RICHMOND (October 1, 2021) – Attorney General Mark R. Herring has filed an amicus brief defending a Pennsylvania law limiting the issuance of concealed-carry licenses to people ages 21 and up. In the brief filed in the U.S. Court of Appeals for the Third Circuit, Attorney General Herring and a coalition of 20 attorneys general argue that states have the right to enact reasonable, age-based firearm regulations that protect public safety and reduce the prevalence of gun violence.
Attorney General Herring and his colleagues filed the brief in Lara v. Commissioner of the Pennsylvania State Police, a lawsuit challenging a Pennsylvania law that generally restricts the issuance of concealed-carry permits to people ages 21 and up. A lower court ruled in this case that laws regulating the sale of firearms to young people are longstanding and constitutional.
“States must have the ability to enact reasonable, age-based firearm regulations that keep their communities and their citizens safe,” said Attorney General Herring. “These and other age-based gun safety measures have proven effective in maintaining public safety and potentially keeping guns out of the hands of dangerous individuals. I will continue to stand with my colleagues in supporting a state’s right to enact commonsense gun safety policies that maintain public safety goals and keep communities and families safe.”
In the brief, Attorney General Herring and his colleagues argue that the Second Amendment gives states the ability to enact sensible regulations designed to protect the public, including age-based restrictions that limit the ability of people younger than 21 to carry concealed firearms in public. Although regulations differ based on each state’s needs, virtually every state and the District of Columbia has imposed some age-based restrictions on the sale or use of firearms, and over 30 states and the District of Columbia have enacted statutes which prohibit people younger than 21 from carrying concealed firearms in public. Similarly, courts across the country consistently have upheld age-based regulations, noting that the goal of these regulations is to deter crime and promote public safety.
Earlier this month, Attorney General Herring helped successfully defend a longstanding federal gun violence prevention measure that limits the sale of handguns to those aged 21 and older, after he and Maryland Attorney General Brian Frosh filed an amicus brief defending the decades-old law.
Additionally, last week, Attorney General Herring filed an amicus brief in the U.S. Supreme Court defending New York’s law regulating when individuals may obtain a license to carry firearms in public. Attorney General Herring and his colleagues argued that the Second Amendment does not provide Americans with an unrestricted right to carry loaded firearms in virtually all public places, but instead, in keeping with centuries of tradition, allows states to enact policies regulating public carry that are tailored to local public safety concerns and needs.
Joining Attorney General Herring in filing the amicus brief are the attorneys general of California, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, and Washington.
State Board: Schools, students and families face continuing challenges from COVID-19 pandemic
RICHMOND — Staff shortages, unfinished learning, and enrollment loss are identified as the top pandemic-related challenges facing Virginia’s public schools in the state Board of Education’s annual report to the governor and General Assembly.
“With the multifaceted impact of the pandemic, teachers, principals and staff have responded with resilience, professionalism, and compassion. Schools are undertaking heroic efforts to address the academic needs of students related to unfinished learning, and support students’ social well-being and mental health,” Board of Education President Dan Gecker said. “While there is much reason for optimism as the commonwealth navigates a path to recovery, the pandemic and its lingering impacts continue to present significant challenges for public schools.”
The board noted in its 2021 Annual Report on the Condition and Needs of Public Schools in Virginia that while information on the impact of the pandemic on staffing shortages is still largely anecdotal, preliminary indications suggest that teacher shortages have intensified due to the pandemic. School divisions are also experiencing challenges recruiting and retaining support staff, including school bus drivers and nutrition staff. Early childhood education and care programs face similar staffing challenges. The board notes that the disparity between child care wages and the cost of living results in significant turnover of staff in early childhood classrooms and child care centers.
“Growing school staffing shortages were a concern before the pandemic, but the pandemic has exacerbated issues related to recruitment and retention of teachers, school bus drivers, school counselors, and others – all of whom are critically important to the full recovery of our students,” Gecker said.
The state board also reports that the commonwealth’s public schools enrollment fell by more than 45,000 students between the 2019-2020 and 2020-2021 school years, but remained relatively stable between 2020-2021 and 2021-2022. Since most state support for public education is allocated on a per-pupil basis, enrollment declines would likely impact local school division budgets absent the continuation of “no-loss” funding by the 2022 General Assembly for the 2023-2024 biennium.
