From Ekow Yankah
on May 3, 2021
at 11:03 a.m.
Supreme Court will hear controversy over inequality in crack cocaine convictions (Josefkubes via Shutterstock).
Scientists, of course, believe that even obscure cases in their field are underestimated; Every minor tax or bankruptcy case quietly frames deep questions of justice. But, dubious readers, rest assured that Terry v United States – what the Supreme Court will hear Tuesday in the final argument of his 2020-21 term – is wrapping so many swirling issues of great concern into one absurdly small case that it hardly does is possible to be believed. The national debate about historical racism in our prison system? Yes. Related questions, how do we approach drug use with our criminal law rather than a public health issue? No doubt. Salvation After Committing a Crime? Naturally. The consequences of a controversial presidential election? For sure. The consequences of hypertechnical legal distinctions on the fate of thousands? Of course; that goes without saying, even without words. A guest appearance by a Kardashian? Why not.
In 2008, Tarahrick Terry, then in his early twenties, was arrested in Florida for carrying about 4 grams of crack cocaine, which is roughly the weight of four paper clips. He has been charged under 21 USC § 841 (a) (1), which prohibits the possession of crack cocaine for the purpose of distributing crack cocaine. He was sentenced to just over 15 1/2 years in prison under 21 USC § 841 (b) (1) (C).
His sentence was the result of the 1986 Anti-Drug Abuse Act, which created a 100: 1 inequality in the punishment of crack cocaine versus cocaine powder. Under the law, a person arrested for crack cocaine was sentenced to the same sentence as a person arrested for 100 times the amount of cocaine powder. The inequality in conviction was not caused by differences in the drugs themselves; Despite the popular myth, both drugs have the same effects on the body. Rather, it was the social, political and above all racist values of drugs that gave birth to the law. Although crack was used by more whites, it was considered a black downtown drug, its addiction was mythicized, and its threat was hyped as existential by the media. There’s no denying this: an addictive drug that hit already beleaguered neighborhoods created drug markets and violence. In fact, many African American communities have even denied pro-social methods of dealing with the crime wave, often calling for harsher punishment. What is clear is that the crack panic has been broken through the racist lens of the nation, resulting in an incessant hard crime policy that was reflected in the 1986 Anti-Drug Abuse Act and culminated in the 1994 Anti-Violent Crime Act.
The 100: 1 disparity in the condemnation of crack cocaine symbolized the racial differences in dealing with drug addiction in black and white communities, made even more evident by the changes in public sentiment in the current, much larger, “white” opioid epidemic become. In 2010, President Barack Obama and Congress addressed hitherto iconic inequality and passed the Fair Convictions Act that reduced inequality to 18: 1 and removed the mandatory five-year prison sentence for crack.
Because so many convicted under the discriminatory 100: 1 difference remained in jail, President Donald Trump and a non-partisan Congress passed the First Step Act in 2018, allowing retrospective sentencing reforms and past convictions to be re-sentenced. In a divisive presidency, the First Step Act received Trump’s rare bipartisan praise, which brought together an unlikely coalition of White House advisors, including Jared and Ivanka Trump, and criminal justice reform advocates from both left and right. Indeed, according to political history, the bill owed its endorsement to Kim Kardashian West. Kardashian was touched by the story of 63-year-old Alice Johnson, a first-time drug abuser in 1993 who is now a great-grandmother and served a life sentence. It was this prominent lobbying by girlfriend Ivanka Trump to advance her father’s reform that ultimately led to the most significant criminal law of his presidency.
After that it gets weird.
The First Step Act reassessment applies retrospectively to individuals convicted of a “covered crime” defined as a “violation of federal criminal law whose statutory penalties have been amended by Section 2 or 3 of the Fair Sentencing Act of 2010 … that has been changed committed before August 3, 2010. “Wait a minute … the word” modified “is about to take a rather unfortunate turn.
Let’s remember the Fair Sentencing Act, which significantly reduced the crack cocaine disparity. In particular, the law increased the amount of tears, punished as so-called Tier 1 crimes, from 50 grams and more to 280 grams and more. (This level is defined in sub-paragraph (A) of 21 USC § 841 (b).) The range of Tier 2 offenses has again been changed from 5 to 50 grams to 28 to 280 grams. (This level is defined in sub-paragraph (B) of the Statute.) So one would think that level 3 offenses that were previously between 0 and 5 grams are now between 0 and 28 grams. (Tier 3 is defined in sub-paragraph (C) and is the provision under which Terry was sentenced.) While this appears to be the only reasonable legislative math, Congress has not really changed the text of the Tier 3 provision.
