On Tuesday, the Supreme Court will hold the final hearing of the current term. After that, the next scheduled hearing will be on October 4, on opening day of a new term. The case on Tuesday could fit into the tense debate America is now having with itself over racial inequality in the criminal justice system.
Hearings by the Justices in May are highly unusual, but this case is being rescheduled from an April date and it also has a time-sensitive aspect. The audio portion of the hearing (but not the video) will be broadcast on cspan.org/supreme court
Hearing starts at 10 a.m. tomorrow:
Terry v. United States
Background: As the nation tries anew to reckon with the long history of racial inequality, especially now following George Floyd’s murder on the streets of Minneapolis, no part of the debate is more urgent than the call for reform of criminal justice. The Supreme Court will be drawn into that on Tuesday as it focuses on the stark differences in the way federal law has treated crimes that involve possession of or trafficking in cocaine.
In the prolonged “war on drugs” by the federal government, a controversy slowly built up over this fact: people convicted of crimes with cocaine in “crack” form were punished 100 times more severely than those convicted of trafficking in cocaine in powder form. (Even today, after Congress sought to narrow that difference, “crack” crimes are still punished on an 18-to-1 ratio with those involving the substance in powder form.)
While the sentencing laws have not been expressed in explicit racial terms, “crack” has been the most common form found in lower-income areas, resulting in a disparity for people of color. Crime statistics have long shown that the vast majority of those accused of “crack” offenses were black, while those accused of powder crimes were white or Latino.
One claim often made by critics of this disparity is that “crack,” because it is often mixed with inexpensive materials and sold in smaller quantities, finds more customers among the poor, especially in minority neighborhoods in the cities. A debate continues on whether there is actually a significant difference in price.
Both forms of the drug are highly dangerous, and very addictive within a short time after use. “Crack” is powdered cocaine made into “rock” form. The powder is mixed with water and, usually, baking soda; the mix is boiled to make a solid form. That process makes a crackling sound; thus, the name. Once cooled and broken into pieces, “crack” can be smoked. A full description of the two substances and policy issues surrounding them can be found at the website of a Colorado substance abuse treatment center: https://mountainviewrecoveryco.com/resources/cocaine-vs-crack/
The 100-to-1 ratio was based originally on a belief, in Congress in the 1980s, that “crack” cocaine was much more addictive and dangerous than the powdered variety. Over time, that belief has faded, and the two are now understood to be about equally harmful.
For some years, minority individuals sentenced under this regime repeatedly asked the courts to strike down their sentences, on the theory that it operated as racially discriminatory, in violation of equality principles in the Constitution. That effort repeatedly failed.
The racial disparity developed into such a prominent public policy controversy that the U.S. Sentencing Commission – set up in 1984 with the mission to make sentencing for all federal crimes less arbitrary and more uniform – asked Congress four times to reduce the 100-to-1 ratio.
Congress finally agreed to do so in 2010 in the so-called “Fair Sentencing Act.” It lowered the range of potential prison sentences for “crack” but raised the range for powdered cocaine. In both categories, the range depends upon the amount of the drug involved. As a result, the disparity was significantly narrowed, but to this day it remains at 18-to-1.
Before that law was passed, there were three ranges of potential prison sentences for “crack crimes: first, those convicted of having at least 50 grams could get a sentence of ten years to life; second, those having at least five grams could get a sentence of five to 40 years, and, third, for a “crack” crime involving an unspecified amount but considered to be a lesser offense, and one that did not fit into one of those first two categories, the potential sentence was zero to 20 years.
The 2010 law raised the amount that could get ten years to life from 50 to 280 grams and the amount that could get five to 40 years to 28 grams. It did not alter the third, lowest category for the zero-to-20 range.
Another part of the law that was not changed in 2010 provided for an enhanced sentence in “crack” cases if the convicted individual also had a prior drug crime conviction. That range was and is a sentence up to 30 years.
Where the law did make changes, they were applied only to individuals convicted after that law went into effect – that is, after August 3, 2010.
In 2018, Congress returned to the disparity issue, passing the so-called “First Step Act.” It made the changes written into the 2010 law retroactive to those who had been convicted before August 3, 2010. Lowering existing sentences for those in that category was not made mandatory; judges were given discretion to do so.
Although that option was discretionary, it has made a significant difference – especially for black men. In the first year under the 2018 law’s operation, nearly 2,400 individuals have had their sentences reduced. The average sentence dropped by 71 months – one month short of six years. More than 90 percent of those individuals were black men, and more than half of them had originally been given enhanced sentences because they had prior drug convictions.
That brings this narrative to the case the Supreme Court will hear Tuesday morning – the case of Tarahrick Terry of Miami, Fla. It began, as so many criminal cases do, with police pulling him over in February 2008 for a minor traffic offense – driving with an expired, temporary license plate. After his arrest, he was found to have 3.9 grams of “crack” in a pants pocket.
Ultimately, he pleaded guilty to possessing that substance. Because he had a prior Florida conviction for a drug crime, his potential sentencing range under Sentencing Commission guidelines was 188 to 235 months in prison. The judge imposed a sentence of 188 months, followed by six years of supervision after he got out of prison. That is 15 years and eight months of prison time.
He did not appeal his sentence at that time. However, he has since gone to court twice, unsuccessfully seeking a lowered sentence. He did so most recently, after the First Step Act was passed. His plea failed again. The lower courts ruled that he was not eligible for a reduction, because he had been sentenced under a provision that was not modified in either the 2010 or 2018 changes for “crack” crimes.
He took the issue on to the Supreme Court, arguing that he was a low-level drug offender and was being denied his freedom even though those convicted of more serious “crack” crimes were getting out of prison under the 2018 law. He also contended that the federal appeals courts are split on how to apply the 2018 law in cases like his.
During the final days of the Trump Administration, it urged the Justices not to hear the case, saying that the split in the lower courts was not a deep one and, in any event, the ruling against Terry was correct.
However, the Supreme Court agreed to review his appeal, to sort out the lower courts’ conflict. It scheduled a hearing for April. At that point, the new Biden Administration changed the government’s position. It told the Court that, after studying the issue, it decided that Terry had the better argument, that his case was covered by the First Step Act and thus he was entitled to have a judge consider his plea for a lower sentence.
It urged the Court to act quickly, since Terry is now due to be released in September, and his case would become moot (that is, lose its legal significance) if not decided before then, to settle his fate. The Court re-set the argument for May, and named a private attorney to stand in for the federal government in defense of the lower court’s ruling against Terry.
Significance: The racial disparity in “crack” sentencing has lingered, in varying degrees, for more than three decades, and Congress’s two attempts to ease that gap have left the lower courts in disagreement about what to do about thousands of cases of convicted individuals who might be eligible for lower sentences.
The exact number in this category is not known at this point. But, merely by agreeing to step in to settle the legal dispute, the Supreme Court had made it a significant sentencing matter. It will not be a particularly easy case to resolve: both sides rely on specific language in the laws at issue in order to make plausible arguments that they should win.
There is, of course, an underlying dispute on how far Congress had intended to go – both in 2010 and 2018 – to erasing or at least easing the racial impact of cocaine prosecutions. While the Justices will not focus on their own individual views on what is the fair outcome, they will make an effort to determine what Congress thought would be fair.