Enrollment in publicly supported early childhood care and education programs has also been impacted by the pandemic. The Board of Education’s annual report acknowledges the challenges faced by families dependent on early childhood programs and warns that drops in enrollment in early childhood programs will likely impact school readiness in future years.
The annual report points to steep declines in the performance of students on state Standards of Learning assessments in 2021 as evidence of the impact of the disruptions to instruction since the beginning of the pandemic in early 2020.
“Moving forward, Virginia must remain steadfast in our commitment to helping all students complete unfinished learning and attain grade-level proficiency, especially in reading and mathematics,” Vice President Jamelle S. Wilson said. “Our strategies must include tailored and equitable supports targeted to the individual needs of students to ensure their long term academic success.”
The board’s annual report notes that Virginia schools continue to be underfunded. The board cites a 2021 Joint Legislative Audit and Review Commission study that ranked the commonwealth 40th in the nation for state per-pupil funding.
The annual report urges adoption by the General Assembly of the Standards of Quality prescribed by the Board of Education in October, which seeks to ensure that every child is taught by an effective educator, highlighting the importance of teachers and building school and division leadership.
The board identifies the creation of the Enhanced At-Risk Add-on Fund as a critical priority. The fund would consolidate the current at-risk add-on and other state prevention, intervention, and remediation programs into a single, expanded fund within the SOQ distributed to divisions based on concentrations of students in poverty. This fund addresses disparities in the state funding model for at-risk students and directs resources to serve those student populations that most benefit from additional, targeted support.
The Board of Education approved the 2021 Annual Report on the Condition and Needs of the Public Schools in Virginia at its November 18 business meeting in Richmond. The report was delivered this week — as required by the state constitution — to Governor Ralph Northam and the General Assembly.
Thanksgiving holiday weekend crashes claim four lives
Over the 2021 Thanksgiving statistical counting period, preliminary data shows that there were four fatal traffic crashes in Virginia. This is the lowest number of traffic fatalities during Thanksgiving in more than a decade.
“Although even one life lost is a tragedy, this Thanksgiving has given us something to truly be thankful for,” said Colonel Gary T. Settle, Virginia State Police Superintendent. “Patience, keeping your attention on the road and buckling up are the anecdote to the record number of traffic fatalities we have seen the past two years. This Thanksgiving, the number of people issued summons for reckless driving and seatbelts were down compared to last year, even though we know more people were on the roads. This brings home the point, that if we all do our part on the road everyone can have a safe holiday.”
In total, during the five-day period, which began at 12:01 a.m. Nov. 24, 2021 and concluded at midnight Nov. 28, 2021, four people lost their lives to traffic crashes in Virginia. The fatal crashes occurred in the counties of Albemarle, Chesterfield, Fairfax and Spotsylvania. Of those crashes, one involved a pedestrian and one was not wearing a seatbelt.
This is a decrease from 2020 when there were 12 traffic fatalities during the five-day Thanksgiving statistical counting period. This is also the lowest number of traffic fatalities during the counting period in more than a decade. *
In an effort to prevent traffic deaths and injuries during the Thanksgiving holiday, the Virginia State Police participated in Operation C.A.R.E. – Crash Awareness and Reduction Effort. Operation CARE is an annual, state-sponsored, national program during which state police increases its visibility and traffic enforcement efforts during the five-day statistical counting period.
The 2021 Thanksgiving Holiday CARE initiative resulted in troopers citing 5,127 speeders and 1,565 reckless drivers statewide. Virginia troopers arrested 65 drivers for driving under the influence of alcohol and/or drugs, and cited 477 drivers for failing to buckle up themselves and/or juvenile passengers.
State police responded to 1,273 traffic crashes across the Commonwealth, with 139 of those resulting in injuries. State police also assisted 1,151 disabled/stranded motorists during the Thanksgiving weekend.
Funds generated from summonses issued by Virginia State Police go directly to court fees and the state’s Literary Fund, which benefits public school construction, technology funding and teacher retirement.
