Supreme Court Weighs Crack Cocaine Sentencing Disparity

May 4, 2021
Originally published on May 5, 2021 12:52 am

The U.S. Supreme Court heard arguments Tuesday in a case involving sentencing disparities between people found guilty of possessing crack cocaine and those possessing powdered forms, and whether recent changes in federal law should apply retroactively to those given long prison terms for small amounts of crack.

The case stems from changes to the 1986 Anti-Drug Abuse Act, which put in place sentences for crack cocaine possession that were 100 times more severe than those for the powered form of the drug. The disparity was seen by many as racially motivated, as those sentenced for crack possession were proportionally more likely to be Black.

In 2010, Congress and the Obama administration amended the law to reduce the sentencing disparities between the two forms of cocaine to 18-to-1, and in 2018, lawmakers and the Trump administration made the change retroactive, affecting those still serving time under the original statute.

But Congress left out sentences for low levels of crack from the retroactive provision, and justices across the ideological spectrum indicated Tuesday they were skeptical that the court could change that.

"I think they were much too high," said Justice Stephen Breyer, one of the court's more liberal members, of the tough sentences for crack cocaine possession. "I understand that, but I can't get away from this statute."

Justice Brett Kavanaugh wondered: "Why didn't Congress just say everyone who's been sentenced for crack offenses ... is eligible for resentencing, something simple like that?"

The plaintiff in the case, Tarahrick Terry, a Black man from Florida, was sentenced in 2008 to 15 1/2 years in prison for possession of less than 4 grams of crack, about $50 worth, his attorney estimated. His sentence is scheduled to end in September.

Deputy Solicitor General Eric Feigin told the court that only 100 to 200 people convicted of crack cocaine possession would be affected by what the court decides.

Feigin was arguing against the statute, a reversal from the Trump administration's position that the sentencing quirk should be upheld.

The court appointed Adam Mortara, a former law clerk to Justice Clarence Thomas, to argue to uphold the law. Asked by Breyer why the government has switched its position, Mortara said: "Your honor, I am here to explain many things. The behavior of the United States government in this case is not one of them."

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