By Stet Taylor
COMMENTARY
The United Supreme Court unanimously settled all disputes within district and appellate courts in the decision “Tarahrick v. United States (20-5904), over former President Donald Trump’s First Step Act that gave retroactive effect to former President Barack Obama’s August 3, 2010 Fair Sentencing Act, that reduced the crack cocaine disparity from 100-to-1 to 18-to-1.
Writing the opinion for the Supreme Court June 14 decision was Justice Clarence Thomas. The high court noted: “A crack offender is eligible for a sentence reduction under the First Step Act only if convicted of a crack offense that triggered a mandatory minimum sentence. The First Step Act makes an offender eligible for a sentence reduction only if the offender previously received a sentence for a ‘Covered Offense.’”
›In 1986, Congress established mandatory minimum penalties for certain drug offenses. That legislation defined three relevant penalties for possession with intent to distribute cocaine. Title 21 U.S.C. Section 841(b)(1)(B), has a penalty phase of 5- 40-years; Title 21 U.S.C. 841(b)(1)(A), has a penalty phase of 10 years to life and Title 21 U.S.C. 841(b) (1)(C), has a penalty phase of 0 months to 20 years.
The first two carried mandatory minimum sentences based on drug quantity; a 5 year mandatory minimum (triggered by either 5 grams of crack cocaine or 500 grams of powder cocaine) and a 10 year mandatory minimum (triggered by either 50 grams of crack or 5 kilograms of powder). The third penalty differed from the first two. It did not carry a mandatory minimum sentence; did not treat crack and powder cocaine offenses differently and did not depend on whether drug quantity was mentioned in the charged instrument (indictment).
The Supreme Court ruling could appear somewhat confusing because the court affirmed the 11th Circuit Court of Appeals, which upheld the District Court order in not reducing the sentence of Tarahrick Terry, a federal defendant whose 2008 crack cocaine conviction was based upon 3.9 grams of crack cocaine; being in violation of 841(b)(1)(C); the third referenced penalty phase that did not carry a mandatory minimum sentence.
News headlines reported that the Supreme Court won’t extend reduced charges to low-level crack cocaine offenders. One must first understand what The Fair Sentencing Act signed into law by former President Barack Obama entailed with modification of the drug statute.
The Fair Sentencing Act increased the crack quantity threshold for subparagraph (b)(1)(A) from 50 grams or more of crack cocaine to 280 grams, which would trigger a mandatory minimum sentence of 10 years; and subparagraph (b)(1)(B) from 5 grams of crack to 28 grams, which would trigger a mandatory minimum sentence of 5 years. This new change in law did not include any crack cocaine offenders whose sentence was final, or already in federal prison; until former President Trump’s 2018 First Step Act became law
Tarahrick Terry who was sentenced under the harsh 100-to-1 crack cocaine disparity (also as a career offender) was denied from receiving a reduced sentence by the District Court, Appellate Court, and Supreme Court. Why?
The Fair Sentencing Act did not modify Subparagraph (b)(1)(C), which was the statute Terry was charged under, because
• the penalty phase did not carry a mandatory minimum sentence;
• nor did it treat crack and powder cocaine offenses differently:
• it did not depend on drug quantity being charged in the indictment; meaning Terry was not charged with a “covered offense,” Section 404(b).
A covered offense is a violation of a federal criminal statute, the statutory penalties for which were modified by certain provisions in the Fair Sentencing Act. To “modify” means to change moderately.
The Supreme Court ruling was not in favor of federal defendant Terry. However, everyone in federal prison prior to August 3, 2010, charged under Subparagraph (b)(1)(B), serving a mandatory minimum sentence of 5 years to 40 years; or Subparagraph (b)(1)(A), serving a mandatory minimum sentence of 10 years to life was now entitled for resentencing after decades of sitting in federal prison.
Thousands of Black men and Black women who was sentenced disproportionately under the harsh penalties of the crack cocaine disparity have been released since the passage of the First Step Act. Some federal courts, judges, and prosecutors did not want to disturb the sentence they rendered unto crack cocaine defendants many years ago. That has now changed due to the Supreme Court “Terry” decision.
The bottom line is this: Congress needs to correct their wrong by passing legislation to totally eliminate the crack cocaine disparity. The entire government (Executive, Legislative, Judicial branches) have all acknowledged this targets Black men and women. It has now been 35 years since the passage of the 1986 Anti-Drug Abuse Act. Federal defendants like Tarahrick Terry are left behind due to the fact The Fair Sentencing Act did not modify Subparagraph (b)(1)(C). Only Congress can fix the problem at hand, not federal courts. The time and change is now.
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