A once-promising bipartisan bill to erase the sentencing disparity between crack and powder cocaine failed to make it into a year-end omnibus spending bill winding through Congress, likely dooming efforts to pass crack cocaine sentencing reform for yet another legislative session.
Criminal justice advocates have been working for decades to roll back draconian crack cocaine laws passed by Congress in the 1980s. Those laws set the penalties for crack cocaine offenses at 100 times greater than equivalent powder cocaine offenses, which resulted in monstrously long and racially disparate sentences. In 2010 Congress passed a law reducing the sentencing ratio to 18–1, and advocates hoped to finally erase it once and for all this legislative session with the passage of the EQUAL Act.
The EQUAL Act would have reduced the penalties for federal crack cocaine offenses to the same level as those for powder cocaine offenses, and it would have made those changes retroactive, meaning federal crack offenders currently serving prison sentences would be eligible to have their sentences reduced. The EQUAL Act passed the House by a wide, bipartisan margin last year, raising hopes that it might move relatively smoothly through the Senate, where it collected a bipartisan group of co-sponsors that included Majority Leader Chuck Schumer (D–N.Y.) and 11 Republicans.
But the bill never made it to the Senate floor. Its last hope was being jammed into the giant end-of-year spending bill. Reuters reported Friday that Senate negotiators had reached a potential compromise to appease Republicans. The compromise language would have reduced the sentencing disparity to 2.5–1, and would not have been retroactive. However, when the text of the 4,000-page, $1.7 trillion spending bill was released, the watered-down EQUAL Act was nowhere to be found.
Criminal justice advocacy groups were deeply disappointed to see the bill stumble with the finish line in sight.
"It is a searing indictment of a broken Beltway when a bill that passed the House with an overwhelming bipartisan vote, endorsed by law enforcement and civil rights leaders alike, with 11 Republican co-sponsors and filibuster-proof majority support in the Senate, and an agreement between the relevant committee Chairman and Ranking Member for inclusion in the end-of-year package, fails to make it to the President's desk," Holly Harris, president and executive director of the Justice Action Network, said in a press statement. "The American people deserve better."
It's unclear exactly why the deal was scuttled. Sen. Chuck Grassley (R–Iowa) pointed to the memo issued Friday by Attorney General Merrick Garland ordering federal prosecutors to effectively end the sentencing disparity through their charging decisions.
"That hard-won compromise has been jeopardized because the attorney general inappropriately took lawmaking into his own hands," Grassley told Reuters yesterday.
Sen. Tom Cotton (R–Ark.), one of the staunchest opponents of sentencing reform in the Senate, was also vocally opposed to the legislation. Cotton in fact introduced his own legislation last year to fix the sentencing disparity—by raising the penalties for powder cocaine offenses.
"If they want to eliminate the differences between the sentences, I'm perfectly willing to do that. But my proposal's a little different from theirs. They want to take down offenses for crack cocaine, I'm perfectly willing to increase sentences for powdered cocaine," Cotton said.
Cotton's position has fallen out of favor over the years, as more and more stories of people trapped under harsh mandatory minimum sentences have piled up. Take for example the case of Matthew Charles. Although he had a serious criminal record prior to his sentencing, Charles became a model inmate. He was a GED instructor and law clerk, he helped illiterate inmates decipher court documents, and he served his time without a single disciplinary infraction. Charles was released early from a 35-year mandatory minimum sentence for a crack cocaine offense because of the First Step Act of 2018, which retroactively applied the 2010 sentencing reductions.
Kevin Ring, the president of the criminal justice advocacy nonprofit FAMM, which opposes mandatory minimum sentences, called the failure to pass the EQUAL Act "shameful" and "sickening."
"Congress heard from families who have suffered the most because of this racist and indefensible disparity—and then chose to leave those people behind," Ring said in a press release. "While members of Congress fly home to spend the holidays with their families, thousands of families now face the prospect of being separated for years or even decades longer than necessary—all because of the cowardice and incompetence of our elected leaders."