Sometimes, deep, conflicting social currents clash in titanic movements and romantic prose. Other times, they are submerged under rather drier land; underground rivers in a desert of language. On Monday, the Supreme Court, in a unanimous decision, held that decades of roiling political turmoil surrounding the crack-cocaine epidemic could not compel a rereading of a single, highly consequential statutory clause, even if its primary authors pressed a different interpretation. Thus, in Terry v. United States, the Supreme Court held that low-level crack-cocaine dealers are not eligible for resentencing under the First Step Act, which in 2018 made higher-level offenders who received mandatory minimum sentences eligible for resentencing.
The opinion was written by Justice Clarence Thomas. One might speculate – and it is pure speculation on my part – that it was not coincidental that the court’s only Black justice was tasked with writing a case with deep racial implications. As recounted earlier, in 2008, Tarahrick Terry, then in his early 20s, was arrested in Florida for carrying just under 4 grams of crack cocaine. He was charged under 21 U.S.C. § 841(a)(1), which outlaws possession with intent to distribute crack cocaine, and sentenced under 21 U.S.C. § 841(b)(1)(C), a provision of the 1986 Anti-Drug Abuse Act that created a 100:1 disparity in the punishment of crack cocaine compared to powder cocaine. Section 841(b) sets forth three tiers of penalties, with Tier 3 offenses typically involving smaller amounts of drugs than Tiers 1 or 2. Terry was sentenced under Tier 3. Further, because he had two prior minor convictions as a teenager, he was punished as a “career criminal” and sentenced to just over 15 1/2 years imprisonment under the career-offender provisions of the U.S. Sentencing Guidelines.
**** Sotomayor, concurring
fn1 1 I do not join Part I of the Court’s opinion because it includes an unnecessary, incomplete, and sanitized history of the 100-to-1 ratio. The full history is far less benign. The Court, ante, at 2, n. 2, emphasizes Black leaders’ support for “tough-on-crime” policies, but ignores that these leaders “also called for federal investment in longer-term, rootcause solutions such as welfare, education, and job training programs.” J. Forman, Locking Up Our Own 157 (2017) (Forman). But “[t]he help never arrived,” leaving Black communities with “just the tough-on-crime laws” and little else. Id., at 12. Nor does the Court mention that the “ ‘careful deliberative practices of the Congress were set aside’ ” for the 1986 omnibus crime bill that included the 100-to-1 ratio, as part of a “rush to pass dramatic drug legislation before the midterm elections.” Sklansky, Cocaine, Race, and Equal Protection, 47 Stan. L. Rev. 1283, 1294, and n. 55 (1996) (Sklansky). Indeed, the “legislative history offers no explanation for the selection of a ratio of 100:1,” save that it “was the highest ratio proposed.” Id., at 1297. There is, by contrast, an extensive record of race-based myths about crack cocaine that the media “branded onto the public mind and the minds of legislators,” United States v. Clary, 846 F. Supp. 768, 783 (ED Mo. 1994), and that appear in the Congressional Record, see Sklansky 1291–1295, and nn. 49–60. Most egregiously, the Court barely references the ratio’s real-world impact (discussed infra, at 3–4), and disregards the fact that, “as the racial effects of mandatory minimums and the crack/cocaine disparity became apparent, the [Congressional Black Caucus] came together in unanimous and increasingly vocal opposition to the law.” Forman 205. the disparity were introduced almost every year from 1993 to 2009. Yet Congress did nothing until 2010.
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