Narrowing the Justice Gap

This week, Congress made two important advances involving two key pieces of criminal justice legislation that are part of the Brennan Center’s criminal justice advocacy efforts.

On Wednesday, the United States House of Representatives passed historic legislation that will help to end the longstanding sentencing disparity for offenses involving crack and powder cocaine. After more than 20 years of sentencing with a 100-to-1 disparity (a disparity put in place as a response to combating, what was then perceived, as the more harmful effects of crack cocaine on urban communities), legislation that reduces that disparity down to 18-to-1 is now headed to the desk of President of Obama.

This legislation, previously passed in the United States Senate in March of this year, is historic not only in terms of how far it goes in lowering the disparity but also in terms of the bi-partisan support behind passage of the legislation.

This legislation is particularly important to the Brennan Center because it is a key part of an effort in our Justice Program to offer reforms that will help reduce the impact of racial disparities in our criminal justice system. As noted in our report Racial Disparities in Federal Prosecutions, the sentencing disparity for offenses involving crack and powder cocaine is one of the harshest examples of racial disparities in our criminal justice system. It has long been argued that the unequal sentencing involving crack and powder cocaine disproportionately punishes African-Americans and the poor. This legislation goes a long way towards completely eradicating one of the systems most insidious disparities.

Advocates, including the Brennan Center, actively sought to pass legislation that would completely eliminate the disparity but ultimately a compromise was reached in the Senate between Judiciary Committee leaders, Chair Dick Durbin and ranking Republican leader, Jeff Sessions, which resulted in reducing the disparity down to 18 to 1. This compromise also eliminates the five year mandatory minimum sentence for simple possession of five grams of cocaine. This repeal is the first repeal of a mandatory minimum drug sentence since the 1970’s. The passage of this bill is expected to reduce the federal prison population by thousands and save an estimated $42 million in criminal justice spending over the next five years.

While this legislation is not and cannot be the final word on ending sentencing disparities, it is a major step on the road towards ultimate and complete elimination of the disparity.

The President is expected to sign this bill enthusiastically into law once it reaches his desk—as lowering the disparity has been one of this White House’s criminal justice goals.

One day prior to passage of the historic sentencing legislation, the House of Representatives passed legislation that will create a blue-ribbon, bi-partisan commission charged with examining and making recommendations for reforming the nation’s criminal justice system. H.R. 5143, introduced by Representative William Delahunt is the companion piece to a bill originally introduced in the Senate by Senator Jim Webb (S. 714), who has made creation of this commission one of his key legislative priorities.

If the Commission is created, it will be the first comprehensive review of our nation’s criminal justice system since the Johnson Administration.

The commission will study all areas of the criminal justice system, including federal, state, local and tribal governments’ criminal justice costs, practices, and policies. After conducting the review, the Commission will make recommendations for changes in, or continuation of oversight, policies, practices, and laws designed to prevent, deter, and reduce crime and violence, improve cost-effectiveness, and ensure the interests of justice. The Commission will consist of a bi-partisan group of commissioners from various realms of the criminal justice system, including prosecutors, defenders and advocates. The Commission will spend eighteen months reviewing the system prior to making final recommendations for reform.

The bill has been endorsed by approximately 100 organizations including the Brennan Center, which is part of a coalition of advocates engaged in an effort to reform certain areas of our federal criminal justice system.