“NOW IS THE MOMENT FOR CONGRESS TO COMPLETE THIS WORK.”
Dozens of Criminal Justice Reform Groups from across Political Spectrum Call on Congress to Adopt Bipartisan EQUAL Act
Bill Would Build on Bipartisan Consensus of First Step Act, Eliminate Sentencing Disparity between Crack and Powder Cocaine
(Washington, D.C.) – This week, the Justice Action Network, Prison Fellowship, Due Process Institute, ALEC Action, National District Attorneys Association, and dozens of criminal justice organizations from across the political spectrum came together to urge Congress to adopt the EQUAL Act, bipartisan legislation that would eliminate the federal sentencing disparity between crack and powder cocaine offenses. Faith and Freedom Coalition’s Timothy Head and Patrick Purtill also wrote to the Chairmen and Ranking Members of the House and Senate Judiciary Committees in support of the legislation. The EQUAL Act is sponsored in the House by Representatives Hakeem Jeffries (D-NY), Cathy McMorris Rodgers (R-WA), Kelly Armstrong (R-ND), Bobby Scott (D-VA), Nancy Mace (R-SC), Don Bacon (R-NE), Steve Cohen (D-TN), and Van Taylor (R-TX); and in the Senate by Chairman Dick Durbin (D-IL) and Senator Cory Booker (D-NJ).
Inimai Chettiar, Federal Director of Justice Action Network:
“For 35 years, we have applied a sentencing standard that doesn’t make anyone safer and isn’t grounded in logic or science. It has severely and disproportionately affected communities of color and sent tens of thousands of Black and Brown men and women to prison for decades. Many are still there. We are grateful to the Republicans and Democrats who have reached across the aisle to address one of our nation’s most pressing problems. Bipartisan legislation – the Fair Sentencing Act and the First Step Act – helped reduce the impact of this sentencing disparity, and we hope the bipartisan EQUAL Act will end this injustice once and for all.”
Heather Rice Minus, Senior Vice President of Advocacy and Church Mobilization, Prison Fellowship:
"Not only is this a moral issue, there is no sound scientific reason or public safety justification for punishing powder and cocaine offenses differently. More than 40 states already treat crack and powder cocaine equally in their sentencing schemes. As demonstrated by the diverse groups represented on this letter and the bipartisan cosponsors of the legislation, it's long overdue for the federal government to right this wrong."
Shana O’Toole, Founder and President, Due Process Institute:
"It's past time for Congress to bring an end to the unfair, unscientific, racially disparate treatment between prison sentences for crack cocaine offenses versus sentences for powder cocaine offenses. Congress quickly adopted these harsher penalties decades ago without a significant amount of examination. We now have considerable data of the unintended consequences for communities of color and our country’s views on addressing drug use and drug addiction have significantly evolved since this unequal treatment was first adopted. The EQUAL Act, which will treat crack cocaine and powder cocaine offenses equally under our sentencing laws, is rapidly gaining support from both sides of the aisle in Congress, and as this letter shows, there is strong bipartisan support from a diverse group of policy experts. We are relieved to see Congress willing to correct the mistakes of the past and urge that the EQUAL Act be passed as soon as possible.”
Kyle O’Dowd, Associate Executive Director for Policy, National Association of Criminal Defense Lawyers:
“The crack-powder cocaine sentencing disparity has exacerbated the vast racial disparities in the criminal legal system and continues to do so every day that it is in effect. There is neither scientific nor public safety evidence to support disparate sentences for what are now recognized as chemically-identical forms of the same drug. The path forward is clear: Congress must pass the EQUAL Act and finally repeal this unjust sentencing law.”
In 1986, Congress adopted a 100:1 sentencing disparity for offenses related to crack and powder cocaine, despite the fact that both are forms of the same drug and neither has been shown to be more dangerous than the other. This injustice largely affected Black Americans, who accounted for 85.8% of those arrested for crack offenses in FY 1996.
Lawmakers have since reduced the disparity to 18:1 through the Fair Sentencing Act of 2010 and applied the new ratio retroactively through the 2018 First Step Act. Despite these reforms, the sentencing disparity continues to unfairly impact Black communities: 76.8% of people sentenced for crack cocaine offenses in FY 2020 were Black.
