The Biden administration endorsed legislation today that would finally end the federal sentencing disparity between crack and powder cocaine offenses, and close the book on one of the most destructive parts of Joe Biden's legacy as a senator.
Then-Sen. Biden (D–Del.) co-sponsored the Anti-Drug Abuse Act of 1986. That law imposed mandatory minimum sentences for drug offenders and created a 100-to-1 sentencing disparity between crack and powder cocaine. In later years, under pressure from activists and criminal justice advocates who cited the wide racial disparities and massive sentences that resulted, Biden reversed his stance. Part of his 2020 campaign platform included ending the disparity.
Regina LaBelle, acting director of the White House Office of National Drug Control Policy, said in prepared remarks at a Senate Judiciary Committee hearing today that the Biden administration "strongly supports" eliminating the sentencing disparity between crack and powder cocaine.
"The current disparity is not based on evidence yet has caused significant harm for decades, particularly to individuals, families, and communities of color," LaBelle said. "The continuation of this sentencing disparity is a significant injustice in our legal system, and it is past time for it to end."
The Senate Judiciary Committee was considering the EQUAL Act, a bill sponsored by Senate Majority Whip Dick Durbin (D–Ill.), Sen. Cory Booker (D–N.J.), and Sen. Rob Portman (R–Ohio) that would erase the sentencing disparity.
The Anti-Drug Abuse Act was one of the most disastrous laws passed in the 1980s by lawmakers posturing as tough-on-crime. It imposed substantially heavier penalties against federal crack offenders, who were predominantly black, than powder cocaine offenders, despite there being little to no pharmacological difference between the two substances. The result was that someone with a small amount of crack cocaine would receive the same sentence as someone with 100 times as much powder cocaine. The U.S. Sentencing Commission reported that black people made up nearly 77 percent of all federal crack convictions in fiscal year 2020.
Criminal justice advocates lobbied for more than a decade to roll back the law. In 2007, Biden endorsed legislation that would have completely eliminated the disparity. A compromise bill, the Fair Sentencing Act of 2010, reduced it from 100-to-1 to 18-to-1, but did not erase it.
In 2018, the FIRST Step Act made the Fair Sentencing Act's reductions retroactive, leading to the release of roughly 3,000 federal crack offenders.
Among those who testified in favor of the EQUAL Act today was Matthew Charles, who was sentenced in 1995 to 35 years in federal prison for a crack cocaine offense.
"If crack and powder were treated the same, my sentence could have been 15 years, not 35," Charles said at the hearing. "But the 100-to-1 disparity was in place at that time, and I honestly didn't seem like someone who deserved a break."
Inside prison, Charles found religion, turned around his life, and became a model inmate. He was released in 2016 after successfully petitioning for a sentence reduction. However, a federal appeals court ruled that, as a career offender, he was ineligible for a sentence reduction and should have never been released. Two years after he began piecing his life back together, Charles was sent back to federal prison.
But Charles was freed again in 2019—one of the first federal inmates to benefit from the First Step Act. He is now a criminal justice reform advocate.
"The Fair Sentencing Act might have been the best political compromise Congress could have reached 11 years ago, but the unfairness it sought to address remains," Charles said.
Others who testified in favor of the legislation included Republican Arkansas Gov. Asa Hutchinson, who is also the former head of the Drug Enforcement Administration, and Russell Coleman, a former federal prosecutor.
However, not all Republicans are on board. Sen. Tom Cotton (R–Ark.), one of the staunchest supporters of mandatory minimum sentencing laws in Congress, suggested erasing the disparity by raising the sentences for powder cocaine:
Crack penalties are harsher than powder cocaine penalties.
Let's fix this by increasing the penalty for selling powder cocaine.
Not by letting drug traffickers out of prison.
— Tom Cotton (@TomCottonAR) June 22, 2021
Fortunately, support for the sort of laws that put Charles and countless other offenders behind bars for decades has dried up, and sentiments like Cotton's are no longer greeted by bipartisan applause.