It’s always dangerous to bet against the war on drugs. Congress just showed us why — again.
In the face of bipartisan support, lawmakers somehow left out of their $1.7 trillion federal spending bill a simple measure that would finally eliminate the illogical and unjust punishment disparity between crack and powder cocaine.
Congress has apparently decided that it should leave a law on the books that makes no sense and disproportionately affects Black people.
The disparity passed in 1986 with the help of then-Sen. Joe Biden, imposing the infamous 100:1 ratio that treated a gram of crack like 100 grams of powder — all without scientific basis, as Biden noted years later. The ratio shrunk to 18:1 during the Obama and Trump years, but given an easy chance to end the disparity once and for all with the EQUAL Act, the Senate is staring that sordid history in the face and saying: Who cares?
That’s despite the act’s bipartisan passage in the House and supposed Republican support in the Senate as well. But whatever support there was, Congress has apparently conceded that it should leave a law on the books that makes no sense and disproportionately affects Black people.
In a statement on Tuesday, Holly Harris, president and executive director of the criminal justice advocacy group Justice Action Network, tore into the Senate over its failure to pass the act:
It is a searing indictment of a broken Beltway when a bill that passed the House with an overwhelming bipartisan vote, endorsed by law enforcement and civil rights leaders alike, with 11 Republican co-sponsors and filibuster-proof majority support in the Senate, and an agreement between the relevant committee Chairman and Ranking Member for inclusion in the end-of-year package, fails to make it to the President’s desk.
It’s hard to disagree with that assessment.
True, Attorney General Merrick Garland recently announced momentous policy changes at the Department of Justice, including instructing his federal prosecutors not to seek sentencing disparities in these cases. But as my MSNBC colleague Steve Benen pointed out Monday, the next Republican administration could upend Garland’s directive, meaning legislation is still needed to truly end the disparity.
Plus, what the Biden administration’s new policy won’t do, but the EQUAL Act would do, is provide retroactive relief to people serving unjust sentences. Biden, who supported the proposed legislation, could remedy these past injustices with clemency, but he hasn’t done so, despite issuing pardons ahead of the midterm elections for cannabis possession.
Speaking of cannabis, the spending bill featured another glaring omission: a marijuana banking bill. The SAFE Banking Act would have let legal weed businesses use banks like other businesses do. Their inability to do so creates safety issues by keeping cash on hand, leaving them vulnerable to violent robberies that purportedly tough-on-crime politicians should want to prevent. “They’re dead set on anything in marijuana,” Sen. Cory Booker, D-N.J., told NJ.com, referring to Republicans led by Senate Minority Leader Mitch McConnell, R-Ky. Sen. Ron Wyden, D-Ore., likewise said Tuesday that he’s “frustrated and disappointed that after coming so close to meaningful cannabis reform this Congress, the Republican Leader and a handful of Republican senators thwarted our efforts to improve public safety.” Wyden said he’s “going to keep fighting in the new Congress to bring common sense to the federal treatment of cannabis and begin to repair the harms done by the failed War on Drugs.” There’s no doubt that the war on drugs is a failure. So is any Congress that fails to take simple steps toward fixing it.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law. 
