WASHINGTON, D.C. – Attorney General Karl A. Racine led a coalition of 19 attorneys general urging the Supreme Court to affirm that people serving harsh sentences for low-level crack cocaine offenses can seek resentencing under the First Step Act, landmark criminal justice reform legislation that Congress passed in 2018. The coalition filed the amicus brief in Terry v. United States, a case concerning whether the resentencing reforms of the First Step Act extend to people convicted of the lowest-level crack cocaine offenses as it does to those convicted of higher-level offenses. The coalition points to a universal consensus that the former federal sentencing regime, which disproportionately punished users and dealers of crack cocaine over users and dealers of powder cocaine, was unjust and had a disproportionate impact on communities of color. The attorneys general assert that Congress passed the First Step Act to right historic wrongs and intended that the law applies to all individuals—including the lowest-level offenders—who were sentenced extremely harshly under the previous federal guidelines. 

"There is no dispute that Black, Brown, and less well-off persons who were convicted of offenses involving crack cocaine received disproportionate and severe sentences as compared to violators convicted of powder cocaine offenses," said AG Racine. "The First Step Act was intended to provide relief to people serving harsh prison sentences because of unfair and racially discriminatory federal sentencing rules. In this brief, our coalition of attorneys general urges the Supreme Court to affirm that the relief offered by this landmark legislation applies to the lowest-level crack cocaine offenders, as well as to those who were convicted of more serious crimes. Not doing so would perpetuate the wrongs that the law sought to cure." 

In the 1980s, the states and the federal government responded to the prevalence of crack cocaine and public panic about its supposedly unique dangers with aggressive penalties and targeted criminalization. Federal sentencing laws treated crack cocaine much more harshly than powder cocaine, with 100 times as much powder cocaine as crack cocaine needed to trigger the same penalties (this is known as the 100:1 ratio). Crack cocaine was also the only drug that carried a mandatory prison term for the first offense of simple possession.    

Harsh penalties for crack cocaine exacerbated racial inequality in the justice system. Rates of drug use are statistically very similar across racial and ethnic lines, and roughly 80% of crack cocaine users in the United States are white or Hispanic, but most people historically sentenced for crack cocaine offenses are Black. For example, in 2006, around 80% of those convicted of crack offenses were Black. In part because of dramatically harsher treatment of crack cocaine offenses, the average prison time for Black people convicted of drug offenses increased by more than 77% from 1994 to 2003, compared to an increase of less than 33% for white people convicted of drug offenses.     

In 2010, Congress had passed the Fair Sentencing Act to reduce the disparity between sentences for crack cocaine and powder cocaine. However, the law did not help the many people sentenced for crack cocaine offenses before 2010 who remained in prison. The First Step Act, a bipartisan criminal justice reform bill passed in 2018, included a provision that made previous drug sentencing reforms retroactive, allowing those serving harsh sentences imposed under the former federal law to seek relief.  

In a brief filed in Terry v. United States, the attorneys general urge the Supreme Court to reverse a lower court’s decision that individuals serving sentences for the lowest-level crack cocaine offenses are not eligible for resentencing under the First Step Act, unlike those sentenced at higher levels. Relying on their historical experience addressing the crack cocaine crisis and their unique authority as the primary enforcers of criminal law, the states argue that Congress clearly intended for the First Step Act’s reforms to include all crack cocaine offenders, because: 

• There is consensus that treating crack cocaine and powder cocaine radically differently was unnecessary and unjust: When Congress was drafting the First Step Act, states had uniformly concluded that the extreme differential between sentences for crack cocaine and powder cocaine was both unwarranted and unwise. Assumptions about crack cocaine’s unique danger and addictiveness—which informed the original decisions to impose harsher sentences—have been found to be false, and there is now a consensus that crack cocaine and powder cocaine have virtually the same effects. Even though many states initially mirrored the federal government’s harsh approach to crack cocaine, today most states treat crack cocaine and powder cocaine identically in their criminal codes.

• The First Step Act was intended to right historic wrongs: Congress passed this part of the First Step Act to correct fundamental injustices in federal cocaine sentencing. As the U.S. Sentencing Commission documented, the prior federal sentencing regime undermined faith in the entire criminal justice system because it imposed disproportionate and racially discriminatory punishments on individuals with little regard for their relative culpability. The unjust treatment of the lowest-level crack cocaine offenders in particular was a core defect of the prior regime. It would be nonsensical for Congress to have excluded the least-culpable offenders from the relief granted by the First Step Act, especially when there is agreement that the legislation made more serious crack cocaine offenders eligible for resentencing.  

A copy of the amicus brief is available at: https://oag.dc.gov/sites/default/files/2021-02/Amicus-Brief-for-Step-Act.pdf

AG Racine led the amicus brief and was joined by Attorneys General from Colorado, Delaware, Illinois, Iowa, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington. 

Leadership on Criminal Justice Reform
AG Racine is a leader in advocating for criminal justice reform, and especially for ending mass incarceration and revisiting unnecessarily harsh sentences, both locally and federally. In 2018, he led a broad, bipartisan coalition of 38 attorneys general in calling on House leadership to enact the First Step Act. AG Racine also strongly supported local legislation that allows judicial review of long sentences for individuals who committed crimes when they were younger than 25 and who already have served at least 15 years of their sentence. In 2020, he filed an amicus brief opposing the United States Attorney’s Office for the District of Columbia policy of prosecuting felon-in-possession gun cases in federal court rather than local court, arguing that this would lead to overincarceration and disproportionately harms Black residents in the District.