Throughout a political career spanning six decades, President Joe Biden has championed bills that have devastated the criminal justice system—reforms that seem rooted in a misguided philosophy on public safety. “It doesn’t matter whether or not [criminals are] the victims of society. I don’t want to ask, ‘What made them do this?’ They must be taken off the street,” he said in 1993. “Lock the S.O.B.s up.”
Certainly, prisons have a role to play in the justice system, but Biden’s harsh point of view in the 1980s and 1990s led to damaging, myopic public policies. He sponsored the notoriously bad 1994 Crime Bill and co-sponsored the 1986 Anti-Drug Abuse Act (ADAA). Both resulted in overcriminalization, overincarceration and ravaged communities. Meanwhile, they didn’t adequately protect Americans. Instead, they cost taxpayers millions of dollars. Despite Biden’s disappointing history with criminal justice, he has a chance for redemption, and he should seize it.
Just days ago, the U.S. House of Representatives overwhelmingly approved the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act. It would give the ADAA a drastic and much-needed makeover. The proposal now sits in the Senate, where it faces an uphill battle. Yet if Biden is now serious about productive criminal justice reforms, then his administration should actively engage members of the Senate to secure the EQUAL Act’s passage.
The ADAA sprouted in the thick of the “tough-on-crime,” war on drugs era. But much like the war on poverty, it has been an abject failure and has led to some deleterious policies that still plague us. Indeed, in a knee-jerk reaction to the emergence of crack cocaine, Congress created a skewed sentencing framework for crack-related crimes, but they were made with little rhyme or reason. These policies have since wreaked havoc on the justice system.
The ADAA “included heightened mandatory minimum sentences for drug trafficking, with crack cocaine treated more harshly than powder cocaine,” my colleagues Jillian Snider and Sarah Anderson recently wrote. “Only 5 grams of crack cocaine would trigger the same new mandatory minimum sentences as 500 grams of powder cocaine.” This resulted in a 100-1 sentence disparity.
The unfairness of this policy is obvious. While both crack cocaine and powder cocaine are dangerous drugs that should never be used, both have the same “physiological and psychotropic effects,” according to a 1995 report to Congress. What’s more, the ADAA requires many low-level retail crack dealers to be sentenced in the same manner as high-level powder cocaine traffickers. This ensures that more people are sent to prison for longer periods of time, but for perceivably lesser crimes.
These extended prison sentences do not appear to be particularly beneficial either. “Locking people up for drugs does not reduce drug use or overdose deaths. Mandatory minimum sentences for drug and other offenders ‘have few, if any, deterrent effects.’ At the same time, reducing prison terms for drug offenders doesn’t lead to more drug offenses,” the Equal Justice Initiative asserts. In the end, the ADAA has just bloated prison populations, drained precious resources and disproportionately impacted specific communities in which crack is more prevalent than powder cocaine.
Given all this, it should come as little surprise that the 1995 report to Congress recommended closing the sentencing gap, but for years, Congress demurred. Finally, in 2010 Congress made some progress when it reduced the sentencing disparity from 100-to-1 to 18-to-1. Yet the aforementioned problems with this sentencing gap persists.
After decades of grappling with these issues, there’s hope for a more rational approach. If adopted, the EQUAL Act “would reduce the penalties for federal crack cocaine offenses to the same level as those for powder cocaine offenses, and it would make those changes retroactive, meaning federal crack offenders currently serving prison sentences will be eligible to have their sentences reduced,” reads a Reason article.
The EQUAL Act is a commonsense step toward addressing the injustices of the ADAA. Releasing those who have served more than their time will ensure a higher degree of equity within the sentencing paradigm. This would ultimately encourage justice to be served more evenly, which would allow prison populations to be responsibly reduced and resources directed elsewhere.
The EQUAL Act is not about eliminating accountability or legalizing drugs, but rather about instituting equal accountability. Even so, getting the EQUAL Act across the finish line is a heavy lift that needs influential backers—like the Biden administration.
While President Biden’s history with criminal justice leaves much to be desired, he claims to now have a more enlightened approach to criminal justice. After several decades, I don’t doubt that many of his views have greatly evolved for the better, and the EQUAL Act gives him the opportunity to prove it.
Marc Hyden is the director of state government affairs at the R Street Institute, and he is a long-time Georgia resident. You can follow him on Twitter at @marc_hyden.