Governor Northam: ‘These Four Years Mean One Thing for Transportation’
Governor Ralph Northam today told transportation industry leaders that he will turn over to Virginia’s new governor a comprehensive multi-modal transportation system that is dramatically stronger and more forward-looking than ever before.
“These four years mean one thing for transportation—you’ll be able to get to work, back home, and travel around Virginia faster, safer, and easier,” said Governor Northam. “We have put in place once-in-a-generation investments that are making the Commonwealth better for people, goods, and the environment. I am proud of our strong partnerships and the hard work our agencies are doing to deliver these crucial improvements on time and on budget.”
Northam spoke at the three-day annual Governor’s Transportation Conference that brings together transportation industry leaders and policymakers to discuss major issues facing the industry. The Governor and Secretary of Transportation Shannon Valentine reviewed the major progress made over the past four years.
“Virginia’s historic transportation achievements have revolutionized travel, and it was my honor to discuss our progress at the Governor’s Transportation Conference today,” said Secretary of Transportation Shannon Valentine. “We are using every asset available to provide Virginians with improvements in rail, roads, bridges, and more. The Commonwealth’s forward-thinking approach is creating safe and efficient infrastructure that will meet the demand of many generations to come.”
These groundbreaking improvements in transportation infrastructure were largely made possible by the passage of the Omnibus Transportation Bill. The bill addressed the sustainability of transportation revenues, providing the largest transportation funding increase in a generation. It also established the Virginia Passenger Rail Authority and authorized bonds to improve Interstate 81.
Transforming Rail in Virginia
The Transforming Rail in Virginia initiative is the Commonwealth’s answer to growing traffic congestion. The population of Virginia is expected to grow from 8.5 million to 10 million over the next 25 years, with 20 percent of that growth expected in Northern Virginia, only compounding congestion problems and putting more pressure on the transportation network. Increases in passenger rail service are meeting the growing demand, not only among Virginians but throughout the eastern seaboard as an alternative to traveling the heavily congested I-95 corridor.
As part of the initiative, Governor Northam announced agreements with Amtrak, CSX, and Virginia Railway Express, launching a $3.7 billion investment to expand and improve passenger, commuter, and freight rail in Virginia and create a vital connection in America’s national rail network between the Northeast and Southeast corridors.
The agreement includes plans for the construction of a new $1.9 billion “Long Bridge” over the Potomac River dedicated to passenger rail, acquisition of 386 miles of the railroad right-of-way and 223 miles of track from CSX, and an investment of more than $1 billion in additional infrastructure improvements by the Commonwealth. These investments are allowing Virginia to expand Amtrak and VRE services, create a pathway for the separation of freight and passenger rail in Virginia, and preserve future rail corridors.
Governor Northam also announced an agreement with Norfolk Southern Railway this spring to extend passenger rail service to the New River Valley for the first time since 1979. This agreement is increasing intercity passenger rail service from Roanoke to the Northeast Corridor. The agreement includes both an increase of existing service and expansion of service to the New River Valley.
Investing in Metro’s State of Good Repair
Governor Northam negotiated a landmark bipartisan agreement that is providing Metro with a dedicated source of revenue for the first time in the system’s history. The Metro system is vitally important to the economy and commuters, and this funding ensures that Metro can continue to provide necessary services to the people who rely on it every day. Virginia secured $500 million annual funding dedicated to rebuilding the aging system. Metro must provide annual reports on performance and safety to continue receiving these funds.
Expanding the Hampton Roads Bridge-Tunnel
Significant improvements along major road corridors are being implemented across the Commonwealth, including one of the largest transportation investments in the Commonwealth’s history—the expansion of the Hampton Roads Bridge Tunnel. The $3.8 billion project is increasing tunnel and interstate capacity along 9.9 miles of Interstate 64 between Hampton and Norfolk, reducing congestion and easing access to the Port of Virginia and the world’s largest Naval base. This work also aligns with efforts to implement a 44-mile Hampton Roads Express Lanes Network.
