Attorney General Ford Joins Coalition Urging Supreme Court Not to Restrict Resentencing Under First Step Act

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 communities.”

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 relief.

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 effects.
  • 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.