Amicus Curiae Brief — Tarahrick Terry, Petitioner v. United States

No. 20-5904

In the Supreme Court of the

United States

————

TARAHRICK TERRY,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

————

On a Writ of Certiorari to the United States Court of

Appeals for the Eleventh Circuit

————

BRIEF OF THE DISTRICT OF COLUMBIA

AND THE STATES OF COLORADO,

DELAWARE, ILLINOIS, IOWA, MARYLAND,

MASSACHUSETTS, MICHIGAN, MINNESOTA,

NEVADA, NEW JERSEY, NEW YORK,

NORTH CAROLINA, OREGON,

PENNSYLVANIA, RHODE ISLAND, VERMONT,

VIRGINIA, AND WASHINGTON AS

AMICI CURIAE IN SUPPORT OF PETITIONER

————

KARL A. RACINE

Attorney General

for the District of Columbia

LOREN L. ALIKHAN

Solicitor General

Counsel of Record

CAROLINE S. VAN ZILE

Principal Deputy Solicitor General

ASHWIN P. PHATAK

Deputy Solicitor General

HARRISON M. STARK

Assistant Attorney General

OFFICE OF THE ATTORNEY GENERAL

400 6th Street, NW, Suite 8100

Washington, D.C. 20001

(202) 727-6287

loren.alikhan@dc.gov

i

QUESTION PRESENTED

Whether pre-August 3, 2010 crack cocaine offenders

sentenced under 21 U.S.C. § 841(b)(1)(C) have a

“covered offense” under Section 404 of the First Step

Act.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......................................... i

TABLE OF CONTENTS ............................................ ii

TABLE OF AUTHORITIES ..................................... iii

INTRODUCTION AND INTEREST OF

AMICI CURIAE .................................................... 1

SUMMARY OF ARGUMENT.................................... 4

ARGUMENT .............................................................. 5

I.

When Congress Considered And Passed

The First Step Act, States Had

Uniformly Concluded That The 100:1

Ratio Was Unjustified ................................ 5

II.

The 100:1 Crack-To-Powder Ratio

Threatens The Respect For And

Legitimacy Of The Criminal Justice

System ...................................................... 11

CONCLUSION ......................................................... 18

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Dorsey v. United States,

567 U.S. 260 (2012) ......................................... 1

Engle v. Isaac, 456 U.S. 107 (1982) .................... 11

Kimbrough v. United States,

552 U.S. 85 (2007) .................................. passim

King v. Burwell, 576 U.S. 473 (2015) ................. 16

United Haulers Ass’n, Inc. v. OneidaHerkimer Solid Waste Mgmt. Auth.,

550 U.S. 330 (2007) ....................................... 10

United States v. Anderson,

82 F.3d 436 (D.C. Cir. 1996) ......................... 15

STATUTES

First Step Act, Pub. L. No. 115-391,

132 Stat. 5194 (2018). ..................................... 2

2014 Cal Stat. 4922 ............................................ 10

2005 Conn. Acts 771 (Jan. Reg. Sess.) ................. 9

District of Columbia Mandatory-Minimum

Sentences Initiative of 1981, 30 D.C.

Reg. 1082-87 (Mar. 11, 1983) .......................... 7

District of Columbia Nonviolent Offenses

Mandatory-Minimum Sentences

Amendment Act of 1994,

D.C. Law 10-258, 42 D.C. Reg. 238

(Jan. 13, 1995) ................................................. 9

iv

2016 Md. Laws. 6239 .......................................... 10

1995 Neb. Laws 563 .............................................. 9

N.H. Rev. Stat. Ann. § 318-B:26 ........................ 10

2011 Ohio Laws 29 ............................................. 10

2018 Okla. Sess. Law 679 ................................... 10

Omnibus Narcotic and Abusive Drug

Interdiction Amendment Emergency

Act of 1989, D.C. Act 8-75, 36 D.C. Reg.