Addressing the Worst Highway Bottleneck in Virginia
Governor Northam announced a bipartisan agreement with Maryland that is creating a unified Capital Beltway, replacing the aging American Legion Bridge, and relieving congestion at one of the country’s worst traffic chokepoints. The project is expected to cut commuting time in half for many travelers, create a reliable transit option, reduce congestion in the regular lanes by 25 percent, provide 40 percent more lane capacity over the old bridge, and include bicycle and pedestrian paths across the Potomac River. The collaboration with Maryland allows for uninterrupted improved travel between and around the two states.
Expanding the Port of Virginia
Virginia is now home to one of the most modern and technologically advanced ports in North America. The $670 million expansion of the Port of Virginia has positioned the Commonwealth as a gateway to global markets. Virginia secured a federal permit and authorized state funding to dredge the Port of Virginia to 55 feet—the deepest Port on the East Coast, allowing access for larger ships.
The expansion of the Port has increased the capacity of ships we are able to process, with record-setting volumes. Because of these strategic investments in advanced technology, Virginia has been able to avoid the shipping backlog that is affecting ports around the world.
Interstate 81 is a significant highway in Virginia, connecting western and Southwest Virginia residents. The interstate is also a major corridor for trucking and freight, carrying $300 billion in commerce and goods each year. In recent years, Virginians raised concerns about safety and reliability, so Governor Northam dedicated billions to make improvements and secure a steady source of funding for I-81. The Interstate 81 Improvement Plan will reduce crashes and alleviate points of congestion. The funding also included additional funding to support improvement projects along I-95 and I-64.
AG Herring files amicus brief to support Biden-Harris Administration rule broadening the scope of Title X family planning grants
RICHMOND (November 30, 2021) – Attorney General Mark R. Herring has filed an amicus brief in Ohio v. Becerra in support of the new Title X rule promulgated in 2021 by the U.S. Department of Health and Human Services (HHS) that removes harmful restrictions put in place by the Trump Administration. The new rule will result in the distribution of Title X funds to a greater number of family planning and related preventive health service providers that deliver care to millions of low-income or uninsured individuals and others. Attorney General Herring has joined a coalition of 24 attorneys general in filing the amicus brief.
Title X is the only federal grant program that funds family planning and counseling programs to help patients access contraception, as well as breast and cervical cancer screenings, screenings and treatments for sexually transmitted infections, and other related health services.
“Title X has been instrumental in giving women in low-income communities access to family planning programs, and preventative and reproductive healthcare, but unfortunately, with its ‘gag rule’ the Trump Administration worked hard to limit a woman’s ability to make her own choices about her body,” said Attorney General Herring. “The Biden-Harris Administration’s new Title X rule will remove those harmful Trump-era restrictions and distribute Title X funding to a greater number of healthcare providers, in turn helping more families across the country. I am proud to join my colleagues in supporting this new Title X rule that will give low-income and uninsured individuals in Virginia and around the country better access to healthcare.”
Attorney General Herring’s brief supports the new HHS rule, issued in 2021, that broadens the scope of federal grants under Title X, in part, by eliminating the harmful provisions of the 2019 Trump Administration rule — also known as the “gag rule.” The 2019 rule 1) imposed onerous requirements for physical separation between abortion and non-abortion services at clinics that provided abortion services and 2) prohibited clinicians from providing referrals to abortion providers, even when directly requested by the patient. By contrast, under HHS’s new 2021 rule, Title X funds can, once again, go to clinics that do not physically separate non-abortion and abortion services, and that provide referrals to abortion providers at a patient’s request. The coalition’s brief argues for the court to reject a request by a group of plaintiff states for a preliminary injunction of the 2021 rule.
Attorney General Herring and his colleagues argue that the plaintiffs’ proposed injunction would put patients and providers in harm’s way by returning to the 2019 Trump Administration rule, which caused dramatic loss of Title X providers and a substantial decrease in patient visits and health care services provided. Underserved communities were especially impacted by the loss of essential care, particularly low-income individuals, minorities, LGBTQ+ individuals, individuals living with disabilities, minors, and those living in rural areas.
The 2021 HHS rule allows lost providers to reenter the Title X program and improves client outcomes by providing greater access to and a wider range of health care services and promotes health equity by emphasizing efforts to reach underserved communities.
