Congress set to tackle crack, powder cocaine sentencing disparity before year’s end

Lawmakers are making a last-ditch push to pass legislation that seeks to reduce — but not entirely erase — sentencing disparities for crack and powder cocaine offenses before the year is finished.

Senate Democrats are expressing optimism about chances to pass legislation aimed at significantly reducing the gap in federal sentencing disparities for the offenses as part of a larger omnibus funding package leaders are hopeful will pass next week. 

“We’re making good progress on the EQUAL Act,” Senate Majority Leader Charles Schumer (D-N.Y.) told The Hill on late Thursday, referring to the Eliminating a Quantifiably Unjust Application of the Law act, a bill the Democratic-led House passed last year that sought to erase the disparity.  

He also said lawmakers are “feeling quite good about” chances of using the omnibus, which is set to be unveiled in the coming days, as a vehicle. But the push could have a long road ahead next week amid resistance from Republicans.

Over the years, the nation has seen glaring racial disparities in how Americans convicted of crack and powder cocaine offenses are treated under the law.  

Currently, an individual can be sentenced under federal law to at least five years behind bars for possession of 500 grams of powder cocaine, and 10 years for possessing 5 kilograms. By contrast, individuals found to have possessed 28 grams of crack cocaine can be subjected to five-year sentences as a mandatory minimum under the same rulebook, and 10 years for 280 grams. 

“So, the quantity of powder cocaine that you need to trigger a mandatory minimum is 18 times higher than the amount of crack cocaine needed to trigger the same mandatory minimum,” Liz Komar, sentencing reform counsel for The Sentencing Project, told The Hill. 

The 18-to-1 ratio has stood in federal law since 2010, when Congress passed the Fair Sentencing Act. The ratio had previously been 100-to-1, after then-President Reagan enacted the Anti-Drug Abuse Act of 1986 amid the nation’s so-called “War on Drugs.” Years of research since then has documented the disproportionate toll carried by Black and Hispanic Americans convicted of drug charges.  

Under the EQUAL Act, that gap would shrink from 18-to-1 to 1-to-1 — a change that advocates and officials have pushed for, while citing evidence that shows the similarities between both crack and powder cocaine. 

“I have been fighting for my entire Senate career to get to be one to one,” Sen. Cory Booker (D-N.J.), a key negotiator in talks who filed a Senate-version of the bill last year, told The Hill. “It is substantively the same.” 

The GOP point of view and potential changes 

The push to confront the sentencing disparities has gained bipartisan momentum, and its passage is all but guaranteed in the evenly split Senate, where lawmakers need the support of 60 members to pass most bills.

While the EQUAL Act has notched the backing of 11 GOP co-sponsors in the upper chamber, there is little time left on the legislative calendar for passage this year, and leaders have been discussing changes to the bill as they try to pass it before the next session of Congress begins.

As part of a bipartisan deal, lawmakers are planning to reduce the sentencing gap from 18-to-1 to 2.5-to-1, as some Republicans have pushed against completely eliminating differences in the mandatory sentencing minimums for cocaine offenses. 

Reuters, which first reported plans to attach the effort to the omnibus, also reported that the new deal also doesn’t include provisions to apply the new sentencing limits retroactively, unlike the House-passed bill. 

The changes come as Sen. Chuck Grassley (R-Iowa), who is also involved in talks, has pushed for the 2.5-to-1 ratio, while pressing for a separate bill his office says seeks to preserve “the ability of courts to keep those most likely to reoffend off the street.” 

In a release accompanying that bill earlier this year, the office advocated against completely flattening the differences in sentencing. The office also cited data from the U.S. Sentencing Commission it said showed individuals who committed crack cocaine offenses recidivated “at the highest rate of any drug type.” It said “powder cocaine offenders recidivate at the lowest rate of any drug type at 43.8 percent.” 

Komar said there are other factors to be considered when weighing the argument. 

“We know that those different recidivism rates are caused by disparities and enforcement. They’re caused by differences in class,” Komar said. “And when we look at the science about the actual impact of crack and powder on the brain, there’s a negligible difference.“

Where the nation stands 

Only about a dozen states have a gap in sentencing for crack and powder cocaine offenses, according to a 2011 report from The Sentencing Project.

The federal government has also shifted on the issue, including in recent guidelines announced Friday by the Justice Department. 

The agency, which has endorsed the EQUAL Act, released new rules for prosecutors in crack cocaine cases they say are designed “to promote the equivalent treatment of crack and powder cocaine offenses.” 

“At sentencing, prosecutors should advocate for a sentence consistent with the guidelines for powder cocaine rather than crack cocaine,” a memo released by Justice Department said. “Where a court concludes that the crack cocaine guidelines apply, prosecutors should generally support a variance to the guidelines range that would apply to the comparable quantity of powder cocaine.” 

The policy goes further than what Congress is pushing for, but Komar says the legislation senators are working to pass would build upon the nation’s progress addressing the sentencing disparities.

“It’s always valuable to have something in law in addition to the use of discretion,” she said. 

But time will tell how the congressional effort fares, particularly as the recent directive from the Biden administration has already garnered GOP pushback.

In a statement on Friday afternoon, Grassley called the recent guidance “baffling and misguided,” and warned “it undermines legislative efforts to address this sentencing disparity.”

“That hard-won compromise has been jeopardized because the attorney general inappropriately took lawmaking into his own hands,” he added.