5769 (Aug. 11, 1989) ........................................ 7

Omnibus Narcotic and Abusive Drug

Interdiction Amendment Act of 1990,

D.C. Law 8-138, 37 D.C. Reg. 4154

(June 29, 1990) ................................................ 7

1993 Wis. Sess. Laws 640 ................................... 10

2000 Va. Acts 2494 ............................................... 9

EXECUTIVE AND LEGISLATIVE MATERIALS

155 Cong. Rec. S10492 (daily ed. Oct. 15,

2009) (statement of Sen. Patrick Leahy) ...... 15

156 Cong. Rec. H6202 (daily ed. July 28,

2010) (statement of Rep. Daniel

Lungren) ........................................................ 12

156 Cong. Rec. S1681 (daily ed. Mar. 17,

2010) (statement of Sen. Richard

Durbin) ....................................................... 1, 16

156 Cong. Rec. S1683 (daily ed. Mar. 17,

2010) (statement of Sen. Patrick Leahy) ...... 14

v

164 Cong. Rec. S7749 (daily ed. Dec. 18,

2018) (statement of Sen. Patrick Leahy) ...... 17

164 Cong. Rec. S7774 (daily ed. Dec. 18,

2018) (statement of Sen. Dianne

Feinstein) ................................................... 1, 17

164 Cong. Rec. S7777 (daily ed. Dec. 18,

2018) (statement of Sen. Charles

Grassley) .......................................................... 1

H.R. Rep. No. 111-670 (2010) ............................... 8

President George H.W. Bush,

Presidential Address On National Drug

Policy (Sept. 5, 1989) ....................................... 6

Letter from Senators Richard J. Durbin and

Patrick J. Leahy to Attorney General

Eric H. Holder, Jr. (Nov. 17, 2010) ............... 16

OTHER AUTHORITIES

Zita Arocha, Ex-Addict Says He Cooked

Cocaine at 10 Houses, Wash. Post

(July 16, 1986) ................................................. 6

Chris Myers Asch & George Derek

Musgrove Chocolate City: A History of

Race and Democracy in the Nation’s

Capital (2017) .......................................... 6, 7, 8

Bureau of Just. Stat., Compendium of

Federal Justice Statistics, 1994 (Apr.

1998)............................................................... 13

Bureau of Just. Stat., Compendium of

Federal Justice Statistics, 2003 (Oct.

2005)............................................................... 13

vi

Ruben Castaneda, S Street Rising: Crack,

Murder, and Redemption in D.C. (2014) ........ 5

Jacob Fenston, Crack’s Rapid Rise Brought

Chaos to D.C., WAMU (Jan. 27, 2014) ....... 5, 7

James Forman Jr., Racial Critiques of

Mass Incarceration: Beyond the New

Jim Crow, 87 N.Y.U. L. Rev. 101 (2012) ........ 9

Paul J. Goldstein et al., Crack and

Homicides in New York City: A Case

Study in the Epidemiology of Violence,

in Crack in America: Demon Drugs And

Social Justice 120 (Craig Reinarman &

Harry G. Levine eds., 1997) ............................ 8

H.L.A. Hart, The Concept of Law (3d ed.

2012)............................................................... 11

Henry M. Hart, Jr., The Aims of Criminal

Law, 23 Law & Contemp. Probs. 401

(1958) ............................................................. 14

Sari Horwitz & Linda Wheeler, D.C.

Operation Clean Sweep to Resume,

Officials Say, Wash. Post

(Apr. 29, 1987) ................................................. 7

Michael Massing, D.C.’s War on Drugs,

Why Bennett Is Losing, N.Y. Times

Magazine (Sept. 23, 1990) ............................... 6

Marc Mauer & Ryan S. King, Sent’g

Project, A 25-Year Quagmire: The War

on Drugs and Its Impact on American

Society (Sept. 2007) ....................................... 13

vii

R.H. Melton & Linda Wheeler, Once for

Elite, Cocaine Now An EqualOpportunity Vice, Wash. Post

(June 22, 1986) ................................................ 5

Matt Neufeld, Minimum Terms’ Demise

Wins Praise: But Prosecutors Say Bad

Message Sent, Wash. Times,

Nov. 3, 1994, at C5 .......................................... 9

NAAG Endorses First Step Act,

Nat’l Ass’n Att'ys Gen. (Dec. 20, 2018) ........... 3

U.S. Dep’t of Health & Hum. Servs.,

Substance Abuse & Mental Health

Servs. Admin., Results from the 2005

National Survey on Drug Use and

Health: Detailed Tables (Jan. 2006) ............. 12

U.S. Dep’t of Health & Hum. Servs.,

Substance Abuse & Mental Health

Servs. Admin., Results from the 2019

National Survey on Drug Use and

Health: Detailed Tables (Aug. 2020) ............. 12

U.S. Sent’g Comm’n, Fifteen Years of

Guidelines Sentencing (Nov. 2004)............... 13

U.S. Sent’g Comm’n, Report to the

Congress: Cocaine and Federal

Sentencing Policy (May 2002) ................ passim

U.S. Sent’g Comm’n, Report to the

Congress: Cocaine and Federal

Sentencing Policy (May 2007) ................ passim

U.S. Sent’g Comm’n, Special Report to the

Congress: Cocaine and Federal

Sentencing Policy (Feb. 1995) ................. 13, 15

1

INTRODUCTION AND

INTEREST OF AMICI CURIAE

In 2010, Congress enacted the Fair Sentencing Act

to address “a bipartisan consensus” that prior federal

“cocaine sentencing laws” were “unjust.” 156 Cong.

