Amid broader talks on criminal justice reform, lawmakers moved one step closer to eliminating the sentencing disparity between crack and powder cocaine offenses. In September, the House passed the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act (H.R. 1693), which would make the penalties for federal crack cocaine offenses equal to those of powder cocaine offenses. The bill would also apply those changes retroactively, so individuals currently serving prison sentences for crack cocaine offenses could be eligible to have their sentence times reduced.
The bill passed in the House by a bipartisan vote of 361-66, receiving unanimous support from Democrats. However, it is not as likely to receive the same kind of support in the Senate, where some Republicans are advocating to maintain the steeper sentencing penalty for crack cocaine offenses. Supporters of eliminating the disparity argue that the two types of cocaine are essentially the same, and the sentencing disparity is discriminatory as the vast majority of individuals serving sentences for crack cocaine sentences are Black. Meanwhile, opponents argue that crack cocaine leads to more serious consequences such as addiction and violent crime.
The sentencing disparity dates back to the “War on Drugs” in the 1980s, when Congress passed the Anti-Drug Abuse Act of 1986. That law established mandatory minimum sentences for drug trafficking offenses. The law also set up a 100-to-1 sentencing ratio for crack cocaine versus powder cocaine offenses. Thus, if an individual was convicted of selling 10 grams of crack cocaine, they were sentenced the same as someone who was convicted of selling 1,000 grams of powder cocaine.
That ratio was later reduced to 18-to-1 under the 2010 Fair Sentencing Act. Research has shown that the sentencing disparity negatively affects Black Americans; almost 90% of people serving time for drug trafficking offenses related to crack cocaine are Black.
“The EQUAL Act will help reverse engineer the tragic legacy of the failed war on drugs which has devastated lives, families and communities,” Rep. Hakeem Jeffries (D-N.Y.), a lead sponsor of the EQUAL Act, said in a statement. “Crack cocaine has historically been used in inner-city communities and powder cocaine in affluent neighborhoods and the suburbs. That does not justify the wide disparity in sentencing.”
Civil rights groups, including the American Civil Liberties Union (ACLU), have called on the Senate to act. “Congress should continue to work to end the war on drugs, including ending mandatory minimum sentences that disproportionately impact communities of color while failing to make us safer,” Aamra Ahmad, ACLU senior policy counsel, said in a statement.
President Joe Biden, who wrote the Anti-Drug Abuse Act of 1986, also demonstrated support for eliminating the sentencing disparity. In July 2021, the U.S. Justice Department submitted written testimony to the Senate Judiciary Committee highlighting the “unwarranted racial disparities” that have resulted from the disparate sentencing policies. The testimony also stated that the 1980s policy was misguided and “based on misinformation about the pharmacology of cocaine and its effects.”
The issue is also uniting some liberal and conservative advocacy groups. For example, the ACLU’s Ahmad and Jeremiah Mosteller, senior policy analyst for criminal justice at the conservative-leaning group Americans for Prosperity, co-wrote an op-ed calling for an end to the sentencing disparity given its “ineffectiveness.”
“The continued existence of this disparity between two forms of the same substance has devastated communities of color and Black families in particular and has failed to provide any public safety or public health benefit,” the two wrote. “Americans for Prosperity and the American Civil Liberties Union might not always see eye to eye on every political issue, but our organizations agree it is time to end this unjust sentencing framework.”
Many Senate Republicans, however, oppose the reform, especially if it interferes with a criminal justice reform package co-sponsored by Sen. Chuck Grassley (R-Iowa), the ranking Republican of the Senate Judiciary Committee. That package reduces the sentencing disparity, but Grassley has said that he doesn’t think a 1-to-1 ratio will pass. Grassley has said that several Judiciary Committee Republicans oppose the idea.
Some advocates of eliminating the disparity hope that a companion bill to the EQUAL Act, which currently has Republican co-sponsors, including Senate Judiciary Committee Chair Sen. Richard Durbin (R-Ill.), can pass.
For more background, see the January 2019 issue of Congressional Digest on “Criminal Justice Reform.”
