The most significant piece of justice reform in decades is flaming out

8 minute read

May 7 (Reuters) - One of the most significant criminal justice reform policies in a generation, according to many lawmakers, is apparently on the brink of a collapse.

It’s difficult to discern where fault lies in the potential demise of the First Step Act, given the sheer amount of time and effort that led up to passing the law in 2018, the unprecedented breadth of the coalition that worked to enact it, and the arbitrary nature by which it will probably be unwound.

So how did we get here - especially in light of the focus on criminal justice reform in national politics and the ongoing push to pass the George Floyd Justice in Policing Act?

On Tuesday, a majority of the U.S. Supreme Court expressed skepticism about the Biden administration’s position that low-level crack cocaine offenders are covered under the First Step Act.

The law was passed during the Trump administration explicitly to provide retroactive relief for prisoners and to address racial disparities in incarceration caused by more severe sentencing guidelines for crimes involving crack cocaine than for powder cocaine.

The Supreme Court seems poised to exclude low-level offenders like the defendant in the case, Tahirick Terry, from the Congressionally-granted power to petition a court for resentencing. Terry pleaded guilty in 2008 to a distribution offense after being caught with 3.9 grams of crack, worth around $50 at the time, according to his government-appointed lawyer in the case, Andrew Adler.

Almost all the justices said the statute’s text is ambiguous. A majority seems to think the law lends itself more readily to a different interpretation than was publicly expressed by nearly all the involved Republican and Democratic lawmakers ahead, during and after the law’s passage – and as the law has been understood and described since then, according to the Congressional record and reporting in December 2018 by Reuters and other major U.S. media.

The First Step Act makes the Fair Sentencing Act retroactive. The Fair Sentencing Act itself increased the amount of drugs necessary to trigger sentencing under two different tiers, from 5 grams to 28 grams in one tier, and from 50 grams to 280 in another. The law didn't say anything directly about a third tier.

In the Supreme Court case, the Biden administration is arguing that sentences in the third tier - for amounts less than 5 grams - were effectively modified because the law raised the ceiling to 28 grams, which leads judges to view cases like Terry's more leniently. But the justices during arguments seemed to believe that the statute needs to expressly amend the lowest tier.

A bipartisan group of lawmakers also told the court in a February 19 brief that they always meant to include low-level offenders, and that the statute’s plain language does so – contrary to how the U.S. Court of Appeals for the Eleventh Circuit decided Terry’s case, and how most of the justices are apparently reading it (other circuits, including the First, Fourth, and Seventh, have read the statute as covering all crack-cocaine offenses, the senators’ brief notes).

During oral arguments on May 4, Justice Stephen Breyer called the crack-powder cocaine disparities “ridiculous,” and said sentencing guidelines were set “much too high.”

That idea - sentencing crack offenders to longer prison terms at a 100-to-1 proportion compared with cocaine crimes - originated in the Democratic party in the 1980s. Eric E. Sterling, a former House Judiciary Committee counsel who helped write the mandatory minimums, has said the drug laws were developed almost entirely arbitrarily, without regard to existing research, according to interviews with PBS in 1999 and NPR in 2011. (Sterling has since renounced the laws and advocated for repeal).

The notion came about in the wake of the 1986 death of acclaimed University of Maryland basketball player Len Bias due to a powder cocaine overdose – as Justice Brett Kavanaugh noted Tuesday. The effect of Bias’ sudden death on the public convinced then-House Speaker Tip O’Neill that ramping up the war on drugs was a winning political idea, Sterling has said, and so O’Neill urged Democrats to enact tougher and disparate sentences in the Anti-Drug Abuse Act of 1986.

After decades of advocacy against racist mass incarceration, that 100-to-1 disparity was eliminated for future defendants by the Fair Sentencing Act of 2018. Later, lawmakers began working on the First Step Act, to grant retroactive relief to those already sentenced.

“The First Step Act finishes the job that the Fair Sentencing Act started of erasing the taint of the racially disproportionate 100-to-1 ratio,” deputy U.S. solicitor general Eric Feigin said during arguments on Tuesday.

The proposal garnered what was described as rare and broad bipartisan support, Reuters reported in December 2018. It was backed by Republican Judiciary Committee chair Chuck Grassley, conservative groups like the Fraternal Order of Police, and White House advisor Jared Kushner, NBC reported in December 2018. Even President Trump was publicly on-board, thanks largely to Kim Kardashian West, “who may have single-handedly changed the president’s mind” on the issue, according to NBC.

When the bill passed, Trump and a bipartisan slew of advocacy groups and lawmakers praised the measures as “historic,” and the “most significant criminal justice reform bill in a generation,” according to the Congressional record.

But there had been back-pedaling from the outset. Advocates warned that far-right Republicans who opposed the measure, like Senator Tom Cotton, had proposed amendments intended to undermine the bill, ABC reported in December 2018. And Republican Senate Leader Mitch McConnell resisted acting on it for some time, despite the early bipartisan support, Reuters reported in December 2018.

In January 2019, it was discovered that “an error in the bill” meant some prisoners would have to wait longer than was thought on earlier release for good behavior, my Reuters colleagues reported. At the same time, prosecutors were fighting against petitions for reduced sentences and “threatening to put more than a dozen inmates already released back behind bars,” Reuters reported in July 2019.

The Trump Justice Department then adopted an interpretation excluding lower-level offenders, despite the White House having backed the goal of doing justice for all offenders sentenced under the unfairly disparate guidelines.

And now at the Supreme Court, although the Biden administration is arguing for the more expansive interpretation, the justices seem inclined to adopt that narrower view - which would undoubtedly undermine the purpose of the law and could have a similarly restrictive effect on state-level restorative justice policies. (Grassley did not respond to my questions to his office seeking a comment for this column.)

That result would make for a rather ignominious end for such a highly-praised policy.

To my mind, the level of institutional failure here is proportional to the degree of praise and accomplishment with which lawmakers regarded the First Step Act. That Congress is potentially going back to the drawing board for what was a sensible and broadly-supported law speaks to the difficulties ahead in criminal justice reform.

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