One of the routine falsehoods promoted by critical race theorists holds that federal criminal statutes, particularly those dealing with illicit drugs, were passed with the racist intention of incarcerating disproportionate numbers of black people. The line has been peddled so often that, in some quarters, it’s considered gospel. As but one example, Ibram X. Kendi’s recent book Stamped includes the claim.
The reality of course is entirely at odds with CRT.
Now, Kendi’s book is riddled with factual and conceptual errors. The notion that drug laws passed by Congress in the 80s were a product of white supremacy is just one of a welter of false allegations by him, but he’s far from alone. Indeed, when it comes to critical race theorists, it seems that making statements well known to be false is simply de rigueur. Entire books and many articles have been written detailing the false claims just of the 1619 Project, a.k.a. the tip of the iceberg.
So the U.S. Supreme Court’s opinion in the recent case of Terry vs. U.S. comes as a fresh breeze of sound thought based on actual facts.
Justice Thomas wrote the June 14th opinion from which there were no dissents (Justice Sotomayor wrote a concurring opinion). Interestingly, the case is such an easy one that it’s a bit of a mystery (to me, at least) why the Court agreed to hear it. The trial court got the matter right and was affirmed by the Court of Appeals. The case is a simple matter of statutory construction and there’s no indication in it that other lower courts were at odds over how to interpret the law’s wording.
In brief, a crack dealer and serial offender, one Tarahrick Terry, was arrested for firearms offenses and selling crack cocaine in 2008. He pleaded guilty to the crack charge. Still in prison, he claimed that his sentence should be reduced based on the First Step Act, passed by Congress two years after his conviction. But he didn’t qualify for a reduction under the terms of the Act that applies only to those who were sentenced under the mandatory sentencing provisions of the 1986 crack statute. Terry didn’t receive a mandatory minimum sentence and therefore couldn’t benefit from the provisions of the First Step Act. Simple.
But that’s where the case got, if no more complicated, then certainly more interesting. Strangely, it appears that the Biden Justice Department agrees with the defendant, Tarahrick Terry. Terry requested a writ of certiorari while President Trump was still in office. The Trump DOJ opposed both the granting of the writ and the content of the appeal. In short, it agreed with the trial and appellate courts, opinions eventually endorsed by the SCOTUS. Given that the U.S., as represented by the Department of Justice, had been Terry’s prosecutor at every previous level, it was no surprise that it continued to be so under Trump at the final stage of the proceedings.
But then, astonishingly, the Biden Administration flipped. It announced to the Supreme Court that it would no longer prosecute the case against Terry, the case that was such a simple one, the case about which all the courts agree.
On the day the Government’s brief was due, the United States informed the Court that, after the change in administration, it would no longer defend the judgment.
That remarkable reversal by the Biden Administration required the Court to appoint an attorney ad litem to represent the United States. It did so and, of course, the U.S. prevailed.
Why would the Biden Administration refuse to do its job, i.e., represent the United States in court? I suspect it did so because of its utterly misguided embrace of critical race theory. After all, as stated earlier, CRT holds that crack sentencing laws were racially motivated, so why go to bat for them? Why not let convicts like Terry go free the way so many of them are in, for example, New York State?
The main reason I believe that CRT is what animated the Biden DOJ’s withdrawal is that, in his opinion for the Court, Justice Thomas was at pains to state correctly what’s so often stated falsely – the actual reasons the original crack law was passed. Those dicta have little-to-nothing to do with whether the First Step Act, passed decades later, applied to Terry. But Thomas spent a fair amount of time providing that background anyway. Why would he, if not to counter the patently untrue theories of CRT that seem to have urged the Biden DOJ to abandon its client – the United States – in favor of a black drug dealer?
In the mid-1980s, the United States witnessed a steep surge in the use of crack cocaine, and news of high-profile, cocaine-related deaths permeated the media. Witnesses before Congress, and Members of Congress themselves, believed that a “crack epidemic” was also fueling a crime wave. Crack, they said, was far more addictive and dangerous than powder cocaine; it was cheaper and thus easier to obtain; and these and other factors spurred violent crime.
In response to these concerns, Congress quickly passed a bill with near unanimity.
In a footnote, Justice Thomas recounts,
The Act passed the Democratic-controlled House, where it was introduced, 392 to 16. H. R. 5484, 99th Cong., 2d Sess. (1986); 132 Cong. Rec. 23003–23004 (1986). It passed the Republican-controlled Senate 97 to 2. Id., at 27251–27252. A majority of the Congressional Black Caucus cosponsored and voted for the bill… Many black leaders in that era professed two concerns. First, crack was fueling crime against residents in inner cities, who were predominantly black. For example, the president of an NAACP chapter in the D. C. region called crack “‘the worst thing to hit us since slavery,’” a sentiment echoed by the leading black newspaper in Los Angeles. J. Forman, Jr., Locking Up Our Own 158 (2017). Second, there were concerns that prosecutors were not taking these kinds of crimes seriously enough because the victims were disproportionately black. In the words of John Ray, a D. C. councilmember who spearheaded a successful effort to create mandatory minimum penalties: “‘Black crimes against blacks get very low sentences,’” unlike crimes against whites.
In short, the law that’s now routinely cited as proof of whites’ dogged desire for “white supremacy” was actually spearheaded by the Congressional Black Caucus and other blacks who were justifiably concerned that (a) crack cocaine was extremely dangerous, especially to black communities and (b) white prosecutors were too lenient on black drug offenders. Blacks in Congress and many others were doing what they thought best to protect blacks, mostly from other blacks. That’s what has the CRT crowd up in arms.
And, unless I miss my guess, it’s what spurred the Biden Administration to attempt to release a violent crack dealer before his sentence was up. Amazing, but true. With critical race theory, facts seldom matter, only the narrative. Fortunately, the opposite is true at the Supreme Court.