*The Full Letter and List of Organizations Is Available at THIS LINK and Below*
April 12, 2021
The Honorable Dick Durbin
The Honorable Jerrold Nadler
The Honorable Chuck Grassley
The Honorable Jim Jordan
Re: EQUAL Act, S. 79 and H.R. 1693
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 (D- IL) 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.1 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 FY1996.2 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.3 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.4
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.6
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 2018.8 Over forty states work to keep our communities safe without treating crack cocaine and powder cocaine differently in their sentencing structures.9 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.10
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 Jason@iDueProcess.org or (202) 558-6686.
Sincerely,
ALEC Action
American Civil Liberties Union
Americans for Prosperity
Americans for Tax Reform
Association of Prosecuting Attorneys
Black Public Defender Association
Catholic Prison Ministries Coalition
Center for American Progress
Digital Liberty
Dream Corps JUSTICE
Drug Policy Alliance
Due Process Institute
FAMM
Fair Trials
Federal Public and Community Defenders
FreedomWorks
Innocence Project
Jesuit Conference, Office of Justice and Ecology
Justice Action Network
National Association for Public Defense
National Association of Criminal Defense Lawyers
National District Attorneys Association
National Legal Aid & Defender Association
Prison Fellowship
R Street Institute
The Sentencing Project
Taxpayers Protection Alliance
Tzedek Association
1 Dorothy K. Hatsukami, PhD and Marian W. Fischman, PhD, Crack Cocaine and Cocaine Hydrochloride: Are the Differences Myth or Reality?, JAMA, November 1996 https://jamanetwork.com/journals/jama/article-abstract/410806.
2 U.S. Sentencing Commission, 1996 Annual Report (Race of Drug Defendant by Drug Type, Table 29), 1996, available at https://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-sourcebooks/1996/TAB-29_0.pdf.
3 Kevin Ring and Heather Rice-Minus, Why do we still punish crack and powder cocaine offenses differently?, The Hill (March 3, 2021), available at https://thehill.com/opinion/criminal-justice/540816-why-do-we-still-punish-crack-and-powder-cocaine-offenses-differently.
4 U.S. Sentencing Commission, Report to the Congress: Cocaine and Federal Sentencing Policy, 2002, available at https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/drug-topics/200205-rtc-cocaine-sentencing- policy/200205_Cocaine_and_Federal_Sentencing_Policy.pdf.
5 U.S. Sentencing Commission, The First Step Act of 2018: One Year of Implementation, October 2020, available at https://www.ussc.gov/sites/default/files/pdf/research-and-publications/retroactivity-analyses/first-step-act/20201019-First-Step-Act-Retro.pdf.
6 Maria Mallory White, The Faith of Matthew Charles: The Incredible Story of a Prisoner Who Garnered a Nation’s Support, Prison Fellowship, August 2019, available at https://www.prisonfellowship.org/2019/08/the-faith-of-matthew-charles-prisoner-who-garnered-a-nations-support/.
7 U.S. Sentencing Commission, FY 2020 Sourcebook of Federal Sentencing Statistics (Race of Drug Trafficking Offenders, Table D-2), 2020, available at https://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-sourcebooks/2020/TableD2.pdf.
8 Substance Abuse and Mental Health Services Administration, Results from the 2018 National Survey on Drug Use and Health: Detailed Tables (Crack Use in Lifetime among Persons Aged 12 or Older, by Age Group and Demographic Characteristics, Table 1.31A), June 2020, available at https://www.samhsa.gov/data/sites/default/files/cbhsq-reports/NSDUHDetailedTabs2018R2/NSDUHDetailedTabs2018.pdf.
9 FAMM, Crack Cocaine Disparity in the States, February 17, 2021, available at
https://famm.org/wp-content/uploads/Crack-Disparity-in-the-States.pdf.
10 Thomas Abt, Bleeding Out: The Devastating Consequences of Urban Violence--and a Bold New Plan for Peace in the Streets, Basic Books, 2019.