Apr 7, 2022 - Politics & Policy

Congress closes in on cocaine sentencing disparity

Illustration of a pile of powder cocaine in the pattern of an unequal symbol being blown away.
Illustration: Aïda Amer/Axios

Congress is on the cusp of eliminating the federal sentencing disparity between crack and powder cocaine crimes, which has led to the disproportionate incarceration of Black people — and whose elimination would free thousands from prison.

Why it matters: Republican receptiveness to this targeted legislation is an indication of the potential for bipartisan criminal justice reform, despite the GOP's law-and-order posture and "tough-on-crime" rhetoric.

Driving the news: On Monday, Sen. Roy Blunt (R-Mo.) became the 11th Republican to sign onto the Senate bill — the EQUAL Act.

He joined a wide-ranging cast, from Sen. Cynthia Lummis (R-Wyo.) to Sen. Susan Collins (R-Maine).

  • Senate Majority Leader Chuck Schumer also met Tuesday with advocates and formerly incarcerated leaders, where he described the legislation as "a priority."

What we're watching: Schumer has given no indication of timing but told Axios last week he plans to bring the legislation to the floor.

The Congressional Black Caucus wrote to him and Sen. Dick Durbin (D-Ill.), chair of the Senate Judiciary Committee, on Tuesday to urge them to do so.

  • The House passed the bill last September, with significant Republican support.
  • President Biden has signaled he'd sign it into law, should it reach his desk.

How it happened: The legislation received early support from the law enforcement community, including chiefs of police departments.

Gov. Asa Hutchinson of Arkansas, a Republican, also proved crucial for building support within his party — including with Blunt.

Hutchinson led the U.S. Drug Enforcement Administration under President George W. Bush.

  • "It's time to review this problem and see if we can come to a conclusion," Blunt told Axios. "I think there's a growing effort to get that done."
  • "There was not a meeting we had [with a Republican lawmaker] that did not have a law-enforcement voice in the room," Holly Harris, president and executive director of the Justice Action Network, told Axios.
  • "Forty-one states treat crack and powder the same. So, in many of our meetings with Republicans who believe in states' rights, we say, 'Just look at your own state's policy, that's all we're asking,'" said Janos Marton, national director of Dream Corp Justice, a nonprofit that works to reduce the U.S. prison population.

The details: The EQUAL Act, short for Eliminating a Quantifiably Unjust Application of the Law, would apply retroactively.

That would allow thousands — including disproportionately Black men — who were sentenced for crack-related crimes to reduce their sentences and leave prison.

  • "I think it's a matter of fairness," Sen. Cory Booker (D-N.J.) told Axios. "I think Republicans at large really do care about fairness. And this is clearly the same chemical substance. It's almost like saying, 'You vape marijuana and somebody else smokes it, and you should have 18 times more the penalty.'"

The big picture: The 100-to-1 disparity between the amount of powder and crack cocaine that triggers a federal mandatory minimum sentence — created by the 1986 Anti-Drug Abuse Act — has been diluted in recent years.

  • The 2010 Fair Sentencing Act lowered the disparity from 18-to-1, and the 2018 First Step Act made that reform retroactive.

Between the lines: Though then-Sen. Joe Biden (D-Del.) co-sponsored the 1986 bill creating the disparity, President Biden has since supported efforts to reverse the policy.

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