Since the 1980s, there has been a wide disparity in the sentencing of crack and powder cocaine offenses under federal law: Convictions involving 28 grams of crack cocaine trigger the same mandatory minimum prison sentence as 500 grams of powder cocaine, despite their being two forms of the same drug.
Recognizing that treating crack and powder differently in the law is inexplicable and fundamentally unjust, Congress reduced this disparity in 2010, but there is finally bipartisan appetite for eliminating it.
The harsher treatment of crack cocaine dates back to 1986 and the passage of the Anti-Drug Abuse Act. This bill established mandatory five-year minimum sentences for 5 grams of crack cocaine and 500 grams of powder cocaine — a 100-to-1 ratio. The policy was prompted by sensationalist media coverage about crack cocaine — including celebrity incidents such as the death of college basketball star Len Bias (who, contrary to initial media coverage, overdosed on powder cocaine, not crack) — and unrelated rising violent crime rates in urban areas.
One of the most troubling aspects of the disparity is the fact that prosecution rates for crack and powder cocaine vary widely along racial lines. Data from the U.S. Sentencing Commission show that between 76.8% and 85.8% of individuals sentenced under federal law for crack cocaine offenses each year since fiscal year 1996 were black, while between 5.7% and 20.7% of those sentenced for powder cocaine were white. And, again, these are two forms of the same drug, which, in crack form, is used at similar rates among white and black Americans, according to recent data from the Substance Abuse and Mental Health Services Administration.
The unfairness of the original sentencing disparity was ultimately recognized by many on both sides of the aisle, and in 2010, Congress passed the Fair Sentencing Act to reduce the 100-to-1 sentencing disparity to 18-to-1. In fact, the Fair Sentencing Act was so uncontroversial that it passed the Senate by unanimous consent and the House by a voice vote. Although the Fair Sentencing Act initially applied only to pending and future cases, Congress subsequently made it retroactive in the First Step Act — a major domestic policy achievement of President Donald Trump.
Although the reduction of this drug sentencing disparity over a decade ago was an important step, it’s now time to eliminate it altogether.
The EQUAL Act, H.R. 1693 and S. 79, would accomplish this and would also apply the change retroactively so that people who were sentenced under the previous sentencing regime could request that a federal judge revise their sentence.
The EQUAL Act has nearly 50 bipartisan co-sponsors in the House, including members from all corners of the Republican Conference, from Reps. Kelly Armstrong of North Dakota and Thomas Massie of Kentucky to Cathy McMorris Rodgers of Washington and Louie Gohmert of Texas. At the House Judiciary Committee markup, the bill was also supported by a majority of the Republican members, including ranking member Jim Jordan of Ohio. The Senate version of the EQUAL Act also boasts bipartisan support and is co-sponsored by Sens. Rob Portman of Ohio, Rand Paul of Kentucky, and Thom Tillis of North Carolina.
Not only is there strong Republican support for the EQUAL Act, but the bill has also been endorsed by law enforcement groups such as the Association of Prosecuting Attorneys, the Major Cities Chiefs Association, and the National District Attorneys Association. Arkansas Gov. Asa Hutchinson also testified in support of eliminating the disparity this year, which is notable not only because Arkansas has eliminated its own disparity but also because Hutchinson is a former federal prosecutor and served as the head administrator of the Drug Enforcement Agency under President George W. Bush.
The sentencing disparity between crack cocaine and powder cocaine is irrational and unjustifiable. Eliminating it represents a unique area of bipartisan consensus at a time when bitter partisanship is preventing Congress from doing much else. Let’s hope Congress decides to focus its attention on passing the EQUAL Act this fall — before the election cycle makes bipartisan cooperation on any subject nearly impossible. Republicans and Democrats agree that it’s imperative we restore some much-needed fairness to our federal drug sentencing laws.
Jason Pye is the director of Rule of Law Initiatives for Due Process Institute, a bipartisan nonprofit organization that works to honor, preserve, and restore principles of fairness in the criminal legal system.
