Attorney General fixing crack/powder cocaine disparities, as Congress dithers

U.S. Attorney General Merrick Garland announced new policies on crack and powder cocaine charges, pleas, and sentencing in a memo that instructs prosecutors to end sentencing disparities that have been linked to racial discrimination.

Garland’s memo says that the policy that has led to disproportionate prison sentences for Black Americans compared to Whites is “simply not supported by science,” as there are “no significant pharmacological differences between the drugs.”

Garland’s directive triggered numerous supporters of the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act to call on the US Senate to put the measure, H.R. 1693, on the Senate floor for a vote. 

The EQUAL Act is bipartisan legislation that would eliminate the federal crack and powder cocaine sentencing disparity and provide retroactive relief to those already convicted and sentenced. 

In September, the House of Representatives overwhelmingly passed the legislation 361 to 66 with 143 Republican votes. 

The EQUAL Act is ready for consideration, and with 11 Republican cosponsors, it would likely clear the Senate’s 60-vote threshold.

Currently, a five-year mandatory sentence is triggered for possession of 28 grams of crack cocaine, while the same mandatory sentence for possession of powder cocaine requires 500 grams – a nearly 18 to 1 disparity.

In 2010, the Fair Sentencing Act reduced the sentencing disparity from 100 to 1, and in 2018 the First Step Act made that reduction retroactive.

According to the US Sentencing Commission, 77.1 percent of crack cocaine trafficking offenders were Black, 15.9% were Hispanic, 6.3% were White, and 0.7% were other races.

“The sentencing disparity between crack and powder cocaine has just one single purpose: to put Black Americans in jail. That’s it,” said NAACP President Derrick Johnson. “There is no scientific justification for prosecuting and sentencing crack and powder offenses differently. It does not make our communities safer and has simply been used as a tool to lock our community up in jail in the failed War on Drugs.”

“This is a big win and a historic step in the right direction toward eliminating the unjust disparity between crack and powder cocaine sentencing,” said Maya Wiley, president of the Leadership Conference on Civil and Human Rights. “The crack/powder disparity created a harmful and racially discriminatory sentencing scheme that continues to target and criminalize Black and Brown communities. “We commend Attorney General Garland for addressing this wrong, and we are proud to support him.”

“We strongly urge Congress to take bold steps to transform our criminal-legal system. Congress needs to pass the EQUAL Act now to provide retroactive relief and finally eliminate the crack/powder sentencing disparity once and for all,” said Wiley.

The EQUAL Act would counteract the Anti-Drug Abuse Act of 1986, a strict drug policy that has incarcerated thousands of people of color, specifically Black people, for decades or for life for crack-related offenses.

“The current disparity is not based on evidence yet has caused significant harm for decades, particularly for individuals, families and communities of color,” said Regina LaBelle, the acting director of the Office of National Drug Control Policy, in testimony before the Senate Judiciary Committee on Tuesday, June 22, 2021. “The continuation of the sentencing disparity is a significant injustice in our legal system. And it’s past time for it to end.”

“It is fundamentally unjust that, for decades, baseless and unscientific sentencing disparities between crack and powder cocaine have contributed to the explosion of mass incarceration in the United States,” said U.S. Senator Cory Booker. “Today’s announcement recognizes this injustice and takes steps to finally strike parity between powder and crack cocaine sentences when there is no pharmacological differences in the substances.”

Senator Cory Booker; Maya Wiley, president of the Leadership Conference on Civil and Human Rights; NAACP president Derrick Johnson; Lisa McCormick each offered comments on the Attorney Generals’ directive and the proposed EQUAL Act awaiting action by the US Senate.

“But this is not a permanent answer and won’t help those already serving an unjust sentence,” said Booker. “I have worked tirelessly to secure a filibuster-proof majority in the Senate for the EQUAL Act and build a bipartisan coalition including 11 Republican senators who support a 1:1 sentencing ratio. We must pass the EQUAL Act now to write this policy change into law, following the lead of 41 states that have already done so.”

Senate Majority Leader Charles E. Schumer has promised to bring the measure up for a vote but so far, he has failed to fulfill that promise.

“Congress must send to President Biden as soon as possible the EQUAL Act, federal legislation to end one of the worst vestiges of injustice in America’s drug policy,” said Lisa McCormick. “The support for the bill exceeds 70 percent of Americans across the ideological spectrum, with majorities of Republican and strong conservative voters voicing support, according to various public opinion polls. There is no reason for this bill to languish when it should have a real impact on liberty and justice.” 

McCormick—who earned nearly four out of ten votes in the 2018 Democratic primary for the US Senate—said she is disappointed that her rival, Sen. Robert Menendez, is not among the Democrats who have co-sponsored the bill.

Along with Booker, the measure is co-sponsored by Democrats Sens. Tammy Baldwin, Christopher Coons, Richard Durbin, Tim Kaine, Patrick Leahy, Joe Manchin III, Edward Markey, Jon Ossoff, Alex Padilla, and Charles Schumer.

Republican co-sponsors include Sens. Roy Blunt, Richard Burr, Shelley Moore Capito, Susan Collins, Lindsey Graham, Cynthia Lummis, Jerry Moran, Lisa Murkowski, Rand Paul, Rob Portman, and Thomas Tillis.

This landmark legislation has support from groups across the political spectrum, including the National District Attorneys Association, Major Cities Chiefs Association, Association of Prosecuting Attorneys, American Civil Liberties Union, Americans for Tax Reform, Innocence Project, Center for American Progress, Prison Fellowship, Dream Corps JUSTICE, National Association of Criminal Defense Lawyers, Due Process Institute, Drug Policy Alliance.

Also among its supporting organizations are Americans for Prosperity, National Legal Aid & Defender Association, FAMM, Catholic Prison Ministries Coalition, Digital Liberty, Faith and Freedom Coalition, ALEC Action, R Street Institute, National Association for Public Defense, Sentencing Project, Fair Trials, FreedomWorks, Jesuit Conference, Black Public Defender Association, Federal Public and Community Defenders, Taxpayers Protection Alliance, and Tzedek Association.

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