Under the Anti-Drug Abuse Act of 1988, consequences for offenses regarding crack cocaine and powder cocaine were legally distinguished, setting a mandatory minimum sentence for the former. For every 100 grams of powder cocaine, defendants were given the same sentences as those charged with possession of one gram of crack cocaine, despite the two drugs being almost chemically identical. The 100-to-1 sentencing ratio fit the nation’s “tough on crime” policy framework. Soon, crack cocaine became stigmatized and racialized as a cheap drug used only by Black people, as it was relatively available in inner cities, despite most crack cocaine users being white or Hispanic. While the war on drugs and crack cocaine epidemic still affect Black-majority neighborhoods like Mott Haven, Bronx today, the Fair Sentencing Act of 2010 established a new 18-to-1 sentencing ratio, and the 2018 First Step Act made the Fair Sentencing Act retroactive — some charged with crack cocaine offenses prior to 2010 could be released early. Now, many are questioning whether or not the Fair Sentencing Act and First Step Act are enough.
The U.S. Supreme Court’s decision in Terry v. United States on June 14, 2021 held that the First Step Act only applies to high- and mid-level offenders, which motivated a “bipartisan coalition of 25 attorneys general [to urge] Congress to amend the First Step Act and extend critical resentencing reforms to individuals convicted of the lowest-level crack cocaine offenses,” according to the Office of the Attorney General for the District of Columbia. While Congress originally intended to only grant inmates the ability to petition for individual review in court through the First Step Act, changing the qualifications for offenders to be resentenced will do little to give low-level inmates justice nor will it address the issue at hand. Irredeemable and underlying flaws have caused its practical application to the Fair Sentencing Act to be lacking, indicating America’s incompetence in not only identifying but also tackling root causes to systemic criminal justice issues.
Because the First Step Act doesn’t guarantee crack cocaine offenders lighter sentences than their original prosecutions, any possibility of receiving sentencing reductions is dependent on the judges conducting reviews. If the law intended to make the Fair Sentencing Act retroactive, it should be able to provide clear and stable conditions for reductions. Otherwise, judges can easily have too much discretion under the First Step Act. For example, while serving his 12th year in a 30-year sentence for a crack cocaine offense, Lazelle Maxwell was denied resentencing by a district judge, who claimed that “while Maxwell is eligible for a sentence reduction, he is not entitled to it,” and that his priors demonstrate a lack of respect for the law. As shown in Maxwell’s case, judges not only hold the power to punish inmates for things unrelated to the drug offense but to disregard the First Step Act as a whole. Granting release on the judges’ terms and creating a plethora of discrepancies in reviews across the boards could have been prevented if resentencing under the First Step Act was a guarantee.
Judges determine whether nonviolent and career offenders should be released early through a system called Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN): a computerized algorithm that categorizes inmates as minimum, low, medium or high risk with no official definition for each category. PATTERN has consistently deduced that many white-collar offenders, who are predominantly white, are considered safe for public reintegration. Meanwhile, crack cocaine addicts and distributors with priors considered unsafe are predominantly Black due to biased policing strategies that stemmed from the war on drugs, such as placing more police officers in Black neighborhoods. As a result, “only 7 percent of black men in federal prisons would be considered low-risk enough to get out using PATTERN—compared with 30 percent of white men,” according to The Marshall Project. When assessing risk, it is crucial to not solely rely on biased practices and tools such as PATTERN to prevent racial disparities within the criminal justice system, which the First Step Act simply does not do.
Inmates can reduce their risk category through recidivism and rehab programs. However, an inmate with priors would potentially need to complete several of these programs in order to cancel out one juvenile offense. Meanwhile, federal prisons bar some inmates — particularly undocumented inmates — from such programs, despite this strategy’s potential effectiveness. Until adequate programs are offered, PATTERN will continue to ostracize Black folks from the public, deeming them unsafe.
In all, expanding eligibility to low-level offenders is not enough — federal inmates convicted of crack cocaiine offenses, especially those who are Black, are already denied the means to a fair review process. While the First Step Act is revered as a wrench in the prison system, theoretically “fixing” past laws, it ignores the unjust effects that those laws have already had: an entire history of addiction, stigma and mass incarceration associated with crack cocaine use. Revisions that remain complicit in the First Step Act’s flaws — not guaranteeing resentencing or that offenders see a judge, giving judges too much discretion and relying on risk assessment programs that ultimately favor white folks — are at risk of being a bandage solution and exacerbating racial disparities in the prison system caused by the war on drugs and crack epidemic. Until rehab programs become more accessible and risk assessment technology becomes less biased, guaranteeing a reduced sentence for all pre-Fair Sentencing Act inmates facing crack cocaine charges is necessary to ensure that the First Step Act addresses and mediates the influence of the crack epidemic in Black communities.
Julie Ha is a freshman majoring in philosophy, politics and law.