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A Bittersweet Moment

Laura W. Murphy,
Director, ACLU Washington Legislative Office
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March 19, 2010

(Originally posted on Huffington Post.)

Late on Wednesday evening, the U.S. Senate passed, by unanimous consent no less, a long-overdue bill that will help to reform one of the most egregious aspects of our nation’s criminal justice system — the staggering 100 to 1 sentencing disparity between crack cocaine and powder cocaine offenses. That we have arrived at this moment, less than a week after the Senate Judiciary Committee voted 19-0 in support of the legislation, is a minor miracle that has taken years of advocacy to accomplish.

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. In the two decades that have followed, the disparity has resulted in gross racial inequality and contributed to skyrocketing incarceration rates of low-level, nonviolent drug offenders, all while diverting precious resources away from effective measures, like prevention and treatment.

I helped to organize the first national conference on the devastating impacts the disparity was having on African-Americans in 1993. We have learned even more since then, and the case for eliminating the disparity has only grown stronger with the succeeding years. Shortly after Barack Obama became president in 2009, his Department of Justice, for the first time in its history, endorsed fully and completely eliminating the crack/powder sentencing disparity. Washington being Washington, however, nothing ever plays out as logic (and fundamental fairness) would seem to dictate, which is where my current bittersweet feelings come into play.

The Senate legislation, without question, takes important steps towards reforming one of the single worst aspects of the criminal justice system; however, it does not go as far as it should have. While the legislation will result in a reduction of the disparity, not to mention the first time since the Nixon administration that the Senate has voted to repeal a mandatory minimum, it leaves in place a sentencing disparity between crack and powder cocaine of 18 to 1.

This 18 to 1 disparity is not based at all 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. It helped to ensure that senators would not have to cast a politically difficult vote in a charged election year climate. From a purely political standpoint, it could not have played out any better than it did for Democrats and Republicans in the Senate.

As a nonpartisan organization committed to a set of fundamental principles rooted in democracy, equality, liberty and justice, the ACLU approaches this issue from a different vantage point. We see a glaring injustice that is wholly unsupported by the facts and that has been crying out for reform for years. We, as an organization, have remained steadfast in our commitment to completely eliminating the disparity. It has always been the only just thing to do.

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 House of Representatives should pass this legislation so that it will reach President Obama’s desk and become law. Its passage will not achieve sentence equalization but will at least shift momentum away from over-incarceration to a more reasonable sentencing policy — a bittersweet measure for justice.

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