Later this morning, the Supreme Court will hold the last hearing on its January calendar, a case that brings up the long-standing question of racial bias in prison sentences for cocaine crimes.  It examines how federal judges may use their power to lower long prison terms in those cases.

The Court broadcast of the “live” audio (no video) of hearings will be available at Quick Links on the Supreme Court’s homepage – supremecourt.gov – and at c-span.org/supremecourt and C-Span Now App.

The case: Concepcion v. United States. The hearing, scheduled for one hour, will begin at about 11:30.  It will start as soon as the Court finishes the first hearing of the day (a case about campaign finance that was discussed in this space yesterday).

Background:  For more than three decades, criminal justice reformers and prisoners’ rights activists have been working to change the way judges decide on prison terms for people convicted of crimes involving drugs derived from coca leaves – cocaine.

In the 1980s, an anxious nation was in the midst of an intense “war on drugs.”  In May 1987, President Ronald Reagan (borrowing a phrase first uttered by First Lady Nancy Reagan to a group of school children) issued an order to proclaim a “Just Say No to Drugs Week.”  The President called it a “battle cry.”

In that sentiment, Congress had already become involved.  Its part in waging the “battle” was to pass the Anti-Drug Abuse Act of 1986, with a specific target: cocaine, crack cocaine in particular.

Then, as now, cocaine comes in two forms for users.  There is a powder form, which when mixed with baking soda in boiling water becomes a paste that, after drying and hardening, becomes the “crack” or “rock” form that can be broken into small pieces and smoked.  In powder form, cocaine can be “snorted” through nostrils but also, mixed with water, injected.

A “rock” of crack is cheaper than a similar amount in powder form.  Crack is the variety sold most often on the street.  While the physical and behavioral effects of the two forms are quite similar, a faster “high” can be obtained by smoking crack.

Congress appeared in 1986 to accept a common belief that a crack “epidemic” had broken out across America, and that the drug in that form was more potent and led to more violence as street gangs vied for sales “territory.”

The history of what Congress did that year came up just last year in a sharp disagreement between members of the Supreme Court in dealing with a recent crack cocaine conviction.  Justice Clarence Thomas, writing the Court’s lead opinion in Terry v. U.S., recounted that history in a way more favorable to Congress’s intentions.

That prompted a complaint by Justice Sonia Sotomayor that Thomas had misstated that history.  She quoted from a critic of that legislative record, who had written that “the careful deliberative promises of Congress were set aside…as part of a rush to pass dramatic drug legislation before the midterm elections” that year.

The 1986 Act for the first time set mandatory minimum prison sentences for those convicted of trafficking in cocaine, but with a stark difference in severity: 100 times more severe for crack crimes than powder.  Congress appeared to have chosen the 100-to-1 ratio simply because it was the highest suggested.

Under that ratio, it would take evidence of dealing only 50 grams of crack to lead to a minimum ten-year sentence, compared to 5,000 grams for powder.  A minimum five-year sentence would result from dealing only 5 grams of crack, compared to 500 grams of powder.

That was for dealers.  Two years later, in 1988, the Act was amended to provide a mandatory five-year minimum merely for possessing 5 grams of crack.  It was the only federal drug crime for which a first-offense possession required a prison term.

Although not enacted with the specific purpose of discriminating against racial minorities, in actual operation it has drawn criticism for years that it was having a decided racial impact among blacks.  Crack prosecutions in those communities far exceeded those for whites using the powder form.

The lead federal agency that sets policy on criminal sentences, the U.S. Sentencing Commission,  reported to Congress in 1995 that the penalties for crack were having “a disproportionate effect” on blacks because of the frequency of convictions of them as low-level dealers of crack.  It urged Congress, unsuccessfully at that time and in repeated suggestions in following years, to reduce the broad sentencing disparity.

While the Commission could not change the minimums set by Congress, it did issue guidelines to federal judges that allowed them some discretion about how high above the minimums they could go, and do so to alleviate the harshness of long “crack” sentences.  The Supreme Court in 2007 upheld the Commission’s power to add that flexibility, even though the minimums stayed in place.  Only Congress could change those.

Congress finally responded in 2010, but only partially, when it passed the Fair Sentencing Act.  That law increased from 5 to 28 grams of crack the amount leading to the five-year mandatory minimum sentence, and from to 50 to 280 grams of crack for the ten-year mandatory minimum term.  The result was an 18-to-1 disparity in place of 100-to-1.  The law also eliminated the required minimum five-year sentence for mere possession of crack.

