MiAngel Cody, lead counsel at the Decarceration Collective, called the Supreme Court decision in an interview with NBC News “a shocking loss.” Cody told the news network she once represented a drug “kingpin” guilty of holding thousands of kilos of crack who was freed under the First Step Act, but the court’s decision means the same protection won’t be extended to low-level offenders. “They just had the door shut in their face, and that’s completely unfair,” Cody said. “That makes no sense from a public safety perspective.”
The Supreme Court case focused on the conviction of Tarahrick Terry, a Black man sentenced in 2008 to 15 years in prison for possessing 3.9 grams of crack cocaine following Congress’ three-tiered drug sentencing system, which was signed into law in 1986. The Anti-Drug Abuse Act of 1986 was based on what we now know to be an erroneous belief that crack cocaine was “more problematic and dangerous than powder,” but at the time, the legislation imposed a 100-to-1 sentencing scheme, equating one gram of crack with 100 grams of powdered cocaine in its three-tiered system.
“The first two carried mandatory minimum sentences based on drug quantity: a 5-year mandatory minimum [triggered by either 5 grams of crack cocaine or 500 grams of powder cocaine] and a 10-year mandatory minimum [triggered by either 50 grams of crack or 5 kilograms of powder] …,” the Supreme Court said in its written opinion. “The third penalty differed from the first two: it did not carry a mandatory minimum sentence, did not treat crack and powder cocaine offenses differently, and did not depend on drug quantity.” Terry’s sentence was under the third tier.
“Two years later, Congress passed the Fair Sentencing Act of 2010, which increased the crack quantity thresholds from 5 grams to 28 for the 5-year mandatory minimum and from 50 grams to 280 for the 10-year mandatory minimum …” the Court explained in its opinion. “But Congress did not make this change retroactive until 2018, when it enacted the First Step Act. After that, Petitioner sought resentencing on the ground that he was convicted of a crack offense modified by the Fair Sentencing Act. The District Court denied his motion, and the Eleventh Circuit affirmed.”
Justice Sonia Sotomayor wrote in an opinion that she agrees with the Court’s interpretation of the First Step Act and concurs in the judgment, but she disagreed with Justice Clarence Thomas’ rendition of what triggered the need for the act. “In the mid-1980s, the United States witnessed a steep surge in the use of crack cocaine, and news of high-profile, cocaine-related deaths permeated the media,” Thomsas wrote. “Witnesses before Congress, and Members of Congress themselves, believed that a ‘crack epidemic’ was also fueling a crimewave. Crack, they said, was far more addictive and dangerous than powder cocaine; it was cheaper and thus easier to obtain; and these and other factors spurred violent crime.” Sotomayor called the explanation “an unnecessary, incomplete, and sanitized history of the 100-to-1 ratio.
“The full history is far less benign,” Sotomayor wrote. She wrote that the court “emphasizes Black leaders’ support for ‘tough-on-crime’ policies, but ignores that these leaders ‘also called for federal investment in longer-term, root cause solutions such as welfare, education, and job training programs.’” That help, however, never came, “leaving Black communities with ‘just the tough-on-crime laws’ and little else,'” Sotomayor wrote. She called on Congress to change the law. “While career offenders convicted under subparagraph (A) or subparagraph (B) can now seek resentencing, that door remains closed to career offenders convicted under subparagraph (C),” Sotomayor wrote. “This is no small injustice.” She later added: “Fortunately, Congress has numerous tools to right this injustice.”
Rebecca Kavanagh, a criminal defense attorney and legal analyst, criticized Sotomayor’s decision in a Twitter thread on Monday: “I see certain people on here trying to rehabilitate the liberal justice who wrote a separate concurring opinion, but basically signed off on the decision.
“People talk about the crack cocaine/powder cocaine sentencing disparity like it’s a thing of the past. Nope. It used to be 100:1. It’s now 18:1,” Kavanagh tweeted.