Politics

The Biden Administration Takes a Step Toward Undoing the Damage of the War on Drugs

The Justice Department asks the Supreme Court for a sentence reduction in a crack-cocaine possession case.

The US Supreme Court.
The US Supreme Court. MANDEL NGAN/Getty Images

Tarahrick Terry first began arguing for a reduced sentence in 2019. Eleven years prior, Terry pleaded guilty to possessing 3.9 grams of crack cocaine and was sentenced to 188 months imprisonment. During Terry’s time incarcerated, two key pieces of legislation have been passed: The Fair Sentencing Act of 2010 and the First Step Act of 2018.

The 2010 law raised the amounts of crack cocaine that triggered various tiers of criminal penalties. The First Step Act made the 2010 law retroactive once district courts were given the ability to lessen sentences of those with a “covered offense” committed before August 3, 2010. But despite Donald Trump’s having signed the First Step Act, the Trump administration maintained that Terry’s low-level offense fell outside the act’s coverage.

Advertisement
Advertisement
Advertisement
Advertisement

Not including certain low-level crack offenses under the statue carried on the racist disparities of the crack era. Sentences for crack were more severe than they were for powder cocaine, because crack was associated with stereotypes depicting Black folks as violent drug offenders. People selling crack, as well as those who suffered from addiction, were uniquely berated by politicians and the press.

“Crack was vilified by policymakers,” explained Maritza Perez, the director of the Drug Policy Alliance’s National Affairs office. “And it was politically popular to throw people who use drugs, specifically crack offenders, under the bus for cheap political wins.”

In September, Terry petitioned the Supreme Court saying he qualified for a sentence reduction, because the First Step Act made 2010’s Fair Sentencing Act retroactive. His case got a boost earlier this week, when President Biden’s Justice Department informed the Supreme Court they believe that Terry, and others who were incarcerated for low-level crack cocaine offenses, should have their sentences reduced under the First Step Act. The court plans to hear the case later this year.

Advertisement

In an interview with Slate, Perez spoke about the racist roots of the sentencing disparity, whether sentence reduction is enough, and if Biden’s reversal is an attempt to remedy his station as the architect of mass incarceration—even if it is a step in the right direction.

This interview has been edited for length and clarity. 

How would you explain the crack-cocaine sentencing disparity to people who may not be familiar with it, or the push to get low-level drug offenders released? 

This policy came to be during the tough-on-crime era when politicians sought to make the drug war the scapegoat for a lot of social problems. They found that it was a really politically popular thing to do. That led to a series of bills that built the system of mass incarceration that we know today. Part of that effort was the 1986 Anti-Drug Abuse Act, which created a disparity between people who were convicted of cocaine offenses versus people who were convicted of crack offenses. That disparity was a 100:1. (Note: The Fair Sentencing Act of 2010 reduced this disparity down to 18:1) 

Advertisement
Advertisement

So, it was a hundred times more harsh for people who were convicted of crack offenses. And the individuals who were typically convicted of crack offenses were people of color—but mostly Black people.

Crack was vilified by policymakers. And it was politically popular to throw people who use drugs, specifically crack offenders, under the bus for cheap political wins. The drug was super sensationalized in the media, even though, chemically, crack and cocaine have the same effects on the body. The only difference was that crack use was associated with Black Americans, whereas cocaine use was associated with white Americans. That’s just a stereotype. White people actually use crack and cocaine more than Black people do.

Advertisement

It’s becoming more well known what crack did to Black communities and what it is still doing. But what are the effects of mass incarceration on Black and Brown communities?

Advertisement

There are a lot of issues with our prisons, but the primary effect is that it’s taking people away from their families, their friends, and any systems of support they may have. And that actually leads to less public safety. So it doesn’t even make sense from a public safety standpoint.

When people are released from jail or prison, their sentence really isn’t over in many ways. There are about 50,000 collateral consequences attached to incarceration across the country. They range from barring people from public housing and public health benefits—things like SNAP and TANF. People can have their children taken away, be denied jobs or education because of their conviction. If you’re not an American citizen, you might even be exposed to deportation or losing your status. And this isn’t just people who have served time in jail or prison. This could also be the effects for somebody who’s just had contact with the criminal justice system, like an arrest, because there is a record of that that follows an individual around.

Advertisement
Advertisement

The effects of that on communities of color has been deeply profound. It’s led to less public safety. It’s led to family separation. It’s led to poverty and a host of mental health issues—and general health issues. Losing somebody to incarceration is very traumatic. Living in poverty is also very traumatic. So it has a tremendous impact.

Absolutely. If people who have been incarcerated for low-level crack cocaine offenses are able to get their sentences reduced, is that a step in the right direction? And, if it is, how so?

It would definitely be a step in the right direction. I want to point out that there are many individuals who are still languishing behind bars because of this sentencing disparity, and that would benefit tremendously. If this law became the law of the land tomorrow, they could go home and that would be huge. We’re talking about people who have served decades of time.

Advertisement

Another significant thing that would come from it is it would be one of the first times that I can recall the government actually acknowledging wrongdoing and trying to fix it. But if something like this were to pass, that would be an example of where the government acknowledged that this disparity was racist, anti-science, and had an unjust impact on communities of color, specifically Black communities. That within itself would be significant and, hopefully, it would lead to bolder change around sentencing and criminal justice reform.

Advertisement
Advertisement

Could this be perceived as an attempt by Biden to remedy his past involvement with the 1994 crime bill? 

I do think it’s part of Biden’s plan to account for the harm that he’s done in the past. Biden was one of the architects of mass incarceration in this country. Earlier, when I was talking about the tough on crime era, Biden could be considered a leader of that movement. So I think he understands that he has to repair those harms. And this is definitely one way to do that.

Advertisement
Advertisement

It’s also important to point out that Black and brown people delivered him to the White House. And this policy is one that specifically impacts those communities. It’s a racial justice issue, aside from being a significant criminal justice issue. I think he definitely has taken all of that into account. But it’s also the right thing to do.

Is this enough or is it just an adequate first step? 

It’s an adequate first step, but it’s certainly not enough. Our sentencing laws are so outdated and draconian, especially when it comes to drug offenses. The federal system is rife with people serving very long sentences for drug activity. We know that people in this country are exposed to mandatory minimums every day for drug activity.

Advertisement
Advertisement

We have long said that drug activity should be treated through a public health lens, not through a criminal justice lens. And if we do take that approach, there are so many people and in jails and prisons across this country who should not be there.

What would maybe start to be enough is if clemency was provided for people who are serving long sentences for drug offenses; if we completely ended the use of mandatory minimums; if we provided reparations to communities of color that have been torn apart by the war on drugs; and if we decriminalized drug possession and drug activity. Those things would go a long way.

This is just a start—a drop in the bucket of the work that’s left to do.

Advertisement