Statement on the Senate Passage of the Fair Sentencing Act, (S. 1789)
Last night, the Senate approved a compromise measure that narrows the sentencing disparity between crack and powder cocaine offenses. The Fair Sentencing Act (S. 1789), introduced by Senate Majority Whip, Richard Durbin (D-IL), originally sought to completely end the sentencing disparity between offenses involving both crack and powder cocaine. Current law requires that a person convicted of crack cocaine possession receive the same mandatory jail time as someone convicted for possession of 100 times that quantity of powder cocaine. The version of the bill that was eventually voted out of the Senate Judiciary Committee and, later, by the full Senate, was an amended version of the original bill that reflected months of negotiations between Mr. Durbin and the ranking Republican on the Senate Judiciary Committee, Jeff Sessions of Alabama. The Senate-approved measure establishes an 18:1 ratio for crack and powder cocaine sentencing guidelines.
While this move by the Senate is historic in that it is the first substantial move towards ending the disparity since the enactment of law in the mid-1980’s that instituted them, it falls far short of complete elimination of the disparity. The lower sentencing trigger for crack has disproportionately affected African-Americans and other minority groups since the inception of the 1986 law. Numerous studies have been documented showing that there is no justification based in fact, or otherwise, for the existence of this disparity. It is this disproportionate impact that has inspired criminal and social justice advocates to wage a multi-year effort seeking complete elimination of the disparity and which has served as a catalyst for change to this law from the ranks of federal judges to the United States Sentencing Commission and even from the White House.
Despite efforts by the Senate to bring equalization to the sentencing structure, the measure passed last night still leaves a disparity in place, albeit a smaller one, but a disparity nonetheless.
The bill will now go to the House of Representatives where companion legislation seeking elimination of the sentencing disparity has been introduced by Representative Robert Scott (D-VA), Chairman of the House Subcommittee on Crime, Terrorism and Homeland Security. The prospects for the bill in this chamber are unknown. And, as recently as this week, despite the fact that the Administration has been on record for some time supporting a complete elimination of the disparity, it hailed the Senate compromise as a victory that was reflective of significant progress in the effort to end this long-standing disparity.
As part of its commitment to advocating for elimination of all racial disparities in the criminal justice system, the Brennan Center has supported a complete elimination of this and other race-based disparities, (See testimony of Nicole Austin-Hillery submitted to the Senate Judiciary Committee) and is hopeful that this measure will not be the final chapter in the overall fight to bring about parity in sentencing and an ending to this type of discrimination.