Senate failure to bury a Reagan-era drug law would be an epic embarrassment

The Democratic-led Senate has the chance to right an infamous wrong in the war on drugs — but, shamefully, it might not happen.

Here’s how we got here. At the height of the drug war in 1986, a bipartisan Congress passed and “Just Say No” President Ronald Reagan signed into law the infamous 100:1 sentencing disparity for crack and powder cocaine crimes. So, for example, 5 grams of crack was treated like 500 grams of powder, with mandatory minimums to boot. There was no scientific basis for the measure that disproportionately affected Black people. 

In 2008, Joe Biden — who, as a senator, supported that 1986 law and other “tough on crime” bills — admitted that “each of the myths upon which we based the sentencing disparity has in some ways been dispelled or altered.” In 2010, Barack Obama signed into law the Fair Sentencing Act, which reduced the 100:1 disparity to a new made-up ratio, 18:1. The ACLU noted that the law “was a step toward fairness, but the 18:1 ratio was a compromise and it still reflects outdated and discredited assumptions about crack cocaine.” Donald Trump signed the 2018 First Step Act into law, which made the 18:1 ratio retroactive.

So here we are, decades later, with an improved but still illogical — and, therefore, still unjust — disparity. That obvious illogic and injustice has led to support for the EQUAL Act from the Biden White House and interest groups across the political spectrum. The bill — which would eliminate the sentencing disparity and apply retroactively — passed the House by a huge bipartisan margin: 361-66. Yet, there’s no clear sign that the Senate will accomplish the uncontroversial task of finishing the job. 

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Remarkably, the Senate might not even pass a watered-down version. Somehow, lawmakers are in a “tough negotiation moment right now,” according to Sen. Cory Booker, D-N.J., who is sponsoring the EQUAL Act, Politico reported last week. The outlet reported that “current talks surround reducing the ratio from the current 18:1 to 2.5:1,” and, even if a law makes it out of the latest negotiations with Republicans, it might not apply retroactively. That a weakened version might not pass shows that the Reagan era lives on; it certainly lives on in whatever vestige of the 1986 law stays on the books. And though we don’t have to look outside our own borders for injustice, the disparity diminishes whatever moral standing we might otherwise have to criticize other nations — such as, say, in the case of a nearly decadelong Russian prison term for vape canisters with cannabis oil. 

And let’s be clear about what we’re dealing with here. This isn’t prison abolition or police reform. The EQUAL Act wouldn’t end the drug war by any means. Equalizing punishment means there’s still punishment being imposed. It’s simply fixing the type of thing that might shock an ordinary person on the street if you told them about it. There’s no shortage of such things in the U.S. criminal system, but this is low-hanging fruit, making the failure to pick it that much more pathetic. 

But wait. Is this really the end? If the EQUAL Act passed the House by an insanely wide margin and the Democrats are keeping the Senate, then couldn’t Congress just pass it next year? Perhaps. But, putting aside the question of what would be different in the Senate next time, the incoming House Republican majority may be more focused on Hunter Biden and other boondoggles than passing Democratic-supported legislation. At any rate, whatever further opportunities could come, there’s no excuse for not ending the disparity now.