Attorney General Herring and his colleagues have fought hard to protect Title X funding. In March 2019, Attorney General Herring sued the Trump Administration challenging the constitutionality of its Title X “Gag Rule” that restricted healthcare providers that receive certain federal funds from counseling or making referrals for abortion. After the U.S. Court of Appeals for the Ninth Circuit upheld the new “gag rule”, Attorney General Herring filed a petition that asked the U.S. Supreme Court to hear the case. Separately, Attorney General Herring filed an amicus brief in a different lawsuit brought by the city of Baltimore against the Trump Administration’s Title X rule. The U.S. Court of Appeals for the Fourth Circuit struck down the rule – enjoining it in Maryland while it remained in place across the rest of the nation – after which the Trump Administration filed its own petition asking the Supreme Court to hear the case. In March 2021, the coalitions in both cases joined with the Biden-Harris Administration to ask the Supreme Court to dismiss both cases, while the Biden-Harris Administration acted to rescind and replace the rule. In May 2021, the Supreme Court entered the order to dismiss both cases and denied efforts by additional parties to step in and defend the gag rule. At the same time, Attorney General Herring sent a comment letter to HHS applauding the agency’s proposed rule to undo the harmful, Trump-era Title X “gag rule.”
Joining Attorney General Herring in filing today’s amicus brief are the attorneys general of California, Colorado, Connecticut, Delaware, Hawai’i, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, Wisconsin, and the District of Columbia.
Governor Northam celebrates major advances to clean Chesapeake Bay
Governor Ralph Northam announced on November 30, 2021, the completion of the largest oyster restoration project in the country, in Virginia’s Piankatank and the Great Wicomico rivers. Oysters are a critical natural component of Virginia’s work to clean the Chesapeake Bay, as one oyster can filter up to 50 gallons of water a day. The Bay is the largest estuary in the United States with a watershed that encompasses six states that are home to more than 18 million people.
Thanks to investments made under Governor Northam, Virginia now provides more funding for the Bay than under any previous Governor, investing more than $756 million in funding to help farmers, localities, and wastewater treatment operations reduce pollution from nutrients and sediment.
Virginia has been working to restore the native oyster populations in the Chesapeake Bay with one of the largest and most elaborate plans in the nation. Virginia has fully restored four tributaries: the Lafayette, the Eastern branch of the Elizabeth, the Piankatank, and the Great Wicomico. Oyster populations are restored by constructing new reefs and planting young oysters to create new ecosystems.
“As someone who grew up on the Chesapeake Bay, I could not be more proud of the progress Virginia has made,” said Governor Northam. “This administration has invested $10 million for oyster restoration during the past four years. Several years ago, Virginia joined other states on the Chesapeake Bay watershed and agreed to conduct a series of clean-up measures by a deadline of 2025. Today’s announcement is a major step in achieving the goals in the Chesapeake Bay Watershed Agreement. The investments we make in our natural resources—and our environmental stewardship—are paying off.”
Over the past two years, the Virginia Marine Resources Commission deployed more than 50,000 tons of rock and nearly 100,000 bushels of shell to restore 127 acres of oyster habitat in the Piankatank. The Virginia Marine Resources Commission also deployed more than 12,000 tons of rock and 14,000 bushels of shell to restore 24 acres of oyster habitat in the Great Wicomico River.
The Virginia Marine Resources Commission set a record this year with 100 acres for the most oyster reef acres restored in a single year. The Piankatank River oyster restoration effort is the largest restoration project that has been completed in the country.
“We can all be grateful for Governor Northam’s historic investment in oyster restoration efforts across the Chesapeake Bay,” said Secretary of Natural and Historic Resources Ann Jennings. “Thanks to his leadership and committed partners, our goal to restore native oyster habitat in the Bay is a reality. This success also stems from a diligent, science-based plan and a coalition of dedicated partners. The continuing improvement in water quality and an increasing number of oysters in these rivers shows what we can do when we all work together as partners.”
The Commonwealth worked collaboratively on oyster restoration with federal, non-profit, and shellfish industry partners including the Chesapeake Bay Foundation, the Elizabeth River Project, Lynnhaven River Now, the National Oceanic and Atmospheric Administration, the Nature Conservancy, U.S. Army Corps of Engineers, Virginia Commonwealth University, the Virginia Institute of Marine Science, and W.E. Kellum Seafood.
