all of those sentences — all except for Mr. Terry, and thousands of low-level crack offenders like him. It’s a deferral of justice that has brought him into an unlikely alliance with congressional leaders from both parties, as well as former federal judges, prosecutors, and, latterly, the Biden administration.
On Tuesday it will bring him to the U.S. Supreme Court, when the justices will hear arguments on whether this vestige of the tough-on-crime era should be eliminated. His case is relatively narrow and technical, but in a country — and a Congress — that has come to roundly condemn drug policies like the crack powder sentencing disparity, it’s significant.