Rec. S1681 (daily ed. Mar. 17, 2010) (statement of

Sen. Richard Durbin). Following decades of “almost

universal criticism” of “[f]ederal cocaine sentencing

policy,” U.S. Sent’g Comm’n, Report to the Congress:

Cocaine and Federal Sentencing Policy 2 (May 2007)

(“2007 Report”),1 that landmark law “lower[ed] the

100-to-1 crack-to-powder ratio to 18-to-1” in the U.S.

Criminal Code, Dorsey v. United States, 567 U.S. 260,

269 (2012).

This law, however, did not apply retroactively,

meaning that offenders sentenced before the Fair

Sentencing Act was passed were still serving sentences under the 100:1 regime. Congress therefore

took steps in 2018 to “finally make[] the Fair Sentencing Act retroactive so that people sentenced under the

old standard can ask to be resentenced under the new

one.” 164 Cong. Rec. S7774 (daily ed. Dec. 18, 2018)

(statement of Sen. Dianne Feinstein). With “broad bipartisan support,” 164 Cong. Rec. S7777 (daily ed.

Dec. 18, 2018) (statement of Sen. Charles Grassley),

Congress enacted Section 404 of the First Step Act,

which allows for resentencing of anyone convicted for

any “violation of a Federal criminal statute, the statutory penalties for which were modified by section 2

or 3 of the Fair Sentencing Act of 2010.” Pub. L. No.

115-391, § 404(a), 132 Stat. 5194, 5222 (2018).

1

Available at https://bit.ly/3a5JXvV.

2

This case presents the question whether Congress

intended to provide that relief to the lowest-level,

least-culpable offenders convicted under the prior regime. The District of Columbia and the States of Colorado, Delaware, Illinois, Iowa, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey,

New York, North Carolina, Oregon, Pennsylvania,

Rhode Island, Vermont, Virginia, and Washington

(“Amici States”) submit this brief as amici curiae in

support of petitioner because the answer to that question is “yes.” Congress plainly intended for low-level

offenders to have the same opportunity to avoid the

harsh sentences of the now-discredited 100:1 regime

when it passed the First Step Act.

The Amici States represent jurisdictions across

the United States, all of whom have confronted the

crack cocaine crisis within their borders. Like the federal government, many states, including some of the

Amici States, singled out crack cocaine for particularly harsh treatment in their criminal codes at the

height of the cocaine epidemic, penalizing crack cocaine-related conduct exponentially more harshly

than powder cocaine. As the Amici States know from

their own experiences, that approach failed. States

have since concluded that the extreme differential between sentences for crack cocaine and powder cocaine

is both unwarranted and unwise. Today, the vast majority of states have eliminated any criminal disparity

between crack cocaine and powder cocaine. Those

that retain disparities, moreover, have done so at

multiples far narrower than 100 to 1.

The states’ uniform rejection of the 100:1 ratio was

a part of the background consensus against which

3

Congress legislated. Indeed, Congress understood—

like states before it—that the prior 100:1 ratio “foster[ed] disrespect for and lack of confidence in the

criminal justice system” because of its extreme racial

impact and its disproportionate punishment of the

least serious offenders. Kimbrough v. United States,

552 U.S. 85, 98 (2007) (quoting U.S. Sent’g Comm’n,

Report to the Congress: Cocaine and Federal Sentencing Policy 103 (May 2002) (“2002 Report”).2 Congress

sought to rectify those serious flaws when it passed

the First Step Act. And, with their own experiences

in mind, a bipartisan coalition of states and state attorneys general supported the First Step Act’s passage. See NAAG Endorses First Step Act, Nat’l Ass’n

Att’ys Gen. (Dec. 20, 2018).3

The Amici States therefore have an interest in seeing the Act’s landmark resentencing authorization

applied to all individuals—but especially the least

culpable—sentenced under the prior regime. As

amici know, Congress intended to right a historic

wrong and bring the federal government into conformity with state policies that reduced or eliminated

the crack-powder cocaine disparity. The Amici States

urge this Court to allow Congress to realize that intention by ensuring that the least culpable individuals can challenge their sentences imposed under the

prior discredited sentencing regime.

2

Available at https://bit.ly/3a8nKxp.

3

Available at https://bit.ly/2Z1YTVD.

4

SUMMARY OF ARGUMENT

1. When Congress was drafting the historic First

Step Act, states had reached a rare consensus that severe disparities between the treatment of crack cocaine and powder cocaine—like the ones codified in

the prior federal regime—were unnecessary and unwarranted. Many states followed paths similar to the

District of Columbia, which initially addressed an escalating crack cocaine crisis with harsh criminal penalties singling out crack cocaine versus powder cocaine. That approach failed, however, leading the

District to repeal its statutory distinctions between

crack and powder forms of the drug. Today, only a

handful of states enforce any disparity between crack

cocaine and powder cocaine, and those that do differentiate between the drug’s forms at multiples far below the 100:1 ratio codified in the prior federal regime.

