Brennan Center Letter Expressing Support for the EQUAL Act

Dear Majority Leader Schumer:

We write on behalf of the Brennan Center for Justice to share the Center’s strong support for the EQUAL Act, and to encourage the Senate to advance the Act using any legislative vehicle at its disposal. As you know, the EQUAL Act would end the sentencing disparity between crack and powder cocaine once and for all.¹ Passing the Act would be a major step toward reducing racial disparities in the federal criminal legal system, and it would show that such reforms can be both transformative and bipartisan. We urge you to seize this opportunity while the moment lasts.

Today, federal drug mandatory minimums begin to apply at the 28-gram level for crack cocaine, but at the 500-gram level for powder cocaine, creating a roughly 18:1 sentencing disparity.² Before the Fair Sentencing Act of 2010, the gap was even starker — 100:1 — despite the fact that crack and powder cocaine are all but identical in their effects.³ There is no justification in policy or science for either sentencing disparity; indeed, as Justice Sonia Sotomayor recently wrote in Terry v. United States, there never was.⁴ Yet such disparate sentencing has persisted for a quarter-century, helping drive the disproportionate incarceration of Black men and women in the federal system.⁵ According to one study, between 1991 to 2016, Black individuals were sentenced to federal prison for crack cocaine offenses seven times more often than whites, even though “most crack users were and still are white.”⁶

For years the Brennan Center has advocated for reforms that close the crack/powder sentencing disparity and provide relief to those affected by it.⁷ Now the time has come to end the disparity altogether. Judging from the overwhelming 361–66 vote by which the EQUAL Act passed the House of Representatives, lawmakers in both parties appear to agree.⁸ Yet we also understand the challenges of legislating in a closely divided Senate, even on issues that enjoy bipartisan support, such as this one.

We therefore encourage you to use all tools at your disposal to ensure this vital reform reaches the President’s desk. Specifically, we ask that you consider including the EQUAL Act in must-pass legislation, such as the National Defense Authorization Act.⁹ Such a move would not be without precedent. Indeed, less than a year ago the Senate restored Pell Grant eligibility for people in prison — a bipartisan reform also years in the making — as part of a “year-end spending deal.”¹⁰ We are aware of no reason that the EQUAL Act could not be passed by a similar method.

Sending the EQUAL Act to President Biden for his signature would amount to a legacy- defining accomplishment for the Administration and the Senate majority alike. It would vindicate the President’s pledge to lead on this specific issue, and on federal criminal legal reform in general.¹¹ And, most importantly, it would make federal sentencing fairer while reducing the enduring harms of discredited “drug war” policies.

We urge you to take this once-in-a-generation opportunity, and ensure that the EQUAL Act passes the Senate before the new year.

Sincerely,

L.B. Eisen

Director, Justice Program Brennan Center for Justice

Ames Grawert

Senior Counsel & John L. Neu Justice Counsel, Justice Program Brennan Center for Justice