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Statement

Brennan Center Letter Expressing Support for the EQUAL Act

On November 17, the Brennan Center sent a letter to Leader Schumer, urging the Senate to advance the EQUAL Act which was passed in the House on September 28, 2021.

Last Updated: November 17, 2021
Published: November 17, 2021

RE: Brennan Center 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. foot­note1_bhij30j 1 EQUAL Act, S. 79, 117th Cong. (2021), https://www.congress.gov/bill/117th-congress/senate-bill/79. 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. foot­note2_fadwnj8 2 21 U.S.C. § 841(b)(1)(B)(ii), (iii).  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. foot­note3_fos3bf1 3 Amer­ican Civil Liber­ties Union, Crack in the System: Twenty Years of the Unjust Federal Crack Cocaine Law, 2006, 5, https://www.aclu.org/sites/default/files/field_docu­ment/cracksin­sys­tem_20061025.pdf; Dorothy K. Hatsukami and Marian W. Fisc­h­man, “Crack Cocaine and Cocaine Hydro­chlor­ide: Are the Differ­ences Myth or Real­ity?,” Journal of the Amer­ican Medical Asso­ci­ation 276, no. 19 (1996): 1580.  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. foot­note4_rezpzqr 4 See Terry v. United States, 593 U.S. , 141 S. Ct. 1858, 1865 (2021) (Soto­mayor, J., concur­ring); Rachel Barkow, “Categor­ical Mistakes: The Flawed Frame­work of the Armed Career Crim­inal Act and Mandat­ory Minimum Senten­cing,” Harvard Law Review 133 (2019): 215, https://harvard­lawre­view.org/2019/11/the-flawed-frame­work-of-the-armed-career-crim­inal-act-and-mandat­ory-minimum-senten­cing/ (“Instead of research­ing the issue or seek­ing expert guid­ance — for example, by asking the newly created Senten­cing Commis­sion to address the topic — Congress set policy based on noth­ing more than its assump­tions drawn from media accounts.”).  Yet such dispar­ate senten­cing has persisted for a quarter-century, help­ing drive the dispro­por­tion­ate incar­cer­a­tion of Black men and women in the federal system. foot­note5_ur6qisd 5 Barkow, “Categorial Mistakes,” at 213–14 (describ­ing the 100:1 dispar­ity’s origin in the Anti-Drug Abuse Act of 1986); Paul J. Hofer, “Federal Senten­cing after Booker,” Crime and Justice Volume 48 (2019): 173, https://www.journ­als.uchicago.edu/doi/abs/10.1086/701712 (collect­ing research on racial dispar­it­ies).  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.” foot­note6_amntr7f 6 Shan­non Mullen et al., “Crack vs. Heroin: An Unfair System Arres­ted Millions of Blacks, Urged Compas­sion for Whites,” Asbury Park Press, 2019, https://www.app.com/in-depth/news/local/public-safety/2019/12/02/crack-heroin-race-arrests-blacks-whites/2524961002/; United States Senten­cing Commis­sion, “Quick Facts on Crack Cocaine Traf­fick­ing Offenses,” 2019, https://www.ussc.gov/sites/default/files/pdf/research-and-public­a­tions/quick-facts/Crack_Cocaine_FY19.pdf.

For years the Bren­nan Center has advoc­ated for reforms that close the crack/powder senten­cing dispar­ity and provide relief to those affected by it. foot­note7_7031bgq 7 Bren­nan Center for Justice, Letter to Senator Charles E. Schu­mer and Senator Mitch McCon­nell, Septem­ber 30, 2021, https://www.bren­nan­cen­ter.org/our-work/research-reports/bren­nan-center-letter-express­ing-support-bipar­tisan-senten­cing-reform; Ames Grawert, “What is the First Step Act — And What’s Happen­ing With it?,” Bren­nan Center for Justice, June 23, 2020, https://www.bren­nan­cen­ter.org/our-work/research-reports/what-first-step-act-and-whats-happen­ing-it.  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. foot­note8_3qtheww 8 See C.J. Ciara­mella, “House Passes EQUAL Act to Erase Senten­cing Dispar­ity Between Crack and Powder Cocaine,” Reason, Septem­ber 28, 2021, https://reason.com/2021/09/28/house-passes-equal-act-to-erase-senten­cing-dispar­ity-between-crack-and-powder-cocaine/ (noting the bill’s passage by a “wide bipar­tisan vote” of 361–66).  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. foot­note9_3aap04j 9 Teaganne Finn, Frank Thorp V, and Julie Tsir­kin, “Schu­mer Tees up Timeline for Senate Through the End of the Year,” NBC News, Novem­ber 14, 2021, https://www.nbcnews.com/polit­ics/congress/schu­mer-tees-timeline-senate-end-year-n1283861.  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.” foot­note10_089qjll 10 Michael Strat­ford, “Congress Clinches Deal to Restore Pell Grants for Pris­on­ers 26 Years after Ban,” Politico, Decem­ber 20, 2020, https://www.politico.com/news/2020/12/20/congress-pell-grant-pris­on­ers-449364.  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. foot­note11_8pi7gmu 11 “The Biden Plan for Strength­en­ing Amer­ica’s Commit­ment to Justice,” accessed Novem­ber 15, 2021, https://perma.cc/6NHM-7FHM.  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

End Notes