It’s time to right the wrong of the crack-powder sentencing disparity
In the aftermath of the 2020 election, many Black and Brown voters remained hopeful that the Biden administration and the new Congress would live up to promises made on the campaign trail to reform our broken criminal justice system. Many voters of color and progressive voters, in particular, pressed presidential candidates on everything from policing to sentencing.
Statistics show that for decades Black and Brown people have received harsher sentences due to the differences in how crack and powder cocaine offenses were viewed in the eyes of the law. Now a major piece of legislation is on the verge of being passed, the EQUAL Act of 2021.
The EQUAL Act, also known as the Eliminating a Quantifiably Unjust Application of the Law Act, was passed by the House at the end of September. On the Senate side, it has yet to receive a final vote but does have bipartisan support from Senators Cory Booker (D-NJ), Dick Durbin (D-IL), Rob Portman (R-OH), Rand Paul (R-KY), Thom Tillis (R-NC), and Patrick Leahy (D-VT), who are together co-sponsors of the legislation in that chamber.
Senator Booker has said of the need to pass the bill, “This critical piece of legislation will help right the wrongs of our nation’s failed War on Drugs and reform our broken criminal justice system.”
The 2020 election happened against the backdrop of intense reflection on the history of race, justice and injustice in America. Advocates for reform have encouraged legislators to consider the impact of race on how this nation’s laws have been applied.
“After the murder of George Floyd, it was obvious that we as a country needed to work harder to stamp out racial discrimination in our justice system. Eliminating the crack-powder disparity, which has disproportionately and unfairly harmed Black families, was an obvious target… We hope the Senate acts quickly to remove this 35-year-old mistake from the criminal code,” said Kevin Ring, president of FAMM, a criminal justice reform nonprofit.
The Supreme Court was recently asked to weigh in on such sentencing disparities in the case of Tarahrick Terry, who was convicted of and pled guilty to possession of “crack cocaine” and asked that his prison sentence be reduced because of the First Step Act retroactively applying the Fair Sentencing Act. But the Court found that Terry was convicted of something that did not dictate a mandatory minimum and therefore he could not be resentenced.
Justice Sonia Sotomayor in her concurring opinion wrote that “While the Fair Sentencing Act of 2010 and First Step Act of 2018 brought us a long way toward eradicating the vestiges of the 100-to-1 crack-to-powder disparity, some people have been left behind.”
The American Bar Association also makes a strong point about those left behind and others who could be impacted if the Senate doesn’t follow the House’s lead: “Legislators continue to back a harsh opioid policy that has produced—and will continue to produce—similar racial disparities as did the original sentencing scheme for crack cocaine.”
If The EQUAL Act is ultimately passed by the Senate and signed into law by President Biden, then Tarahrick Terry and countless others like him could have another shot at reducing their sentences.
That’s because the act makes it so that a sentencing court could retroactively order a reduced sentence for any defendant sentenced for a crack cocaine offense. As the Supreme Court often says, it’s up to Congress to change laws that people think unfair. So it’s now up to the Senate to make sure that crack cocaine offenses—which tend to impact more people of color—don’t have an unjust impact. That goes a long way towards making the positive change people counted on.
I encourage everyone to reach out to your U.S. senators to urge them to pass this important piece of legislation today.
Dejarion Echols received a 10-year mandatory minimum sentence for possession with intent to distribute at least 50 grams of crack cocaine and an additional 10-year mandatory minimum sentence for possession of a firearm during the commission of a drug trafficking crime. His judge said, “This is one of those situations where I’d like to see a congressman sitting before me.” Dejarion was released from prison in June of 2021.