March 11, 2021–Due Process Institute supported today’s introduction of bipartisan bills in both the House and Senate that would finally end the sentencing disparity between crack and powder cocaine. Introduced by Senators Cory Booker (D-NJ) and Dick Durbin (D-IL) and Reps. Hakeem Jeffries (D-NY), Bobby Scott (D-VA), Kelly Armstrong (R-ND), and Don Bacon (R-NE), the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act, S. 79 and H.R. 1693, would equalize the treatment in sentencing between crack cocaine and powdered cocaine, reducing the ratio from 18:1 to 1:1. Importantly, the bipartisan EQUAL Act would make these changes retroactive upon a motion from the defendant, the Bureau of Prisons, or a federal prosecutor.
The disparity in sentencing between crack cocaine and powdered cocaine is currently one of the most unjust aspects of federal sentencing laws. Congress passed the Anti-Drug Abuse Act of 1986 to escalate the war on drugs by creating mandatory minimum sentences for drug offenses, including substantially harsher penalties for crack cocaine. The evidence that harsher penalties for crack cocaine have had a racially disparate outcome is overwhelming. According to the U.S. Sentencing Commission, 81.1 percent of individuals sentenced for crack cocaine in FY 2019 were Black while another 12.6 percent were Hispanic. Highlighting the racially disparate outcome again, 91.4 percent of individuals who received sentencing reductions as a result of the First Step Act’s retroactivity provision were Black. Although the data show a disproportionate incarceration outcome, a 2006 study published by the American Civil Liberties Union showed that Whites are actually more likely to use crack cocaine. Also, as the Center for Behavioral Health Statistics and Quality reported in the National Survey on Drug Use and Health, nearly 80 percent of respondents who reported usage of crack cocaine in their lifetime were White. The devastating racial disparities in federal sentencing can no longer be ignored by Congress. It is important that Republicans and Democrats work together to correct them in the name of justice.