Armed with this congressional oversight, the Attorney General held that the penalties for Tier 3 offenses were not “modified” by the Fair Convictions Act and are therefore not retroactive under the First Step Act. To be clear, this leads to the proposal that Congress provide that those sentenced to long terms for carrying significant amounts of crack be more equitably sentenced, while those sentenced for carrying less When 5 grams was sentenced in prison, a couple is left behind for just under decades. This may seem so counter-intuitive that one might wonder why the federal prosecutor would take such a view, why the government would defend it, and whether a court would find it convincing.
Some courts did. Four federal appeals courts (including the U.S. Circuit 11th Circuit Court of Appeals in Terry’s case) ruled that the First Step Act’s rescheduling provision did not apply to Tier 3 crimes. Two other federal appeals courts disagreed, granted relief to low-ranking offenders and presented a clear division to the Supreme Court.
The circles in which the prosecution’s argument was accepted concluded that Congress did not “modify” these penalties by changing the language for Tier 3 offenses in 21 USC § 841 (b) (1) (C. ) did not explicitly change. Tier 3 offenders, these courts held, could therefore not be convicted again, even though offenders carrying 10, 20 or 56 times more crack were expressly permitted. So strange is this reading that the four bipartisan senators largely responsible for drafting the bill filed an amicus letter stating that Congress intended to extend the relief to low-ranking offenders.
Such intent, they argue, is taken into account by the language that retroactively applies to any “modified” crime – a broader term than any language that Congress may have “changed”. The change in levels 1 and 2, so the argument goes, necessarily modified tier 3, even if this language was not expressly changed. Terry’s freedom, for example, depends in part on the distinction between “changing” or “changing” the language.
At least it seems so. When the opening act of this drama is permeated with the persistent racism of our punitive practices and the casual sympathies of a well-connected celebrity, the closing act borders on scratching our heads. After Terry lost in the 11th Circle – and shortly before the Supreme Court agreed to review his case – the 2020 presidential election ushered in a new Democratic government, which was made available to the White House, not least because of the strength of the minority voters. The politically savvy would also note that the new president himself had come under fire as a candidate for his earlier support for the same criminal measures that the Fair Sentencing Act sought to reverse. Many wondered how a new Justice Department would handle a case seen as a step towards racial justice in criminal law.
On March 15, just moments (at least with respect to the Supreme Court) before the April 20 argument was originally scheduled, Acting Attorney General Elizabeth Prelogar informed the court that the Biden government had approved the 11th Circle decision that the First Step Act, no longer support could not cover subordinate offenders.
This forced the court to postpone the argument and appoint an outside attorney – Adam Mortara, a former Justice Clerk Clarence Thomas – to act as the amicus in the case for upholding the verdict below. Terry’s attorney will, of course, be in favor of a reversal – as will a attorney general who filed a pleading in support of Terry and given time to argue to express the federal government’s views. Additionally, Terry’s position is backed by a diverse coalition, from the American Civil Liberties Union to the Koch-backed Americans for Prosperity Foundation, which is a growing left-right agreement on reducing mass imprisonment.
And what about Terry’s fate? That is also unclear. As stated in Prelogar’s letter to the court, Terry is due to complete the remainder of his term, which will be spent almost entirely in custody, on September 22 of this year. (After that, he’ll begin a six-year term under supervision.) Even moving at a remarkable rate, the dish is able to add just a summer barbecue or two.
The peculiar interpretation that has brought us here, and the strange machinations of the current argument, make it tempting to view all of this as an absurd exercise in high-level lawyers who carefully weigh “change” against “change”. But for Terry, reforming his sentence (and possibly shortening his supervised release) is certainly important. Not to mention all of the other low-ranking offenders who remain in jail and would be eligible for re-conviction if Terry prevailed. As the ACLU pointed out in their Amicus letter, there are many people like Trentavius Arline who pleaded guilty to selling 500 milligrams of crack less than the weight of a $ 40 paper clip. Arline was sentenced to 16 years in prison and remains there 11 years later.
Finally, the case raises questions about the methods Congress must use to reform penalties retrospectively. With a history of racially unequal punishment lurking, how dedicated the machinery of government must be to undo the damage of the past, just beneath the surface of this tiny little case and the few months in prison that are at stake for Tarahrick Terry.