2. The prior regime’s shortcomings go beyond policy failures. As sovereigns primarily responsible for

the enforcement of criminal law, states know firsthand the importance of a criminal justice system that

operates with the legitimacy bestowed by the full

trust of a consenting public. Although legislatures

have wide discretion to enact criminal prohibitions

consistent with their judgment, Congress repealed

the prior 100:1 ratio regime because it was the rare

enactment so disproportionate as to “foster[] disrespect for and lack of confidence in the” criminal law.

Kimbrough, 552 U.S. at 98 (quoting 2002 Report, at

103). As the U.S. Sentencing Commission documented, the prior federal regime undermined the public’s faith in the criminal justice system by creating

5

perceptions of race-based arbitrariness and punishing

offenders with little regard for their relative culpability. Congress intended Section 404 to minimize the

continued effects of that now-discredited framework.

It would make little sense for Congress to have excluded the least-culpable offenders from such relief.

ARGUMENT

I. When Congress Considered And Passed The

First Step Act, States Had Uniformly Concluded That The 100:1 Ratio Was Unjustified.

Like the federal government, states initially responded to the proliferation of crack cocaine in the

1980s with aggressive criminalization and heightened penalties directed at crack cocaine specifically.

Faced with the harsh human toll and ineffectiveness

of these provisions, however, states changed course in

the decades since. Today, every state has rejected the

extreme approach embodied by the prior federal regime.

The District of Columbia’s experience is illustrative. Like other urban centers, the District struggled

with spiraling drug and crime issues throughout the

1970s and 80s—including a spike in cocaine. See, e.g.,

R.H. Melton & Linda Wheeler, Once for Elite, Cocaine

Now an Equal-Opportunity Vice, Wash. Post (June

22, 1986).4 The subsequent proliferation of crack cocaine transformed the city, leading to a flourishing

black market, an influx of illegal firearms, and waves

of violence. See Jacob Fenston, Crack’s Rapid Rise

4

Available at https://wapo.st/2LKcy0w.

6

Brought Chaos to D.C., WAMU (Jan. 27, 2014).5 See

generally Ruben Castaneda, S Street Rising: Crack,

Murder, and Redemption in D.C. (2014).

As the Nation’s capital and one of its hardest-hit

cities, the District’s experience loomed large in the

public conversation around crack cocaine. The District “featured prominently” in hearings leading up to

the Anti-Drug Abuse Act of 1986, including in the testimony of a former dealer who—concealed behind

frosted glass—warned Congress that “[crack] cocaine

is everywhere in Washington.” Chris Myers Asch &

George Derek Musgrove, Chocolate City: A History of

Race and Democracy in the Nation’s Capital 404

(2017) (quoting Zita Arocha, Ex-Addict Says He

Cooked Cocaine at 10 Houses, Wash. Post (July 16,

1986)6). Framing the District as emblematic of a nationwide scourge, President George H.W. Bush famously addressed the public from the Oval Office to

warn that drugs were the “gravest domestic threat

facing [the] nation,” presenting a bag of “crack cocaine

seized” from “a park just across the street from the

White House.” President George H.W. Bush, Presidential Address on National Drug Policy (Sept. 5,

1989).7 And headlines in publications like The New

York Times Magazine highlighted the District as an

epicenter of the drug crisis. See Michael Massing,

D.C.’s War on Drugs, Why Bennett Is Losing, N.Y.

Times Mag. (Sept. 23, 1990)8 (“[N]o other city, it

5

Available at https://bit.ly/2MX5nT3.

6

Available at https://wapo.st/370Nk5t.

7

Available at https://bit.ly/3b8gkJR.

8

Available at https://nyti.ms/3cYeMV1.

7

seems, has been as ravaged by drugs as the nation’s

capital.”).

The District, like the federal government, therefore responded to “a national sense of urgency surrounding drugs generally and crack cocaine specifically.” 2002 Report, at 90. And, like the federal government, it did so primarily through aggressive criminalization and mass arrests. As the drug crisis began

to take root, District residents overwhelmingly enacted an initiative providing severe mandatory penalties for those distributing, or possessing with intent

to distribute, controlled substances, passing the

measure almost three to one. See District of Columbia

Mandatory-Minimum Sentences Initiative of 1981, 30

D.C. Reg. 1082-87 (Mar. 11, 1983). By the middle of

the 1980s, the District reportedly had the highest percapita drug arrest rate of any city in the nation. Asch

& Musgrove, supra, at 402. Mobilizing police officers

as part of “Operation Clean Sweep,” the city escalated

its efforts with recurring raids on open-air drug markets. Id. at 404-05; see Sari Horwitz & Linda

Wheeler, D.C. Operation Clean Sweep to Resume, Officials Say, Wash. Post (Apr. 29, 1987).9 Isaac Fulwood, who served as Chief of Police from 1989 to 1992,

recounted “arresting, literally on the weekends, sometimes, 800 or 900 people.” Fenston, supra.

