Letter: Attorneys General Urge Congress to Further Address Historical Drug Sentencing Inequities by Amending the First Step Act

Illustration courtesy of FirstStepAct.org

California Attorney General Rob Bonta joined a bipartisan coalition of 25 attorneys general in urging Congress to amend the First Step Act of 2018 to ensure its resentencing relief extends to all individuals previously convicted of low-level crack cocaine offenses.

“We can’t undo the damage caused by the failed war on drugs, but we can demand change,” said Attorney General Bonta. “Today, a bipartisan coalition of attorneys general is doing just that. People unjustly sentenced to decades in prison for low-level crack cocaine offenses deserve relief under the law. They deserve a chance to rebuild their lives. We’re urging Congress to help make that happen by ensuring the First Step Act applies to everyone. All of our communities are entitled to equal justice under the law.”


By Rob Bonta, et al

Dear Leader Schumer, Leader McConnell, Speaker Pelosi, and Leader McCarthy,

As our jurisdictions’ Attorneys General, we are responsible for protecting the health, safety, and well-being of our residents. Although our jurisdictions vary in size, geography, and political composition, we are united in our commitment to an effective criminal justice system that safeguards the communities of our states. To that end, a bipartisan coalition of Attorneys General supported the passage of the First Step Act of 2018—landmark legislation that brought common sense improvements to myriad aspects of the criminal justice system. Central to these reforms was retroactive relief for individuals sentenced under the discredited   100-to-1   crack-to-powder   cocaine   ratio   that   Congress   abolished   in   2010. Following the Supreme Court’s recent opinion in Terry v. United States, however, the lowest level crack cocaine offenders  remain categorically ineligible for resentencing. We write today to urge Congress to amend the First Step Act, and to clarify that its retroactive relief applies to all individuals sentenced under the prior regime.

Congress enacted the historic First Step Act of 2018 to modernize the criminal justice system, implementing comprehensive reform in areas such as corrections, criminal charging, community  re-entry,  and  beyond.  The  product  of  a  unique  bipartisan  consensus,  the  Act passed with overwhelming support from organizations across the ideological spectrum, including the Heritage Foundation, the American Civil Liberties Union, Freedomworks, the National Urban League, the American Conservative Union, the Public Defender Association, Americans for Prosperity, and the Center for American Progress, among many others. Over three dozen Attorneys General supported the Act as a critical tool for strengthening our criminal justice system and better serving the people of our states.

One of the First Step Act’s key pillars was sentencing reform. This reform included Section 404, which provides retroactive relief for individuals sentenced under the discarded 100-to-1 crack cocaine-to-powder-cocaine ratio that Congress repudiated through the Fair Sentencing  Act  of  2010.  That  earlier  legislation  abolished  the  100-to-1  ratio  going  forward, reflecting the overwhelming consensus that treating crack cocaine and powder cocaine radically differently exacerbated racial inequality in the criminal justice system and resulted in unjustly severe sentences for low-level crack cocaine users.

But the Fair Sentencing Act applied only to sentences imposed after the Act’s passage. As Senator Cory Booker explained, it left thousands of “people sitting in jail . . . for selling an amount of drugs equal to the size of a candy bar” based solely on their sentencing date,1 underscoring the need, in Senator Mike Lee’s words, to apply the law “equally to all those convicted of cocaine and crack offenses regardless of when they were convicted.”2 Congress therefore included Section 404 in the First Step Act, which allowed  individuals sentenced under the discarded 100-to-1 ratio to seek discretionary resentencing.

Unfortunately, that critical work remains incomplete. In Terry v. United States, the Supreme Court concluded that while Section 404 clearly authorized certain mid- or high-level crack cocaine offenders to seek resentencing, it did not extend relief to the lowest-level offenders sentenced under the prior regime. Specifically, the Court relied on Section 404’s definition of a covered offense as any “violation of a Federal criminal statute, the statutory penalties for which were modified by” the Fair Sentencing Act. The Court reasoned that because the Fair Sentencing Act did not formally change the elements or penalties for the lowest level crack offenses—it merely changed the quantities needed to trigger mid- and high-level charges— the Act failed to modify the “statutory penalties” for the lowest category of offenders. As a result, these individuals are now the only ones sentenced under the earlier crack cocaine quantities that remain categorically ineligible for the First Step Act’s historic relief.

We urge Congress to close this gap. There is no reason why these individuals—and these individuals alone—should continue to serve sentences informed by the now-discredited crack-to-powder ratio. Discretionary relief is unambiguously available to serious dealers and kingpins sentenced under the prior regime; extending Section  404’s  scope  would  simply allow individual users and other low-level crack cocaine offenders to have the same opportunity for a second chance. We therefore urge Congress to clarify that Section 404 of the First Step Act extends to all individuals convicted of crack  cocaine  offenses  and sentenced under the 100-to-1 ratio—including the lowest level offenders.


Karl Racine, DC

Sean Reyes, Utah

Rob Bonta, California

Phil Weiser, Colrado

William Tong, Connecticut

Kathleen Jennings, Delaware

Leevin Taitano Camacho, Guam

Kwame Raoul, Illinois

Tom Miller, Iowa

Aaron Frey, Maine

Brian Frosh, Maryland

Maura Healey, Massachusetts

Dana Nessel, Michigan

Keith Ellison, Minnesota

Aaron Ford, Nevada

Andrew Buck, New Jersey (acting)

Hector Balderas, New Mexico

Letitia James, New York

Ellen Rosenblum, Oregon

Josh Shapiro, Pennsylvania

Peter Neronha, Rhode Island

TJ Donovan, Vermont

Mark Herring, Virginia

Robert Ferguson, Washington

Joshua Kaul, Wisconsin

About The Author

Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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