On September 28, the US House of Representatives approved a bill to make punishments for federal crack cocaine charges the same as those for powder cocaine. If signed into law, this would finally end a 35-year federal drug policy that punished crack cocaine far more severely, resulting in decades of racist enforcement against Black Americans. Ironically, the person whose pen may finally end this injustice was instrumental in creating it: President Joe Biden.
The House approved the EQUAL Act with a bipartisan majority of 361-66. The bill reduces federal criminal penalties for crack, bringing them in line with those for powder cocaine; it would also make anyone who has previously received a federal sentence for crack eligible for re-sentencing.
“The person has to file a motion in federal court,” Molly Gill, vice president of policy for the nonprofit Families Against Mandatory Minimums, told Filter. “It can be opposed by the US Attorney’s office. Essentially it says, ‘I am entitled to a new sentence because of this retroactive change in the law’. And the court looks at all the factors to decide whether to give the person the benefit of the change in law—the primary one is public safety.”
“We could see people going home years earlier,” she added, “or just a few months or weeks earlier.”
Amid racist fearmongering from politicians and media, crack cocaine captured the public imagination in the early 1980s. In 1986, Senator Joe Biden authored—and President Reagan approved—the Anti-Drug Abuse Act. This created a 100:1 sentencing disparity between crack and powder cocaine. Someone caught with a gram of crack—which is simply cocaine cooked with baking soda to produce a form of the drug with a faster-acting high—would be charged as if it were 100 grams of powder cocaine. Obviously, this translated to far heavier prison sentences.
The racist impact on Black Americans has been profound. The majority of crack users are white. But in 2015, nearly nine out of 10 people in federal prison for crack were Black. The average sentence was 14 years.
Twenty-four years after the Anti-Drug Abuse Act, President Obama had reformed the law with the Fair Sentencing Act of 2010. This reduced the disparity to 18:1—still a huge disparity. Eight years later, the First Step Act of 2018 was passed under President Trump. Among many provisions, this law made Obama’s crack reforms retroactive, meaning people sentenced for crack before 2010, under the 1986 law, could apply to have their sentences reduced.
“If Congress wants to advance racial justice and criminal justice reform this session, the EQUAL Act is the most obvious bill.”
But many people sentenced for low-level crack convictions remained ineligible for any relief under Trump’s reform. In June, the US Supreme Court ruled that, in cases where a judge sentenced someone for crack without relying on the older mandatory minimum guidelines, they cannot have their sentence reduced. In other words, if a judge used their own discretion in sentencing, the convicted person gets no relief.
Since his presidential campaign, Biden has vowed to end the crack sentencing disparity. The White House even testified to Congress in June in support of the EQUAL Act. The bill now heads to the Senate, where it faces the last hurdle before Biden can make good on his promise.
Gill explained that the bill would ideally receive bipartisan approval from the Senate Judiciary Committee before getting a full vote. Currently, Committee Chair Sen. Dick Durbin (D-IL) supports it, but Ranking Member Sen. Chuck Grassley (R-IA) has not yet endorsed it.
Grassley has suggested that Senate Republicans won’t back the reform, stating to a group of Iowa reporters, “I don’t think one-to-one can pass.” He seemed to imply that if Democrats try to pass the Equal Act, the Senate won’t pass any other criminal justice reform this session.
“You don’t want to be on the wrong side of history on this vote,” Gill said. “If people in Congress want to advance racial justice and criminal justice reform this session, the EQUAL Act is the most obvious bill that accomplishes both those goals.”
Photograph via Drug Enforcement Agency