By the end of the decade, the Council of the District of Columbia had amended the D.C. Code to treat

crack cocaine ten times as seriously as powder cocaine, first through emergency legislation and then

permanently. See Omnibus Narcotic and Abusive

9

Available at https://wapo.st/3a7Ux5y.

8

Drug Interdiction Amendment Emergency Act of

1989, D.C. Act 8-75, 36 D.C. Reg. 5769 (Aug. 11,

1989); Omnibus Narcotic and Abusive Drug Interdiction Amendment Act of 1990, D.C. Law 8-138, 37 D.C.

Reg. 4154 (June 29, 1990). These aggressive new laws

and tactics had a profound impact on the District’s

youth—particularly in communities of color. See Asch

& Musgrove, supra, at 404-05 (“[P]olice arrested one

of every four young men between the ages of eighteen

and twenty-nine on drug-related charges . . . [N]early

all those arrested were African American.”).

However, numerous assumptions about crack cocaine—many of which informed initial legislative responses—proved to be unsound. For example, there

is now consensus that crack cocaine and powder cocaine “have the same physiological and psychotropic

effects.” Kimbrough, 552 U.S. at 94. Crack cocaine is

now known to be no more violence-inducing than powder cocaine; correlations between crack cocaine and

violence instead stem from the illegal drug market,

not crack cocaine’s specific physiological effects. See

H.R. Rep. No. 111-670, at 3 (2010) (citing Paul J.

Goldstein et al., Crack and Homicides in New York

City: A Case Study in the Epidemiology of Violence, in

Crack in America: Demon Drugs and Social Justice

120 (Craig Reinarman & Harry G. Levine eds., 1997)).

And—of particular concern to some legislators—prenatal exposure to crack cocaine is now understood to

be “identical to the effects of prenatal exposure to

powder cocaine.” 2002 Report, at 21.

Faced with the effects of its harsh policies and the

lack of sound justification for treating crack cocaine

and powder cocaine differently, the District changed

9

course after just a handful of years. In 1994, the

Council of the District of Columbia voted to repeal the

portion of its criminal code requiring mandatory minimum sentences for nonviolent drug offenses and differentiating between crack cocaine and powder cocaine quantities. See District of Columbia Nonviolent

Offenses Mandatory-Minimum Sentences Amendment Act of 1994, D.C. Law 10-258, § 3, 42 D.C. Reg.

238 (Jan. 13, 1995) (repealing entire section). The

prior draconian regime, according to one Councilmember, had simply “failed to deter drug use and

drug sales.” Matt Neufeld, Minimum Terms’ Demise

Wins Praise: But Prosecutors Say Bad Message Sent,

Wash. Times, Nov. 3, 1994, at C5 (quoting Councilmember William Lightfoot); see James Forman Jr.,

Racial Critiques of Mass Incarceration: Beyond the

New Jim Crow, 87 N.Y.U. L. Rev. 101, 119 (2012) (describing repeal).

Although not every Amici State singled out crack

cocaine for differential treatment,10 the District of Columbia’s experience is not unique. Since first crafting

legislative responses to the crack cocaine epidemic,

numerous states have abandoned or softened regimes

that harshly differentiated between the drug’s crack

and powder forms. See, e.g., 2005 Conn. Acts 771

(Jan. Reg. Sess.) (P.A. 05-248) (equalizing penalties

for crack and powder); 1995 Neb. Laws 563 (L.B. 371)

(equalizing crack and powder disparities); 2000 Va.

10

Several of the Amici States, including Delaware and

Washington, have consistently treated crack and powder forms

of cocaine equally. See 2002 Report at 80-81.

10

Acts 2494 (H.B. 383) (reducing the disparity to 2:1);

1993 Wis. Sess. Laws 640 (93 Wis. Act 98) (same).

By the U.S. Sentencing Commission’s final report

in 2007, 37 states and the District had eliminated any

differential treatment in sentencing between crack

cocaine and powder cocaine. See 2007 Report, at 98

(surveying the remaining “13 states [that] have some

form of distinction between crack cocaine and powder

cocaine”). Since then, the number has fallen further

still. Today, only a handful of states differentiate at

all between crack cocaine and powder cocaine in their

criminal codes.11 Among those that do, none comes

close to the 100:1 disparity Congress had adopted; the

most severe is New Hampshire, at less than a third of

that ratio. See N.H. Rev. Stat. Ann. § 318-B:26(I)(a)

(treating five grams of crack cocaine and five ounces

of powder cocaine equally).

