Story at a glance

  • The Supreme Court has agreed to review the case of "Terry v. United States" on whether crack offenders are covered under the First Step Act.
  • The attorneys general of D.C. and 18 other states, four U.S. Senators and several interest groups have filed briefs in support of the petition.
  • The First Step Act retroactively applies sentencing reforms to offenders who may have been victim to racist sentencing policies.

The Supreme Court has agreed to review a case that would retroactively apply sentencing reforms not only to high-level drug offenders but also to those convicted of low-level crack cocaine offenses. 

“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 D.C. Attorney General Karl A. Racine, who filed a brief in support of the petition along with the attorneys general of 18 states, in a statement

United States Senators Richard Durbin, Charles Grassley, Cory Booker and Mike Lee also filed a joint brief, as have several major think tanks and advocacy organizations, including the American Civil Liberties Union, the American Conservative Union, and a group of retired federal judges, former federal prosecutors and defense lawyers. 


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In fact, history has shown that racism played a part in the war on drugs and resulted in disproportionately high incarceration rates among Black Americans. So after the U.S. Court of Appeals for the Eleventh Circuit ruled against Tarahrick Terry, the Supreme Court granted his petition for a writ of certiorari, a formal request for judicial review. 

In 2008, Terry pleaded guilty to one count of possession with intent to distribute a controlled substance — in his case, 3.9 grams of crack cocaine. He had two prior drug convictions when he was a minor, one at 16 and one at 17, that helped boost his sentence to 188 months (more than 15 years). 

Two years later, Congress passed the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act (First Step Act), which, among other things, applied the Fair Sentencing Act of 2010, which, among other things, reduced the disparity between the amount of crack cocaine and powder cocaine needed to trigger certain federal criminal penalties, retroactively. 


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“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,” said Racine in the statement. 

The 11th Circuit, however, agreed with the district court’s ruling that Terry’s offense wasn't covered under the Fair Sentencing Act, because the quantity of crack was less than 5 grams. This amount, the court argued, is covered under another section of the law — one that wasn’t explicitly changed by the reforms — that allows for a 30-year maximum sentence in cases of prior convictions. 

"The district court should consider only whether the quantity of crack cocaine satisfied the specific drug quantity elements in § 841 --  in other words, whether his offense involved 50 grams or more of crack cocaine," ruled judges Charles Wilson, Robin Rosenbaum and Stanley Marcus. 


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Published on Feb 23, 2021