November 23, 2021
Carson City, NV – Today, Attorney General Aaron D. Ford joined a coalition of 17 attorneys
general urging the Supreme Court not to restrict the resentencing relief that
individuals serving harsh sentences can seek under the First Step Act, a
bipartisan criminal justice reform bill passed in 2018 that expanded resentencing
prospects for some drug crimes.
“The First Step Act is a vital step toward righting the wrongs
done under the criminal justice system during the crack cocaine epidemic, in
which communities of color were disproportionately impacted,” said AG Ford. “I
urge the Supreme Court not to weaken the bill’s power to do good for our
In 2010, Congress passed the Fair Sentencing Act to reduce the
disparity between sentences for crack cocaine and powder cocaine. The First
Step Act, a bipartisan criminal justice reform bill passed in 2018, included a
provision that made the Fair Sentencing Act’s reforms retroactive, allowing
those serving harsh sentences imposed under the former federal law to seek
In the 1980s, states and the federal government
responded to the prevalence of crack cocaine and public panic about its
supposedly unique dangers with aggressive penalties and targeted
criminalization. Federal sentencing laws treated crack cocaine much more
harshly than powder cocaine, with 100 times as much powder cocaine as crack
cocaine needed to trigger the same penalties.
Harsh penalties for crack cocaine exacerbated racial inequality in
the justice system. Historically, approximately 60% of crack users in
a given year have been white, but the majority of people sentenced for crack
cocaine offenses have been Black or Hispanic.
The coalition filed the amicus brief in Concepcion v.
United States, a case concerning what information a court may consider when
deciding whether to reduce a harsh sentence for a prior crack cocaine offense
under the First Step Act. Specifically, the coalition argues that courts should
be able to consider intervening changes to the law since the original sentence
was imposed, and intervening changes in a defendant’s factual circumstances,
such as good behavior in prison or evidence of rehabilitation.
In the brief, the attorneys general urge the Supreme Court to
reverse a lower court’s decision dramatically limiting what courts may consider
when resentencing otherwise eligible individuals under the First Step Act.
Relying on their historical experience addressing the crack cocaine crisis and
their unique authority as the primary enforcers of criminal law, the states
argue that during First Step Act resentencings, courts should be allowed to
consider intervening changes in the law and facts because:
- There is consensus that
applying dramatically harsher sentences for crack cocaine offenses over
powder cocaine offenses was unnecessary and unjust: When
Congress was drafting the First Step Act, states had uniformly concluded
that the extreme differential between sentences for crack cocaine and
powder cocaine was both unwarranted and unwise. Assumptions about crack
cocaine’s unique danger and addictiveness — which informed the original
decisions to impose harsher sentences — have been discredited, and there is now
widespread consensus that crack cocaine and powder cocaine have similar
- Sentencing reform has been
shown to improve public safety and save tax dollars: States
have experimented with sentencing reforms and reduced sentences for
drug-related offenses for decades and have seen these reforms improve
public safety, strengthen communities and decrease recidivism. These
reforms have also saved states billions of dollars. Congress passed the
First Step Act to realize these benefits at the federal level, and the Act
should be interpreted in a manner consistent with that aim.
- The First Step Act was
intended to right historic wrongs: Congress
passed the First Step Act in part to correct fundamental injustices in
federal cocaine sentencing laws and address the severe racial disparities
created by the prior sentencing regime. Sentencing reform is a powerful
tool to help correct the extreme over-incarceration of racial minorities
for drug-related crimes and promote racial justice. So far, 96% of those
granted sentence reductions under the First Step Act have been Black or
Hispanic. It would make little sense to require courts to limit the
factors they consider in resentencing and apply old rules no longer on the
books — including rules rejected by Congress, the courts, and the
Sentencing Commission — when Congress passed the First Step Act
specifically to correct the unjust and racially disparate sentences
brought on by the old regime.
In filing the brief, AG Ford
joins the attorneys general of Colorado, Guam, Illinois, Iowa, Maryland,
Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, North Carolina,
Oregon, Vermont, Virginia, Washington and the District of Columbia.
A copy of the amicus brief is attached.