This Court has confirmed time and again that

states retain the primary “responsibility of protecting

the health, safety, and welfare of [their] citizens.”

United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid

Waste Mgmt. Auth., 550 U.S. 330, 342 (2007). In their

experience exercising that duty, states have approached the issue of drug abuse in different ways.

The Commission’s report analyzed the criminal codes of

Alabama, Arizona, California, Iowa, Maine, Maryland, Missouri,

New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, and Virginia. See 2007 Report, at 99-104. Since that report,

California, Maryland, Ohio, and Oklahoma have all eliminated

their disparities. See 2014 Cal Stat. 4922 (S.B. 1010) (equalizing

crack cocaine and powder cocaine quantities); 2016 Md. Laws

6239 (S.B. 1005) (same); 2011 Ohio Laws 29 (Am. Sub. H.B. No.

86) (same); 2018 Okla. Sess. Law 679 (S.B. 793) (same).

11

11

But they have all come to the same conclusion on the

issue of the severe disparities between the treatment

of crack cocaine and powder cocaine; namely, that

these disparities are unnecessary and unwarranted.

Congress passed the historic First Step Act against

the backdrop of this rare consensus among the states.

II. The 100:1 Crack-To-Powder Ratio Threatens

The Respect For And Legitimacy Of The

Criminal Justice System.

Under our constitutional system, “[t]he States possess primary authority for defining and enforcing the

criminal law.” Engle v. Isaac, 456 U.S. 107, 128

(1982). States, accordingly, have experience working

toward the aspirational goal of a criminal justice system that operates with the legitimacy bestowed by the

full trust of a consenting public. Of course, every law

will have its detractors, but the public understands

that legislatures have discretion to enact criminal

prohibitions consistent with lawmakers’ judgments,

and even unpopular legislative regimes do not necessarily erode confidence in the overall legal system.

As this Court has recognized, however, the prior

federal 100:1 regime was the rare enactment so disproportionate as to “foster[] disrespect for and lack of

confidence in the” criminal law. Kimbrough, 552 U.S.

at 98 (quoting 2002 Report, at 103). When Congress

abolished the 100:1 ratio, it was not simply adjusting

policy outcomes or reevaluating priorities in federal

criminal sentencing. Instead, Congress acted to correct what were widely seen as fundamental injustices

incompatible with foundational principles of criminal

administration.

12

First, the 100:1 ratio violated the precept that similar cases should be treated similarly. Justice “is traditionally thought of as maintaining or restoring a

balance or proportion, and its leading precept is often

formulated as ‘Treat like cases alike.’’’ H.L.A. Hart,

The Concept of Law 159 (3d ed. 2012). The 100:1 ratio, however, treated two similar acts—possession of

crack cocaine versus powder cocaine—vastly differently, and that difference impacted individuals along

racial lines. In the words of Representative Daniel E.

Lungren—who “helped to write” the 1986 legislation—the “racial sentencing disparities . . . simply

cannot be ignored in any reasoned discussion of this

issue.” 156 Cong. Rec. H6202 (daily ed. July 28, 2010)

(statement of Rep. Daniel Lungren).

Specifically, while drug usage rates are roughly

similar among racial and ethnic groups, racial groups

were unequally affected by the harsh drug sentencing

regime. Nearly 80 percent of crack users in the

United States are white or Hispanic. U.S. Dep’t of

Health & Hum. Servs., Substance Abuse & Mental

Health Servs. Admin., Results from the 2019 National

Survey on Drug Use and Health: Detailed Tables

tbl.1.31A (Aug. 2020).12 That rate is roughly the same

as it was in the mid-2000s. See, e.g., U.S. Dep’t of

Health & Hum. Servs., Substance Abuse & Mental

Health Servs. Admin., Results from the 2005 National

Survey on Drug Use and Health: Detailed Tables

tbl.1.43A (Jan. 2006).13 As the Sentencing Commission explained in its 2007 report, however, more than

12

Available at https://bit.ly/2OGqidA.

13

Available at https://bit.ly/2NI0H3K.