“These restored rivers will provide hundreds of acres of habitat for not just oysters but various other commercially and recreationally important fish and wildlife that depend on a thriving Chesapeake Bay including Virginia’s striped bass and blue crabs,” said Virginia Marine Resources Commissioner Steve Bowman. “What we have been able to accomplish will benefit Virginia for future generations to come.”
“The success of the Piankatank River oyster restoration project is a great testament to the positive benefits of environmental interest, Commonwealth of Virginia, and Federal partners working side by side with the Virginia oyster industry to enhance the sustainability of the oyster resource,” said Kellum Seafood Vice President Tommy Kellum. “The Virginia oyster industry is very proud to have been a part of this important effort.”
“Oysters are a keystone species in the Bay,” said Chesapeake Bay Foundation Virginia Executive Director Peggy Sanner. “Restoring oysters in Virginia’s rivers is an investment in clean water and healthy fisheries that will benefit our children and future generations. This dramatic progress is an important example of what can be achieved with successful partnerships among local, state, and federal agencies and other stakeholders. We are grateful for the leadership of Governor Northam and for the General Assembly’s long-standing bipartisan commitment to the Chesapeake Bay, which has made the success of oyster restoration on these rivers possible.”
“The Nature Conservancy engages in shellfish restoration around the world,” said The Nature Conservancy State Director Locke Ogens. “From Australia to Europe, our global shellfish restoration colleagues and partners look to the Chesapeake Bay as the model for how to get the large-scale restoration done, and done right.”
This milestone marks the third and fourth Chesapeake Bay tributaries in Virginia to reach the goal for full restoration of the oyster habitat as part of the 2014 Chesapeake Bay Watershed Agreement. Under the agreement, Virginia committed to restoring five tributaries. Recently Governor Northam added a sixth Bay tributary, the Eastern Branch of the Elizabeth, so Virginia will exceed its restoration agreement.
Governor Northam’s term has also seen improvements in striped bass numbers through tough limits on recreational and commercial fishing and a shift in the management of menhaden to the state’s fishery experts. In addition, Governor Northam’s leadership has ensured that climate change will be taken into consideration by the Virginia Marine Resources Commission’s Tidal Wetlands Protection Program and that living shorelines are now mandated as the preferred shoreline protection method.
Governor Northam is the chair of the Chesapeake Bay Executive Council. The Council will meet next on December 15.
Herring argues that Congress intended sentencing reform legislation to correct prior injustices, improve public safety, and save taxpayer money
RICHMOND (November 23, 2021) – Attorney General Mark R. Herring has joined a coalition of 17 attorneys general in urging the Supreme Court not to restrict the resentencing relief that individuals serving harsh sentences can seek under the First Step Act, landmark criminal justice reform legislation passed by Congress in 2018.
Attorney General Herring and his colleagues filed an 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. The coalition points to a universal consensus that the former federal sentencing regime, which disproportionately punished crack cocaine offenders over powder cocaine offenders, was unjust and had a disproportionate impact on communities of color. The brief also explains how state-level sentencing reforms analogous to the First Step Act have improved public safety and saved billions of dollars and contends that limiting the scope of the First Step Act would deprive both states and the federal government of similar benefits.
“The passage of the First Step Act helped to create a more fair, just, and equal criminal justice system in this country, and we must ensure that those reforms remain in place,” said Attorney General Herring. “When resentencing eligible Americans under the Act, it’s so important for courts to be able to consider intervening changes in the law or in the individual’s factual circumstances to make the most accurate and fair decision. My top priority will always be to ensure justice, equality, and opportunity in Commonwealth and around the country.”
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 percent 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. For example, in 2006, around 80% of those convicted of crack offenses were Black. In part because of dramatically harsher treatment of crack cocaine offenses, the average prison time for Black people convicted of drug offenses increased by more than 77% from 1994 to 2003, compared to an increase of less than 33% for white people convicted of drug offenses.
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 their amicus brief filed in Concepcion v. United States, 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 resentencing, 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.
Joining Attorney General Herring in filing the amicus brief are the attorneys general from Colorado, Colorado, Guam, Illinois, Iowa, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Vermont, Washington, and the District of Columbia.