Those changes, however, were ordered only for future convictions, so individuals in prison and still serving the longer sentences imposed under the 1986 Act were not eligible to ask the courts to reduce their time behind bars.

Eight years later, Congress moved to extend the promise of the Fair Sentencing Act to individuals convicted and sentenced before that law was passed.  The 2018 law goes by the short name the FIRST STEP ACT.

Intended to signify a first step toward rectifying the wrong of extra-long mandatory minimum sentences and giving those prisoners some chance of returning to normal life, the law’s formal title states those goals but does so in a quite clumsy way: “Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person.” (Congress sometimes is clever in crafting bill titles as acronyms; this one stands out as a definite exception.)

It kept the 18-to-1 crack-to-cocaine disparity, but made the changes made by the 2010 law in the minimums for crack trafficking retroactive, opening the way to challenge sentences imposed before 2010.  It did not required reductions, but gave courts discretion to lower those sentences, to make them fairer.

But what would judges consider in deciding a prisoner’s plea for a reduction?  That is the issue the Court will consider on Wednesday in a case involving a New Bedford, Mass., dealer, Carlos Concepcion, who was given a 19-year prison sentence after being convicted of one count of dealing 27.5 grams of crack cocaine.

A part of his lengthy sentence also was due to the fact that he was treated as a “career offender,” since he had prior convictions under state law in Massachusetts for dealing in cocaine, armed carjacking, armed robbery, and assault with a dangerous weapon.

He had been sentenced in May 2009, about a year before the Fair Sentencing Act was passed, so he was not eligible to seek a reduction for the “crack” conviction.  The enactment in 2018 of the FIRST STEP ACT, with its retroactivity clause, gave him a chance to try again.

His lawyers calculated all of the factors surrounding his case, including his conduct behind bars and the nullification of some of his state convictions, and used all of that information in asking a judge to substantially reduce his 19-year term.  They contended that the sentence should have been shortened by about six years but perhaps should be pared down to the years he had already served, so he could be released right away.

That effort failed in the lower courts, so he appealed to the Supreme Court.  The Justice Department argued that he was not entitled to any reduction and suggested that the Court simply deny review.  The Justices, apparently seeing some differences in the way lower courts have handled the issue, granted review anyway.

The questions before the Court:  Under federal laws now in effect on sentencing for crimes involving crack cocaine, what factors are courts to take into account when an inmate seeks a reduction of a sentence imposed before 2010?  Should the judge’s inquiry be wide-ranging, taking into account all legal and factual changes since the original sentence was imposed, or must it be narrowly focused, considering only what the sentence should have been if the 2010 law had been in effect at the time sentencing had occurred?

Significance:  It does not appear that Congress is inclined to go much further than it did in 2010 and 2018 in reducing some of the wide disparity in sentences for crack cocaine crimes, so – to the degree the racial inequality for “crack” sentences remains – that is not likely to change.

The courts themselves would not impose specific new limits on such sentences, because that is a task left to Congress.  The only way that a given minimum sentence could be struck down as unconstitutionally biased, based on race, would be either to show that Congress intentionally sought to punish minorities more heavily, or that the data showed unmistakable bias in a  recurring, predictable pattern.

That would be difficult because, on the first, Congress has never set out on purpose to achieve a biased result in crack cocaine cases, and, on the second, actual impact of the crack-versus-powder disparity has always been the subject of some debate.   (The Court is generally not comfortable making legal judgments based upon statistics, considering that to be a policy question for legislatures.  For example, it has been asked, with some frequency over the years, to strike down the death penalty based upon statistical disparities based upon race, but it has refused to do so even though that data is quite compelling.)

If the Court were now to take a limited view of what Congress did in 2010 and 2018, refusing to allow judges to consider in these sentence-reduction cases how inmates had changed their behavior while in prison or learned a job or a trade that could ease their way into society, or could benefit from intervening legal changes (such as downward revisions in federal sentencing guidelines set by the Sentencing Commission), the long effort by reformers would have fallen short — again.

If, however, the Court were to conclude that Congress had meant for these inmates to have a genuine fresh start, so new sentencing reviews should be truly wide-ranging, that would be a historic development.

This case is another instance of how Congress, desiring to bring about change, passes new legal measures but does not go far enough to spell out how change is to be implemented.  That requires courts to fill the gaps by interpretation, looking for signs of what Congress had intended.  That is not an exact science, although it is more than mere guesswork.

After today’s hearings, the Court has none scheduled until February 22.  The break is its customary mid-term recess.