Righting Some of the Wrongs

In his final hours, President Biden commuted sentences for nearly 2,500 victims of the failed war on drugs—non-violent drug offenders who have suffered years unjustly imprisoned thanks to old policies such as sentencing disparities between crack and powder cocaine.

Knowing the history, and fearful of repeating similar mistakes, I am grateful for this decision. In correcting the historical injustice—overwhelmingly inflicted on marginalized communities—it also draws our attention to the shameful policies of the past that served only to exacerbate the hardships of those who need support.

A look back: The Anti-Drug Abuse Act of 1986 established mandatory minimum sentencing including a 100 to 1 disparity for possession of crack vs. powder cocaine. A person possessing five grams of crack would be sentenced to a minimum of five years in prison. One would need to possess 500 grams of powder cocaine—100 times as much—to get the same sentence. Without any scientific evidence to justify this disparity, penalties were mandated, even for first-time offenders charged with simple possession.

Exaggerated media accounts galvanized this overreaction. As reiterated by research scientist and Columbia University Professor Carl Hart, “From a scientific perspective, any sentencing disparity for crack and powder cocaine makes no sense. There are no pharmacological differences between them to justify such differential treatment under the law."

On top of its ill-founded premise, this Act unleashed a wrecking ball—quadrupling the drug enforcement budget, bolstering punitive measures and lengthening prison sentences for low-level drug possession. This didn't just intensify the drug war, it was a blatant war on Black people who have continued to pay a steep price.

Before this Act, average drug sentences for Black people was 11% higher than for white people. In four years, this discrepancy shot up to 49%, deepening the catastrophic inequities that sully our criminal justice system. In 2006—the Act's 20th anniversary—the ACLU released Cracks in the System featuring stinging realities: Over 80% of people imprisoned for crack are Black even though the majority of crack users are white; and 73% are low-level offenders.

There's more: The incarcerated population of 196,000 in 1970 surged to 740,000 by 1990, distinguishing the US as the world leader in mass incarceration. According to The Sentencing Project, "There are 2 million people in the nation’s prisons and jails—a 500% increase over the last 40 years. Changes in sentencing law and policy, not changes in crime rates, explain most of this increase."

The Fair Sentencing Act of 2010 reduced penalties to an 18 to 1 disparity for crack vs. powder cocaine—a step that still fails to reflect science and targets marginalized populations, many of whom remain unjustly imprisoned. Currently on the docket, the EQUAL Act aims to eliminate the forty-year injustice. To urge passage, we write to our senators hoping for a "victory"— partially repairing what lawmakers, without evidence, created in the first place.

It's tragic to realize that crack cocaine panic was fueled by mistruths: 1) Crack is more dangerous and more addictive than powder cocaine—giving rise to the so-called "crack baby" myths; 2) Crack is used primarily by Black people. The truth is that crack is more affordable for low-income individuals; and that babies born to mothers who used crack were not unlike those born to heroin users. While a concern, depending on the extent of the drug use, there is no distinction matching the mythology.

Despite years of research, proven life-saving strategies are often thwarted by policymakers' longstanding comfort with punitive measures. At the expense of wellness, appearing to be "tough on crime" or placating public opinion runs roughshod over the hard work of analyzing evidence and adapting accordingly.

In exposing the failure of overly harsh penalties, President Biden's use of clemency inspires long-awaited justice over discrimination and enables our triumph over the shackles of the failed drug war, ending the penchant for mandatory minimum sentencing and unleashing our capacity to mirror our peer countries and save thousands of lives.