13

80 percent of crack cocaine offenders in 2006 were

Black. 2007 Report, at 15. The long-term statistical

impact is staggering: from 1994 to 2003, the average

prison time for Black drug offenders increased by

more than 77 percent, compared to an increase of less

than 33 percent for white drug offenders. Compare

Bureau of Just. Stat., Compendium of Federal Justice

Statistics, 1994, at 85 tbl.6.11 (Apr. 1998),14 with Bureau of Just. Stat., Compendium of Federal Justice

Statistics, 2003, at 112 tbl.7.16 (Oct. 2005).15

The 100:1 ratio, accordingly, received singular attention as an engine of racial inequality in the criminal justice system. Early on, the Commission singled

out the “ratio [a]s a primary cause of the growing disparity between sentences for Black and White federal

defendants.” U.S. Sent’g Comm’n, Special Report to

the Congress: Cocaine and Federal Sentencing Policy

154 (Feb. 1995) (“1995 Report”).16 The Sentencing

Project concluded that “African Americans serve almost as much time in federal prison for a drug offense

(58.7 months) as whites do for a violent offense (61.7

months),” a statistic “largely due to racial dispar[ities] . . . such as the 100-to-1 [ratio].” Marc

Mauer & Ryan S. King, Sent’g Project, A 25-Year

Quagmire: The War on Drugs and Its Impact on American Society 2 (Sept. 2007).17 The Commission suggested that “[r]evising the crack cocaine thresholds

would better reduce the [sentencing] gap than any

14

Available at https://bit.ly/2LHaqGM.

15

Available at https://bit.ly/3tLbWIW.

16

Available at https://bit.ly/3rAyM4a.

17

Available at https://bit.ly/2MLDjlO.

14

other single policy change, and it would dramatically

improve the fairness of the federal sentencing system.” U.S. Sent’g Comm’n, Fifteen Years of Guidelines Sentencing 132 (Nov. 2004).18

To be sure, the racial dynamics of contemporary

incarceration are complex, and the disproportionate

imprisonment of Americans of color cannot be explained by any one cause. But sentencing disparities

like the 100:1 ratio clearly play a role in exacerbating

racial disparities, and the Sentencing Commission’s

findings to that effect had an indelible effect as Congress considered ending the prior regime. As the

Commission explained to Congress, even “[p]erceived

improper racial disparity fosters disrespect for and

lack of confidence in the criminal justice system.”

2002 Report, at 103. The 100:1 ratio came to signify

that disparity; as Senator Patrick Leahy explained on

the Senate floor in 2010, the ratio stood as “one of the

most notorious symbols of racial discrimination in the

modern criminal justice system.” 156 Cong. Rec.

S1683 (daily ed. Mar. 17, 2010) (statement of Sen.

Patrick Leahy) (quoting letter to the Senate Judiciary

Committee from John Payton, then-President of

NAACP Legal Defense & Educational Fund, Inc.).

Eliminating that disparity was therefore an important step to restoring respect for and the legitimacy of the criminal justice system.

Second, while the goal of a criminal sentence is to

“adequately express[] the community’s view of the

gravity of the defendant’s misconduct,” Henry M.

Hart, Jr., The Aims of Criminal Law, 23 Law &

18

Available at https://bit.ly/3rGtSTs.

15

Contemp. Probs. 401, 437 (1958), the 100:1 ratio

hardly fulfilled that objective.

This Court has explained that the goal of the federal drug sentencing regime was to target “major drug

traffickers.” Kimbrough, 552 U.S. at 98. But as the

Commission and Congress both emphasized, the

quantities codified in the 100:1 ratio disproportionately criminalized the conduct of the lowest-level,

least culpable offenders. Because “[d]rug importers

and major traffickers generally deal in powder cocaine, which is then converted into crack by streetlevel sellers,” the 100:1 ratio led to the backwards result that high-level kingpins could receive shorter

sentences than local neighborhood-corner dealers. Id.

Unsurprisingly, even by the time of the Commission’s

initial report to Congress, it was clear that “[t]he majority of crack defendants . . . [we]re street-level.”

1995 Report, at 158. Over the years, the Commission

continued to emphasize that the “penalties swe[pt]

too broadly and appl[ied] most often to lower level offenders.” 2002 Report, at 97. Indeed, at the time Congress passed the Fair Sentencing Act, “more than half

of Federal crack cocaine offenders [were] low-level

street dealers and users,” and “not the major traffickers Congress intended to target” when it passed the

1986 law. 155 Cong. Rec. S10492 (daily ed. Oct. 15,

2009) (statement of Sen. Patrick Leahy).

As the Commission explained, these results did

not simply fail to achieve the policy ends of the original enactments; they “[f]ail[ed] to [p]rovide

[a]dequate [p]roportionality,” undermining respect

for the criminal law. 2002 Report, at 100. Indeed, the

Commission strikingly “acknowledged that its crack

16

guidelines bear no meaningful relationship to the culpability of defendants sentenced pursuant to

them. . . . [T]he Commission ha[d] never before made

such an extraordinary mea culpa acknowledging the

enormous unfairness of one of its guidelines.” United

States v. Anderson, 82 F.3d 436, 449-50 (D.C. Cir.

1996) (Wald, J., dissenting) (footnote omitted).

