After 35 years, Congress should finally end the sentencing disparity between crack and powder cocaine

Thirty-five years ago today, while the country was still reeling from the tragic death of Len Bias -- a University of Maryland basketball star who, just days after being drafted by the Boston Celtics, died from a drug overdose -- Congress passed and President Reagan signed into law the Anti-Drug Abuse Act. . Assuming that the drug that killed Len was crack, Congress drafted a law that would impose harsher penalties on crack offenses. It would impose the same mandatory prison sentence for five grams of crack cocaine as 500 grams of powder cocaine. Even after it became known that the drug that killed Len was powder cocaine, not crack, the narrative had taken off that crack is more dangerous than powder, and Congress established the 100-to-1 disparity between crack and powder cocaine in federal law. 

Over the years, this sentencing disparity has become emblematic of both the ineffectiveness of reactionary criminal justice policy and the racial disparities existing in our criminal justice system. 

After years of work by advocates, in 2010, Congress decreased the sentencing disparity from 100-to-1 to 18-to-1 through the passage of the Fair Sentencing Act (FSA). But those who were sentenced before 2010 were left behind until Congress enacted and President TrumpDonald TrumpJury in Jussie Smollett trial begins deliberations Pence says he'll 'evaluate' any requests from Jan. 6 panel Biden's drug overdose strategy pushes treatment for some, prison for others MORE signed into law the FIRST STEP Act, which provided relief to people sentenced under the original disparity. These reforms were motivated by what we know now — this disparity between two chemically identical substances has done nothing to improve public safety or reduce drug use, but it does disproportionately harm communities of color.

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After the passage of the FIRST STEP Act and its provisions allowing individuals in federal prison to apply for resentencing, 3,705 people had their sentences reduced by approximately six years. The fact that 91 percent of those who received reductions were Black further proves the racially disproportionate impact of the crack laws.

But even after these bipartisan reforms, the disparate racial impact persists. In 2020, 77% of individuals convicted of crack cocaine offenses were Black, while historical data tells us that 66% of crack cocaine users have been white or Hispanic.

The continued existence of this disparity between two forms of the same substance has devastated communities of color and Black families in particular and has failed to provide any public safety or public health benefit. Americans for Prosperity and the American Civil Liberties Union might not always see eye to eye on every political issue, but our organizations agree it is time to end this unjust sentencing framework. 

The EQUAL Act is a common-sense reform that will end it once and for all. It has bipartisan support in both the U.S. House of Representatives and the U.S. Senate. By eliminating the sentencing disparity between crack and powder cocaine, we can make strides towards reducing over-incarceration in our federal prisons and free up resources that can be better spent on critical reentry services for those exiting federal prison and recovery resources for individuals struggling with a substance use disorder.

The EQUAL Act recently passed the House of Representatives with an overwhelming bipartisan vote of 361 to 66. It is rare to see Louie GohmertLouis (Louie) Buller GohmertCrenshaw slams House Freedom Caucus members as 'grifters,' 'performance artists' GOP Rep. Clyde racks up K in mask fines Jan. 6 organizers used burner phones to communicate with White House: report MORE (R-Texas), a former Texas judge and nationally-recognized staunch conservative, agree with Hakeem JeffriesHakeem Sekou JeffriesOn The Money — McConnell searches for debt deal votes Liberals ramp up pressure on Pelosi to discipline Boebert  Pelosi aiming to pass T social spending bill before Christmas MORE (D-N.Y.), one of the leading progressive voices in the leadership of the Democratic Party, on criminal justice reform, but that is just what happened on the House floor when they both spoke in support of the EQUAL Act. It is now up to the Senate to pass this long-overdue legislation and send the EQUAL Act to President BidenJoe BidenPharma lobby eyes parliamentarian Demand for US workers reaches historic high Biden to award Medal of Honor to three soldiers who fought in Iraq, Afghanistan: report MORE’s desk for his signature. Senators Cory BookerCory BookerMaternal and child health legislation must be prioritized now Poll: Harris, Michelle Obama lead for 2024 if Biden doesn't run Five reasons for Biden, GOP to be thankful this season MORE (D-N.J.), Dick DurbinDick DurbinDemocrats seek to avoid internal disputes over Russia and China Schumer steps on the gas to move Biden agenda Demand Justice launches ad campaign backing Biden nominee who drew GOP pushback MORE (D-Ill.), Rob PortmanRobert (Rob) Jones PortmanGOP working to lock down votes on McConnell debt deal Hillicon Valley — Presented by Connected Commerce Council — Incident reporting language left out of package Language requiring companies to report cyberattacks left out of defense bill MORE (R-Ohio), Thom TillisThomas (Thom) Roland TillisGOP working to lock down votes on McConnell debt deal GOP blocks bill to expand gun background checks after Michigan school shooting Overnight Defense & National Security — A new plan to treat Marines 'like human beings' MORE (R-N.C.), Rand PaulRandal (Rand) Howard PaulMajor utilities agree to stop sharing data with ICE Senate rejects attempt to block Biden's Saudi arms sale Overnight Defense & National Security — Lawmakers clinch deal on defense bill MORE (R-Ky.), and Patrick LeahyPatrick Joseph LeahyVermont Lt. Gov. launches bid for US House Lawmakers remember Bob Dole: 'Bona fide American hero' Biden signs four bills aimed at helping veterans MORE (D-Vt.), and Lindsey GrahamLindsey Olin GrahamMcConnell faces GOP pushback on debt deal Bottom line GOP senators introduce bill targeting Palestinian 'martyr payments' MORE (R-S.C.) are the sponsors of the Senate companion legislation (S. 79) and have taken the lead in building a coalition to pass this legislation during the 117th Congress. The time is now for the Senate to take action and rectify this long-standing injustice in our criminal legal system.

Aamra Ahmad is the Senior Policy Counsel for the American Civil Liberties Union’s Justice Division. Jeremiah Mosteller is the Senior Policy Analyst for Criminal Justice at Americans for Prosperity.