Congress must act to correct flaws in the First Step Act

A unanimous Supreme Court last week held that people convicted of certain low-level crack cocaine offenses are not eligible for resentencing under the First Step Act, a sentencing reform bill passed in 2018 with bipartisan support that was meant to provide retroactive relief to those serving sentences for crack-cocaine offenses. According to the court, the result turned on a legislative omission — one that Congress can and must correct immediately in the interest of justice.

Tarahrick Terry was arrested in 2008 for possession of less than four grams of crack cocaine. He was sentenced pursuant to a federal law written in the 1980s, a period often referred to as the “crack epidemic.” As with many issues involving drugs, sensationalized news coverage fed into racial stereotypes. While the introduction of crack exacerbated preexisting harms of poverty and racism in Black neighborhoods, members of Congress apparently were swept up in the hysteria and relied on the unscientific assumption that crack cocaine was far more dangerous than powder cocaine, even though it is the same drug. They created a sentencing scheme in which someone would have to possess 100 grams of powder cocaine to receive the sentence that someone with one gram of crack cocaine could receive.

The 1980s also were a time of widespread cocaine use among young, white people with money and privilege, as chronicled in books and films such as “Bright Lights, Big City” and “The Wolf of Wall Street.” Yet if and when these cocaine users, and those who sold them drugs, were arrested, they typically faced much lower penalties than Black users and sellers of crack cocaine.

When the racially disparate impacts of the crack-powder sentences became apparent, the Congressional Black Caucus and criminal justice reform advocates began to call for eliminating the disparity. Bills to do so were introduced nearly every year from 1993 to 2009. In 2010, Congress finally addressed the problem — but merely reduced, and did not eliminate, the disparity. That bill, the Fair Sentencing Act, was not retroactive and the First Step Act was meant to make it so. As Sen. Cory Booker (D-N.J.) stated during congressional hearings on the First Step Act, “Under the Anti-Drug Abuse Act of 1986, 21 U.S.C. § 841, thousands of people —‘90 percent [of them] African Americans, 96 percent [of them] Black and Latino’ — received harsh crack-cocaine sentences.”

Tarahrick Terry sought to be resentenced under the First Step Act, but the Supreme Court held that the plain language of the act rendered it inapplicable to his case. Justice Sonia Sotomayor, concurring in the unanimous decision, urged Congress to pass legislation to close the gap in the First Step Act that left Terry ineligible for resentencing. 

As an elected district attorney and as the executive director of the country’s leading drug policy reform organization, we join together to call on Congress to fix the law immediately and provide the means to undo arbitrary, unjust sentences such as the one imposed on Tarahrick Terry.

During his candidacy, President Biden acknowledged many of the drug war’s mistakes that have harmed countless Americans, especially Black, Latinx and Indigenous Americans. He declared that “No one should be in jail for a drug problem” and promised to “end, once and for all, the federal crack and powder cocaine disparity.” Biden should make good on that promise and urge Congress to do the right thing. 

This Congress has a responsibility to correct the mistakes of past Congresses. That there are still people in prison who were sentenced under excessively punitive drug laws is a disgrace. Locking up drug users has never made us safer, and racial disparities in sentencing for drug offenses have helped to erode community trust in our justice system. 

Lawmakers should have made the Fair Sentencing Act retroactive in 2010. Eight years later, in trying to correct that error, they inadvertently left a loophole that continues to deny relief to some people. We urge Congress to pass the EQUAL Act introduced by Booker, to end the disparity. Congress should follow the Supreme Court’s direction without delay — it can and must fix this law.  

Eric Gonzalez is the district attorney of Brooklyn, N.Y. Kassandra Frederique is executive director of the Drug Policy Alliance.