As a senator in 1986, President Joe Biden wrote the bill that established an irrational sentencing disparity between the smoked and snorted forms of cocaine, which he later called “a big mistake” that “trapped an entire generation.” This week, Congress squandered yet another opportunity to correct Biden’s big mistake, which mandated especially severe punishment for crack offenders based on an arbitrary distinction with no scientific basis.
The omnibus spending bill that was released early Tuesday did not include legislation addressing crack cocaine penalties. Republicans who had been open to that proposal reportedly balked after Attorney General Merrick Garland issued a memo last Friday that instructed federal prosecutors to “promote the equivalent treatment of crack and powder cocaine offenses” in their charging decisions and sentencing recommendations.
As Senate Minority Leader Mitch McConnell (R-Ky.) saw it, Garland’s memo usurped congressional authority by shielding crack defendants from mandatory minimum sentences. So instead of asserting that authority by rectifying a blatantly unjust penalty scheme, Congress again kicked the can down the road.
The Anti-Drug Abuse Act of 1986, which Biden wrote, established a sentencing policy that treated smokable cocaine as if it were 100 times worse than the snorted kind. Under that law, possessing 5 grams of crack with intent to distribute it triggered the same five-year mandatory minimum sentence as 500 grams of cocaine powder; the 10-year mandatory minimum required 5 kilograms of cocaine powder but only 50 grams of crack.
Because federal crack offenders were overwhelmingly Black, while cocaine powder offenders were more likely to be white or Hispanic, the rule Biden championed meant that darker-skinned defendants received substantially heavier penalties than lighter-skinned defendants for essentially the same offenses. As that trend became clear, the African American legislators who had supported the law turned against it.
By the early 1990s, pressure was building for reform of crack penalties. But Biden was slow to acknowledge his error.
“We may not have gotten it right,” Biden conceded 16 years after he helped establish the 100-to-1 rule. Five years later, during an unsuccessful bid for his party’s 2008 presidential nomination, he introduced a bill that would have equalized crack and cocaine powder sentences.
Congress still has not done that. But the Fair Sentencing Act of 2010 reduced the weight ratio, making it 18 to 1 rather than 100 to 1, and the FIRST STEP Act, which former President Donald Trump signed at the end of 2018, made that change retroactive, which resulted in the early release of about 2,400 federal prisoners.
The Fair Sentencing Act passed the House by a voice vote and the Senate by unanimous consent. By that point, pretty much everyone agreed that the 100-to-1 ratio was crazy, but eliminating the disparity altogether was still not politically feasible.
Under current federal law, someone caught with 28 grams of crack (about an ounce) automatically goes to prison for at least five years unless he qualifies for a statutory “safety valve” or prosecutors certify that he has provided “substantial assistance” to the government. But depending on his criminal history, someone caught with the same amount of cocaine powder could receive a sentence ranging from less than a year to three years.
Even today, Republicans who agree that further reform is necessary propose reducing the gap instead of eliminating it. Yet as Garland noted in his memo, “the crack/powder disparity is simply not supported by science, as there are no significant pharmacological differences between the drugs.”
Biden’s 2019 explanation of his thinking in 1986 gives you a sense of how little attention legislators pay to such facts when they are determined to show how tough they are on drugs. “We thought we were told by the experts that crack ... was somehow fundamentally different,” he said. “It’s not different.”
Now, 36 years later, Congress is still pretending otherwise.
Jacob Sullum is a senior editor at Reason magazine.
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