This Court has long been aware of the serious defects of the 100:1 regime. Before the passage of the

Fair Sentencing Act, “[f]ederal cocaine sentencing policy . . . c[a]me under almost universal criticism from

representatives of the Judiciary, criminal justice

practitioners, academics, and community interest

groups.” 2007 Report, at 2. In Kimbrough, this Court

itself acknowledged the Commission’s observations

that the prior regime “‘foster[ed] disrespect for and

lack of confidence in the criminal justice system’ because of a ‘widely-held perception’ that it ‘promote[d]

unwarranted disparity based on race.’” 552 U.S. at 98

(quoting 2002 Report, at 103).

The dissonance between the prior federal regime

and the goal of targeting more serious drug offenders

is especially relevant in this case because “[a] fair

reading of legislation demands a fair understanding

of the legislative plan.” King v. Burwell, 576 U.S. 473,

498 (2015). And these fundamental issues with the

prior sentencing regime were critical to Congress’s decision to make retroactive the Fair Sentencing Act.

In 2010, Congress faced “a bipartisan consensus”

that the prior “cocaine sentencing laws” were “unjust,” leading “the Senate Judiciary Committee [to]

report[] the Fair Sentencing Act by a unanimous 19to-0 vote.” 156 Cong. Rec. S1681 (daily ed. Mar. 17,

17

2010) (statement of Sen. Richard Durbin). The sponsors “believe[d]” the Act “w[ould] decrease racial disparities,” and would address the relative culpability

of low-level offenders in order “to restore fairness to

Federal cocaine sentencing.” Letter from Senators

Richard J. Durbin and Patrick J. Leahy, to Attorney

General Eric H. Holder, Jr. (Nov. 17, 2010).19 But

Congress realized its work was incomplete. Because

“this new law did not apply retroactively . . . there

[were] still people serving sentences under the 100-1

standard.” 164 Cong. Rec. S7774 (daily ed. Dec. 18,

2018) (statement of Sen. Dianne Feinstein). The purpose of Section 404 of the First Step Act was to “finally

make[] the Fair Sentencing Act retroactive so that

people sentenced under the old standard can ask to be

resentenced under the new one.” Id.

Given this backdrop, it is clear that Congress acted

precisely because the prior framework disproportionately punished the least culpable individuals, often

arbitrarily. Under the government’s reading of Section 404, however, Congress carved out the least-culpable offenders—and only the least-culpable offenders—from eligibility for retroactive relief. In addition

to serving little purpose, that construction would violate the very principles Congress invoked when abolishing the prior framework. Excluding the least-serious offenses would fail to treat like offenders alike (by

differentiating between otherwise-identical lowweight offenders pre- and post-2010) and would undermine the statute’s otherwise-consistent view that

sentences should reflect the conduct’s severity.

19

Available at https://bit.ly/3qwUHZQ.

18

This Court should reject that implausible reading.

Doing so would comport with Congress’s intent when

it passed the First Step Act, a “historic achievement”

meant to finally eradicate the continued effects of the

discredited 100:1 regime. 164 Cong. Rec. S7749 (daily

ed. Dec. 18, 2018) (statement of Sen. Patrick Leahy).

CONCLUSION

This Court should reverse the judgment below.

Respectfully submitted,

KARL A. RACINE

Attorney General for the

District of Columbia

LOREN L. ALIKHAN

Solicitor General

Counsel of Record

CAROLINE S. VAN ZILE

Principal Deputy Solicitor General

ASHWIN P. PHATAK

Deputy Solicitor General

HARRISON M. STARK

Assistant Attorney General

February 2021

OFFICE OF THE ATTORNEY GENERAL

400 6th Street, NW, Suite 8100

Washington, D.C. 20001

(202) 727-6287

loren.alikhan@dc.gov

On behalf of:

PHILIP J. WEISER

Attorney General

State of Colorado

KATHLEEN JENNINGS

Attorney General

State of Delaware

KWAME RAOUL

Attorney General

State of Illinois

THOMAS J. MILLER

Attorney General

State of Iowa

BRIAN E. FROSH

Attorney General

State of Maryland

MAURA HEALEY

Attorney General

Commonwealth of

Massachusetts

DANA NESSEL

Attorney General

State of Michigan

KEITH ELLISON

Attorney General

State of Minnesota

AARON D. FORD

Attorney General

State of Nevada

GURBIR S. GREWAL

Attorney General

State of New Jersey

LETITIA JAMES

Attorney General

State of New York

JOSHUA H. STEIN

Attorney General

State of North Carolina

ELLEN F. ROSENBLUM

Attorney General

State of Oregon

JOSH SHAPIRO

Attorney General

Commonwealth of

Pennsylvania

PETER F. NERONHA

Attorney General

State of Rhode Island

THOMAS J. DONOVAN, JR.

Attorney General

State of Vermont

MARK R. HERRING

Attorney General

Commonwealth of

Virginia

ROBERT W. FERGUSON

Attorney General

State of Washington