In the Reagan era, sentencing disparities in drug crimes reached levels that were difficult to believe. As the Associated Press reported several years ago, “[A] person selling five grams of crack faces the same five-year mandatory minimum sentence as someone selling 500 grams of powder cocaine.”
The racism at the heart of the policy was unsubtle: Most crack convictions involve Black defendants, while powder cocaine convictions involve Whites.
In 2010, at then-President Barack Obama’s urging, congressional Democrats successfully reduced the disparity, though a Senate compromise prevented them from eliminating it altogether. This was an important step — it was the first time in four decades that Congress had repealed a mandatory minimum — but it was incomplete.
President Joe Biden is ready to finish the job. The Washington Post reported yesterday:
At a Senate Judiciary Committee hearing, Regina LaBelle, acting director of the White House Office of National Drug Control Policy, expressed the administration’s support for the Eliminating a Quantifiably Unjust Application of the Law Act, or Equal Act. The legislation, sponsored by Senate Majority Whip Richard J. Durbin (D-Ill.) and Sens. Cory Booker (D-N.J.) and Rob Portman (R-Ohio), would eliminate the sentencing disparity and give people who were convicted or sentenced for a federal cocaine offense a resentencing.
For Biden, it’s an important opportunity to put things right: In 1986, the then-senator helped pass the law that created the disparity in the first place.
Time will tell whether the bipartisan legislation advances, but Sen. Tom Cotton (R-Ark.) has responded to the debate in the most Cotton-esque way possible.
This week, as the White House was endorsing the Equal Act, the Arkansas Republican was unveiling an alternative proposal that addressed the same problem in a very different way. From the senator’s press release:
Senator Tom Cotton (R-Arkansas) today introduced legislation that would strengthen the minimum penalties for powder cocaine trafficking to match penalties for crack cocaine trafficking…. “Crack and powder cocaine both kill thousands of Americans every year, but the penalties for selling each substance aren’t the same. My bill would increase penalties for criminals trafficking powder cocaine to ensure fairness in sentencing without granting early release to violent drug traffickers.”
So, the good news is, Cotton is not defending the obviously racist sentencing disparity. On the contrary, the Arkansan wants to eliminate it altogether.
The bad news is, Cotton wants to address the disparity through harsher sentences for everyone, creating a more punitive system.
As solutions go, this would be far less racist, but it would destroy many more lives.
