In early 2007, Carl Smith sold 1.69 grams of crack, less than half a teaspoon. He also sold a teaspoon of powder cocaine. A New Hampshire federal judge sentenced him to seventeen-and-a-half years imprisonment, the lowest end of the sentencing guidelines recommendation.
Last spring, Smith sought a sentence reduction under the First Step Act. The district court denied the request because he was convicted under a statutory subsection unaffected by the new law.
In essence, he had sold too little crack to go free.
According to an early 2020 analysis by the U.S. Sentencing Commission, the New Hampshire district courts granted just four sentence reductions under the First Step Act. The district of Rhode Island granted four times more reductions; the district of Connecticut granted five times as many.
Nationally, the average sentence reduction was 71 months. As a result, many defendants had served their time and could be released from incarceration. But not Carl Smith. He remained locked up during a pandemic. He appealed, arguing that the First Step Act covered his conviction.
After analyzing more than 500 First Step Act cases, including 90 relevant circuit court opinions, I know two things: this area of law remains in disarray and the circuit courts have largely dodged the tough issues.
They remain complicit in a decades-old mass incarceration scheme.
New Law an Admission of Congressional Guilt
The now-familiar history of the crack laws omits one key fact: Congress knew early on that the drug laws were disproportionately affecting Black defendants.
The mid-1980s laws set low quantity thresholds for lengthy prison terms, especially for crack. The laws worked in two ways. Some set statutory minimum terms for certain crimes and quantities.
Others gave the U.S. Sentencing Commission authority to set ranges for crimes, quantities, and criminal histories. Both the statutory minimums and sentencing guidelines ranges were mandatory. They required judges to treat every gram of crack as equivalent to 100 grams of powder cocaine.
If a defendant’s drug sale could be connected to a conspiracy, that enterprise’s total sales could serve as the operative quantity at sentencing. Defendants who sold small quantities of crack could escape the statutory mandatory minimums only to be ensnared by a harsh guidelines range on account of their prior convictions, including for selling small quantities of drugs.
From 1985-1995, the proportion of federal inmates serving time for drug crimes doubled. The number of weapons offenders rose more than 800 percent. The proportion of Black and Latinx inmates grew.
And Congress knew.
In 1995, the Sentencing Commission told Congress that Black defendants accounted for nearly 90 percent of crack cocaine convictions and that most of their customers were white. In 1996, the Bureau of Justice Statistics (BJS) reported the changing nature of the federal prison population using bold-faced sub-headers such as: “An increasing percentage of the Nation’s prisoners are black or Hispanic.”
In 1999, the BJS reported that the length of federal prison sentences had increased 40 percent.
By the mid-1990s, lawmakers understood that dealers like Carl Smith were serving prison terms usually reserved for second-degree murder, or intentional murder demonstrating an extreme indifference to human life. Yet Congress provided no relief, for decades.
In 2010, Congress raised the quantity necessary for future statutory minimum sentences in the Fair Sentencing Act; the law did not help defendants sentenced at the height of the drug war. A few thousand people remained incarcerated under the old crack laws. Their only hope was an historic reform amounting to an admission of Congressional guilt. The First Step Act was that law.
A bipartisan coalition heralded the First Step Act as the end of the draconian drug laws. The Act gave sitting judges the authority to reopen the old crack cases and impose more appropriate sentences.
As Senator Cory Booker (D-NJ) summarized in December 2018: “this . . . give[s] judges discretion back—not legislators but judges who sit and see the totality of the facts.”
The intent of the law was clear, but some judges wavered.
Judges Duck Responsibility for Justice
There are two plausible ways to read the resentencing section—section 404—of the First Step Act: as a small fix to the Fair Sentencing Act of 2010 or a broad mandate to rectify thousands of unjust sentences.
The broad reading is historically, legally and morally correct. But hundreds of hearings in, the nation’s district courts remain divided on the law’s most basic tenets, like which defendants can be resentenced or what Section 404 empowers judges to do.
Some judges apply Section 404 narrowly. A subset dismiss cases involving too little or too much crack without a review of the other facts. Still others review all cases implicating a Fair Sentencing Act statute, but only to perform a new mathematical calculation.
They do not consider a defendant’s post-sentencing conduct or intervening changes in the law, even favorable state and federal supreme court rulings. Their narrow interpretations of the law unnecessarily depress the length of sentence reductions.
Other judges construe Section 404 broadly. They view the First Step Act as a gateway to relief. Some find that they can revisit the sentences of small-time dealers or inmates serving hybrid sentences for interconnected drug and weapons crimes.
Some believe that they may consider a defendant’s good conduct, prison coursework and recent high court rulings. Broad-view judges find that Congress empowered them to mitigate the damage of the old crack laws. Their proof? The text of the law, including the word “impose” as a mandate to issue an independent sentence — and the testimony of a dozen or more senators, of both parties, characterizing the First Step Act as redress for the old drug laws.
Recently, the First Circuit adopted a broad view in Carl Smith’s case.
That appellate opinion is reason for hope that the circuit courts will raze the remains of the old crack laws. This summer, the appellate courts should adopt a broad reading of the
First Step Act. That reading should require sitting judges to issue meaningful sentence reductions, including ‘timed served’ in many cases.
And, it should hold sitting judges accountable for the continued incarceration of non-violent drug dealers who have served a decade or more.
Amidst global protests for freedom, liberation and justice for Black citizens, and a raging pandemic, the courts must fully enact the First Step Act as Congress intended.
Sarah E. Ryan is a practicing attorney and Associate Professor of Practice at Wesleyan University.