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SCOTUS Unanimously Rules Against Crack Cocaine Defendant, But Justices Thomas and Sotomayor Still Found a Way to Disagree


The Supreme Court of the United States issued a unanimous ruling Monday in Terry v. United States. Though the Court was united in its judgment that Tarahrick Terry was not entitled to re-sentencing, two of the justices had some different thoughts about racial disparities in crack cocaine crimes as a general matter.

Justice Clarence Thomas wrote the Court’s majority opinion, which was joined in full by all justices except Sonia Sotomayor. Justice Sotomayor penned her own concurrence, agreeing with the Court’s ruling, but taking issue with some of Thomas’ reasoning.

SCOTUS ruled against Terry in the case, holding that Terry was not entitled to a lesser sentence under newly-reformed drug sentencing statutes. Terry pleaded guilty to crack cocaine crimes in 2008 and was sentenced to more than 15 years in prison. Under current laws, his sentence would have been far lower.

Thomas provided some historical context for the drug statute under which Terry was convicted and sentenced:

In the mid-1980s, the United States witnessed a steep surge in the use of crack cocaine, and news of high-profile, cocaine-related deaths permeated the media. Witnesses before Congress, and Members of Congress themselves, believed that a “crack epidemic” was also fueling a crime wave. Crack, they said, was far more addictive and dangerous than powder cocaine; it was cheaper and thus easier to obtain; and these and other factors spurred violent crime.

Congress responded by passing strict drug laws “with near unanimity,” explained Thomas. The statute responded to the “crack epidemic” by creating mandatory minimum penalties, and by setting far lower trigger thresholds for crimes involving crack cocaine.

Thomas continued, laying out the mandates created by the drug statute under which Terry was sentenced:

The Act included two base penalties that depended on drug quantity: a 5-year mandatory minimum (triggered by 5 grams of crack or 500 grams of powder) and a 10-year mandatory minimum (triggered by 50 grams of crack or 5 kilograms of powder).

The law also included a third category: possession with intent to distribute an unspecified amount of a schedule I or II drug. Thomas noted that this category “did not treat crack and powder offenses differently, did not depend on drug quantity, and did not include a mandatory minimum.”

Two years after Terry’s sentencing, Congress passed the Fair Sentencing Act of 2010 (FSA), which aimed to mitigate extreme disparity in sentences for crack crimes as compared with those involving powder cocaine (reducing a 100-to-1 ratio to about 18-to-1). The 2018 First Step Act made FSA’s sentencing reforms retroactive, and made some offenders to eligible for re-sentencing.

Terry argued that his case should fall within the categories eligible for re-sentencing, but the Court disagreed. Justice Thomas made the case for a simple and straightforward ruling against Terry. Calling Terry’s offense “starkly different from the offenses that triggered mandatory minimums,” Thomas explained that Terry’s offense simply did not fit within the First Step Act’s sentencing reforms, which had been aimed at reducing sentences handed down as a result of mandatory minimums.

Thomas explained that “no statutory penalty changed for [Terry’s category of] offenders.” That Terry’s group was left out of sentencing reforms, was “hardly surprising” wrote Thomas, given that “the Fair Sentencing Act addressed ‘cocaine sentencing disparity,’” and that there had been no such disparity involved in the statute underlying Terry’s crime.

Concluding his eight-page opinion, Thomas reasoned that, “in light of the clear text of the Fair Sentencing Act,” Terry was simply not included in the group entitled to re-sentencing.

Justice Sotomayor agreed with the majority’s ruling, but penned an eight-page concurrence of her own to underscore the injustice resulting from Congress’ failure to include all appropriate categories in sentencing reform. She began with a statement saying that “While the Fair Sentencing Act of 2010 and First Step Act of 2018 brought us a long way toward eradicating the vestiges of the 100-to-1 crack-to-powder disparity, some people have been left behind.”

The justice put Terry’s crime into a relatable context. Terry had been convicted of possession of 3.9 grams of crack cocaine, which is “less than the weight of four paperclips.” After the law’s amendment, that amount was “nowhere near the 28 grams that now trigger the mandatory minimum.” Despite the fact that “the law now treats Terry’s offense as a far less serious crime,” he is ineligible for re-sentencing.

Although Justice Sotomayor reached the same conclusion as the majority, something of a battle in perspective was waged via footnote.

Justice Thomas was quick to point out the legislative history of the harsh drug law that prescribed Terry’s sentence. “The Act passed the Democratic-controlled House,” “then passed the Republican-controlled Senate 97 to 2,” recounted Thomas. He continued, explaining that harsh sentences for crack offenses may have been intended to support racial equality under the law:

A majority of the Congressional Black Caucus cosponsored and voted for the bill. Many black leaders in that era professed two concerns. First, crack was fueling crime against residents in inner cities, who were predominantly black. For example, the president of an NAACP chapter in the D. C. region called crack “‘the worst thing to hit us since slavery,’” a sentiment echoed by the leading black newspaper in Los Angeles. J. Forman, Jr., Locking Up Our Own 158 (2017). Second, there were concerns that prosecutors were not taking these kinds of crimes seriously enough because the victims were disproportionately black.

In the words of John Ray, a D. C. councilmember who spearheaded a successful effort to create mandatory minimum penalties: “‘Black crimes against blacks get very low sentences,’” unlike crimes against whites.

Justice Sotomayor, however, specifically opted out of Thomas’ version of events. She began a harsh footnote as follows:

I do not join Part I of the Court’s opinion because it includes an unnecessary, incomplete, and sanitized history of the 100-to-1 ratio. The full history is far less benign. The Court emphasizes Black leaders’ support for “tough-on-crime” policies, but ignores that these leaders “also called for federal investment in longer-term, root cause solutions such as welfare, education, and job training programs.”

She continued, addressing Thomas’ reference to the Congressional Black Caucus:

There is, by contrast, an extensive record of race-based myths about crack cocaine that the media “branded onto the public mind and the minds of legislators,” and that appear in the Congressional Record. Most egregiously, the Court barely references the ratio’s real-world impact, and disregards the fact that, “as the racial effects of mandatory minimums and the crack/cocaine disparity became apparent, the [Congressional Black Caucus] came together in unanimous and increasingly vocal opposition to the law. Bills to mitigate the disparity were introduced almost every year from 1993 to 2009. Yet Congress did nothing until 2010.”

Laying any blame for the case’s outcome squarely at the feet of Congress, Sotomayor reminded:

Indeed, the bipartisan lead sponsors of the First Step Act have urged this Court to hold that the Act “makes retroactive relief broadly available to all individuals sentenced for crack-cocaine offenses before the Fair Sentencing Act.” Unfortunately, the text will not bear that reading.

And finally, the justice challenged the legislative branch to correct its wrongs:

Fortunately, Congress has numerous tools to right this injustice.

[Photo by John Moore/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos