On The Cusp of History

On The Cusp of History
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Anyone who works on reforming the criminal justice system can attest to the fact that such efforts often take years of commitment and dedication before bearing fruit. We are currently at just such a moment, as Congress is one final step away from passing major, if less than perfect, reform of one of the most deeply flawed aspects of a broken and dysfunctional criminal justice system - the 100 to 1 sentencing disparity between crack cocaine and powder cocaine.

More than 23 years ago, at the height of public hysteria over the effects of crack cocaine and based on myths that have since been entirely debunked, Congress passed, and President Reagan signed into law, legislation that established the infamous 100 to 1 disparity. Possessing or dealing five grams of crack cocaine - the weight of two pennies - currently results in the same five-year mandatory minimum sentence as dealing 500 grams of powder cocaine. Seventeen years ago, Nkechi Taifa and I, through the ACLU Washington Office, convened the first national conference on the crack/powder disparity bringing together scientists, defense attorneys, affected families, criminologists, members of Congress and civil rights groups. It was at that conference we were finally able to persuade key leaders that this issue was not just a criminal justice reform issue, but it was also civil rights, civil liberties and human rights crisis that greatly contributed to record setting rates of incarceration in the United States.

In the two decades that followed, the disparity has resulted in gross racial inequality in the African-American community and contributed to disproportionately severe sentences and prison overcrowding because low-level, often first time, nonviolent drug users were getting hard time instead of drug treatment. This diversion of government resources could have been used for far more effective prevention and treatment programs that would not have destroyed families in the process.

In March, the US Senate passed, by unanimous consent no less (meaning not one senator objected), long-overdue legislation to help reform the infamous crack sentencing disparity. The Fair Sentencing Act (S. 1789) would vastly reduce the disparity to a ratio of 18 to 1, as well as eliminate the five-year mandatory minimum sentence for simple possession of crack. Just think about that for a second - five years for the weight of two pennies worth of crack. Is it any wonder the US has the dubious distinction of being the world's leading incarcerator?

It is important to point out that maintaining an 18 to 1 disparity is not at all based on science showing differences between crack and powder cocaine (they are literally different forms of the exact same drug), but was instead a compromise reached to secure broad-based support from members of both political parties. This painful compromise helped to ensure that senators would not have to cast a politically difficult vote in a highly contentious election year.

The ACLU has remained steadfast in our commitment to eliminating the disparity completely. It has always been the single truly just remedy. However, now that the Senate has acted to pass a reform bill that falls short of our ideal, we must confront the reality that it will nonetheless make important improvements in the lives of many people who would have otherwise been locked away for years, or decades, on end.

The Fair Sentencing Act is currently awaiting a final vote on the House floor before being sent to President Obama for his signature. Never before have advocates for crack cocaine sentencing reform been so close to the finish line - a struggle I have been engaged in since 1993.

Thankfully, it has not been a struggle the ACLU has been engaged in alone. Among the broad and ideologically diverse coalition of organizations currently pressing for reform of the sentencing disparity includes the NAACP; Leadership Conference on Civil and Human Rights; American Bar Association; the National District Attorneys Association; Federal Law Enforcement Officers Association; National Association of Evangelicals; Prison Fellowship; the International Union of Police Associations; and dozens of former federal prosecutors and judges.

The House could vote any day now on the Fair Sentencing Act. I am very hopeful that it will successfully pass this final legislative hurdle before bringing some much needed justice to an aspect of our criminal justice system that has been sorely lacking in just that for far too long now.

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