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Biden administration backs bill to undo cocaine sentencing disparities

The top White House drug policy official testified that the disparities have "caused significant harm for decades, particularly for individuals, families and communities of color."
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WASHINGTON — The top official coordinating U.S. drug policy told Congress on Tuesday that the Biden administration supports legislation to eliminate the disparity in sentences for crack and powder cocaine offenses, which she said have disproportionately affected people of color.

The administration "strongly supports eliminating the current disparity in sentencing between crack and powder cocaine,” said Regina LaBelle, acting head of the White House Office of National Drug Control Policy. “The current disparity is not based on evidence; it has caused significant harm for decades, particularly for individuals, families and communities of color," and is "a significant injustice in our legal system.”

Lawmakers discussed the legislation at a Senate Judiciary Committee on the sentencing issue. The bill, introduced by Chairman Dick Durbin, D-Ill., and Sen. Cory Booker, D-N.J., in January, would eliminate the crack and powder cocaine sentencing disparities and allow those convicted of such offenses to be resentenced.

The administration urges “swift passage” the proposal, she said, noting that under the current system, “the same offense — distribution of cocaine — results in radically different sentences, depending on the form of cocaine even though both formulations affect the brain the same way.”

United States Sentencing Commission data "has shown that a higher percentage of Black Americans are convicted in federal court for crack cocaine offenses versus powder cocaine offenses, and the sentencing disparity has caused them to receive substantially longer average sentence lengths for comparable offenses,” LaBelle added.

Ahead of the hearing, Durbin’s office noted the Anti-Drug Abuse Act of 1986, crafted by then-Sen. Joe Biden, gave those arrested for possessing small amounts of crack cocaine the same sentences as those possessing 100 times that amount of powder cocaine, which had an disproportionate impact on people of color.

While Congress reduced that sentencing disparity to 18 to 1 under a bill sponsored by Durbin in 2010, the new legislation would remove the disparity for good, his office said.

The Biden administration backed more lenient sentencing for low-level crack offenders in a brief filed with the Supreme Court in March, a move that came more than three decades after the legislation that created the sentencing disparity was signed into law.

In his opening remarks, Durbin said both forms of cocaine “produce similar physiological and psychological effects” once they reach the brain — and are both “addictive and dangerous.”

The original 1986 law, which he supported at the time, was derived from a “war on drugs mentality” in which Americans could “incarcerate our way out of a drug epidemic,” he said.

“By now, I hope we all understand that drug addiction is not a choice and just not a moral failing,” Durbin said. “It is a disease. Instead of meeting the public health crisis of addiction with care and compassion, we've met it with punishment and penalties. The results have been devastating. And when it comes to crack cocaine we established a sentencing disparity that directly fueled the crisis of mass incarceration in America.”

Durbin said the original policy “has no basis in science” and undermined trust in the criminal justice system, especially among Black Americans, who he said are six times more likely to be imprisoned on drug charges than white Americans even though rates of drug use are similar.

Sen. Chuck Grassley, R-Iowa, the panel’s ranking member, said he is open to reviewing the sentencing issues for crack and powder cocaine, but voiced frustration that Durbin didn’t allow a comprehensive hearing on the problem of cocaine use in the U.S., saying that the idea was “dismissed.”

“Drug sentencing laws are complex,” he said. “They must be fair and they must be just. But prioritizing public safety is very important. As such, they can't be based only on violent crime, risk prevention efforts or racial justice concerns. They must be comprehensive.”

Arkansas Gov. Asa Hutchinson, a former Republican congressman and Drug Enforcement Agency administrator, said in testimony that because the substances are chemically the same, “they should be treated the same for sentencing purposes.”

Sentencing Commission data showed that in 2019, 81 percent of crack cocaine defendants were Black, and in 2020, 76 percent were Black, even though other data shows that crack cocaine users are predominantly white, Hutchinson said.

“That adds to the sense of unfairness in our criminal justice system,” he said.

Booker said the sentencing difference for cocaine “has created within our society deeper schisms along racial lines where certain people have had their lives devastated by this disparity."

“This is not justice,” he said. “This is not those high ideals of humanity that we talk about in our most sacred civic documents, like the ideals of equal justice under the law.”