Coalition Letters

R Street Joins Diverse Coalition in Support of the EQUAL Act

April 12, 2021

issues: Alternatives to Arrest, Criminal Justice and Civil Liberties, Federal Government Affairs, Governance, Policing, Pretrial, Prison Reform, Prosecution, Reentry, Sentencing

Dear Chairman Durbin, Ranking Member Grassley, Chairman Nadler, and Ranking Member Jordan,

We, the undersigned organizations, write in strong support of the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act. S. 79 and H.R. 1693, introduced by Sens. Cory Booker (D-NJ) and Dick Durbin (DIL) and Reps. Hakeem Jeffries (D-NY), Bobby Scott (D-VA), Kelly Armstrong (R-ND), and Don Bacon (R-NE). The EQUAL Act would end the federal prison sentence disparity between crack cocaine and powdered cocaine offenses—an idea that may have been well-intentioned in 1986, but we know now is not grounded in evidence and contributes to overincarceration, particularly within communities of color.

In 1986, Congress created a drastic sentencing disparity between the treatment of crack cocaine offenses and powdered cocaine offenses—despite the fact that these substances are two forms of the same drug and one is no more harmful than the other. As a result of that law, five grams of crack cocaine carried the same mandatory minimum prison sentence as 500 grams of powdered cocaine—an extreme 100-to-1 disparity.

This inconsistent approach did not curb the use or sale of crack cocaine, but it did create obvious and harmful racial disparities. According to United States Sentencing Commission data, 85.8 percent of those who were sentenced for federal crack cocaine offenses were Black in FY1996. Four years after enactment of the disparity, the average federal drug sentence for Black defendants was 49 percent higher than the average for White defendants. Moreover, as the United States Sentencing Commission pointed out, even the perception of “improper racial disparity fosters disrespect for and lack of confidence in the criminal justice system” in marginalized communities, weakening the legitimacy law enforcement and the judiciary rely on in their public service.

Congress has already taken bipartisan action to partially address this injustice. In 2010, Congress passed the Fair Sentencing Act, which reduced the disparity from 100-to-1 to 18-to-1, but only applied the reform to pending and future cases. Section 404 of the First Step Act of 2018 finally made this change retroactive. Of the 2,377 people who received retroactive relief under Section 404 of the First Step Act, 91.6 percent were Black.5 Included in this group was Matthew Charles, whose story of faith inspires resilience and whose pursuit of second chances inspires Americans from all walks of life.

However, now is the moment for Congress to complete this work. Enhanced mandatory minimums for crack cocaine still more acutely impact Black Americans. In FY2020, 76.8 percent of people sentenced for crack cocaine offenses were Black, 7 despite available data from around the same time showing that White Americans accounted for 70.2 percent of those who used crack cocaine in 2018. Over forty states work to keep our communities safe without treating crack cocaine and powder cocaine differently in their sentencing structures. By passing the EQUAL Act and reducing overincarceration in federal prisons, Congress would free up resources better directed to violence reduction strategies, support for crime survivors, and other proven public safety interventions for underserved communities.

The EQUAL Act would finally equalize the treatment of crack cocaine and powdered cocaine offenses. Importantly, the bill also makes this relief retroactive following individualized case review by federal courts in order to ensure the law has the ameliorative effect Congress intends. The EQUAL Act would not only advance consistent sentencing moving forward; it would address in some degree the unjust punishments of the past.

This critical bicameral bill corrects misguided policymaking from 35 years ago and would continue the important bipartisan progress Congress is making on creating more effective, more efficient, and more fair federal sentencing laws. We urge you and the members of your respective committees to take swift action in supporting and passing the EQUAL Act.

If you have any questions, please contact Jason Pye of the Due Process Institute at [email protected] or (202) 558-6686.

Sincerely,

ALEC Action

Federal Public and Community Defenders

American Civil Liberties Union

FreedomWorks

Americans for Prosperity

Innocence Project

Americans for Tax Reform

Jesuit Conference, Office of Justice and Ecology

Association of Prosecuting Attorneys

Justice Action Network