Low-Level Crack Offenders Are Not Covered Under First Step Act, Unanimous Supreme Court Says

By Matthew Vadum
Matthew Vadum
Matthew Vadum
Matthew Vadum is an award-winning investigative journalist and a recognized expert in left-wing activism.
June 14, 2021 Updated: June 14, 2021

Low-level crack cocaine defendants are not included in the Trump-era First Step Act that reduced some prison sentences, the Supreme Court ruled unanimously.

The court’s opinion in Terry v. U.S., court file 20-5904, written by Justice Clarence Thomas, is a defeat for the Biden administration, which had argued that such offenders should be covered under the 2018 statute. Justice Sonia Sotomayor concurred with the result and part of the opinion.

Although then-President Donald Trump signed into law the criminal justice reform measure known as the First Step Act, it was his administration’s view that possession of a small amount of crack cocaine wasn’t covered under the statute.

The Biden administration reversed course and argued that the defendant in the current case, Tarahrick Terry, deserved a reduction in his 15 1/2-year sentence. The Justice Department reinterpreted Section 404 of the First Step Act, concluding that Terry’s conviction was covered under the section, and he “is entitled to request a reduced sentence,” and the appeals court “erred in concluding otherwise,” the department advised the court in March.

In the mid-1980s, the United States experienced a steep surge in the use of crack cocaine, and news of high-profile, cocaine-related deaths permeated the media, Thomas wrote. “Witnesses before Congress, and Members of Congress themselves, believed that a ‘crack epidemic’ was also fueling a crime wave.”

Crack, they said, was much more addictive and dangerous than cocaine in powder form because it was cheaper, and this contributed to an increase in violent crime, the justice wrote. This prompted Congress to pass legislation with near unanimity creating mandatory minimum penalties for various drug offenses, and setting much lower trigger thresholds for crack offenses.

Then-U.S. Sen. Joe Biden, at the time the senior Democrat on the Senate Judiciary Committee, was the party’s top point man in Congress on the Anti-Drug Abuse Act of 1986, which he has acknowledged writing, according to The Washington Post.

His bill punished possession of one gram of crack cocaine the same as 100 grams of powder cocaine. This 100-to-1 ratio was criticized for years as unscientific and racially discriminatory, ensnaring blacks in large numbers as traffickers, even though users at the time were mostly white. The Reagan administration had pressed for a 20-to-1 ratio.

The Fair Sentencing Act of 2010 brought the ratio down to 18-to-1, but only for future cases. The First Step Act, signed in 2018 by Trump, made the change retroactive for some offenders.

But not for Terry, according to the Supreme Court, which disagreed with the Biden administration in its June 14 ruling.

“In 1986, Congress established mandatory-minimum penalties for cocaine offenses,” Thomas wrote for the court.

“If the quantity of cocaine involved in an offense exceeded a minimum threshold, then courts were required to impose a heightened sentence. Congress set the quantity thresholds far lower for crack offenses than for powder offenses. But it has since narrowed the gap by increasing the thresholds for crack offenses more than fivefold. The First Step Act of 2018 … makes those changes retroactive and gives certain crack offenders an opportunity to receive a reduced sentence. The question here is whether crack offenders who did not trigger a mandatory minimum qualify. They do not.”

Thomas explained that the 1986 law included two base penalties that depended on drug quantity: a 5-year mandatory minimum (triggered by 5 grams of crack or 500 grams of powder) and a 10-year mandatory minimum (triggered by 50 grams of crack or 5 kilograms of powder). It also created a third penalty, “possession with intent to distribute an unspecified amount of a schedule I or II drug—that did not treat crack and powder offenses differently, did not depend on drug quantity, and did not include a mandatory minimum.” Terry was made subject to the third penalty.

An offender, Thomas wrote, is eligible for a sentence reduction under the First Step Act only if he previously received a sentence for an offense covered under the Fair Sentencing Act of 2010.

But the offense wasn’t covered under the 2010 statute, Thomas concluded.

Sotomayor wrote in a separate concurring opinion that she agreed with the court’s interpretation of the First Step Act and in the judgment, but disagreed with the court’s “unnecessary, incomplete, and sanitized history of the 100-to-1 ratio.”

“The full history is far less benign,” she wrote. The court noted that black leaders at the time supported tough-on-crime policies, but they also “called for federal investment in longer-term, root-cause solutions such as welfare, education, and job training programs,” she wrote, quoting from “Locking Up Our Own: Crime and Punishment in Black America,” a book by James Forman Jr.

“But ‘the help never arrived,’ leaving black communities with ‘just the tough-on-crime laws’ and little else,” Sotomayor wrote.

Nor does the court mention that no rationale for the 100-to-1 ratio was provided in the legislative history of the 1986 omnibus crime bill that included the ratio, she wrote, suggesting it was rooted in “race-based myths about crack cocaine.”

Matthew Vadum
Matthew Vadum
Matthew Vadum is an award-winning investigative journalist and a recognized expert in left-wing activism.