Is it foolish to hope, after now 35 years, that Congress will soon fix the crack-powder federal sentencing disparity?

My twitter feed this morning was full with folks noting that today marks officially a full 35 years(!) since Congress enacted the notorious 100-1 crack/powder cocaine ratio disparity.  The full story of 35 years of federal crack sentencing injustice and dysfunction cannot be recounted in a blog post.  But a few highlights document that a complete fix is long in the making, long overdue, and cannot come to soon. 

The US Sentencing Commission sent a report to Congress in 1995  — 26 years ago! —  highlight the myriad flaws with the crack-powder sentence scheme and proposed guidelines changes to partially fix the 100:1 crack/powder disparity by adopting a 1:1 quantity ratio at the powder cocaine level.  But Congress passed, and President Bill Clinton signed, legislation rejecting the USSC’s proposed guideline changes (see basics here and here), thereby ensuring decades of disproportionately severe crack sentences and extreme racial inequities in cocaine offense punishments.

Barack Obama gave a 2007 campaign speech assailing the crack/powder disparity, and in 2009 the Obama Justice Department advocated for "Congress to completely eliminate the crack/powder disparity."  Despite strong DOJ advocacy for a 1:1 ratio in April 2009, it still took Congress more than a year to enact only a partial reduction in crack sentences rather than the parity advocated by the USSC in 1995 and by DOJ in 2009.  Specifically, the Fair Sentencing Act enshrined a new 18:1 crack/powder quantity disparity ratio into federal drug sentencing statutes and guidelines, and even this modest reform did not become fully retroactive until eight years later with the 2018 FIRST STEP Act.

Excitingly, as noted here, the US House voted 361-66 last month to pass the EQUAL Act to end, finally and completely, the statutory disparity between powder and crack cocaine sentences.  In this new Hill commentary, Aamra Ahmad And Jeremiah Mosteller make the case that Congress should finally get this long overdue reform to the finish line.  Here is the start and end of their piece:

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....

The EQUAL Act recently passed the House of Representatives with an overwhelming bipartisan vote of 361 to 66.  It is rare to see Louie Gohmert (R-Texas), a former Texas judge and nationally-recognized staunch conservative, agree with Hakeem Jeffries (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 Biden’s desk for his signature.  Senators Cory Booker (D-N.J.), Dick Durbin (D-Ill.), Rob Portman (R-Ohio), Thom Tillis (R-N.C.), Rand Paul (R-Ky.), and Patrick Leahy (D-Vt.), and Lindsey Graham (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.

A few prior recent related posts:

• An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration
• New efforts to fix the ugly old problem of sentencing disparity for federal crack and powder cocaine offenses 
• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• Depressing (and abridged) FSR reminder of just how long we have known crack sentences are especially whack 
• US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences
• After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong? 
• Shouldn't federal prosecutors already be doing what they can to minimize the unjust crack-powder sentencing disparity? 

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