Congress can finally support equal justice under the law
August is underway, which in Washington means a break from legislative activity in Congress. Members leaving town for the month also left a number of priorities predictably unaddressed for the nation, with yet another shutdown looming large. For new House Minority Leader Hakeem Jeffries (D-NY), one such loose end is righting the inequitable crack cocaine sentencing disparity, one of his longtime legislative priorities since before taking up the mantle in House leadership.
The EQUAL Act is just another example of Congress’s consistent failure to fulfill its basic duties and promises. This bipartisan, bicameral proposal would finally align federal sentencing policy with the supermajority of states that treat crack and powder cocaine, two chemically identical substances, equally in criminal penalties. Despite its overwhelming popularity as a stand-alone bill in past congresses, the EQUAL Act has been left out of the National Defense Authorization Act again this year, and it will have to wait until Congress comes back after recess.
When Congress reconvenes after Labor Day, the EQUAL Act should be a top priority. Alone, it would resolve nearly 30 years of legislative failure to address a disparity that the United States Sentencing Commission recommended eliminating in 1995. Especially now, as states have since borne out the research indicating that public safety is not adversely affected by shortening sentence lengths, Congress should follow in their footsteps and finally eliminate the disparity between crack and powder cocaine.
The current sentencing laws, established in haste following basketball star Len Bias’s death in 1986, have resulted in one of the most racially disparate impacts seen to date from an initial sentencing difference of 100-to-1 between crack and powder cocaine. This difference was fortunately reduced to 18-to-1 in 2010 by the Fair Sentencing Act, and that reduction was made retroactive in 2018 by the First Step Act. But such reductions are still not equal, and the effects of the existing inequity linger.
This disparity between crack and powder cocaine is not backed by science, which has since shown the two substances to be pharmacologically identical. Thanks to this disparity, as of 2019, black people made up 81% of the population incarcerated at the federal level for crack cocaine. As of the same year, 77% of those sentenced for selling crack were black, whereas whites made up only 6% of the same.
Furthermore, those who were released under the retroactivity offered by the First Step Act have recidivated, or been rearrested, at a rate almost four times less than the Bureau of Prisons’s reported average of 43%, proving that this massively harmful racial disparity continues with no measurable public safety benefit. In fact, it actually poses a significant public safety threat by way of misused resources and unnecessarily lengthy incarceration, coming only at the expense of taxpayers and worsened by years of congressional inaction.
Nearly a decade ago, in 2014, Sen. Rand Paul (R-KY) introduced the RESET Act, the first proposal that would have eliminated the disparity entirely. Since then, more Republican states and Republican legislators have jumped on board. The newer EQUAL Act has since gained bipartisan support in both chambers of Congress. Most recently, the heavily Republican Missouri passed a full elimination of the crack-cocaine disparity through its state legislature in the 2023 session.
When legislators come back to Washington after a recess in their home states, they should bring a little home-spun wisdom back with them, as most states sentence these two substances equally. Supported by supermajorities of voters from both parties and now even gaining traction with law enforcement, the EQUAL Act’s passage is long overdue.