In 2013, when Terrance Stanton was 26 years old, he was arrested and convicted of dealing crack and powder cocaine. Stanton grew up in a family where there was physical abuse and not a lot of money, and he turned to drugs to try to earn a living. Because he dealt crack, which carried a much harsher mandatory sentence than powder cocaine, Stanton was sentenced to life in prison.
In 2015, Congress lowered sentencing guidelines for crack-related offenses to bring them more in line with powdered cocaine, hoping to narrow a gap that disproportionally sent Black men behind bars for decades instead of years. As a result, Stanton’s sentence was reduced. Instead of life behind bars he only had to serve 30 years — with a release date in 2039.
Yet he would be home even sooner had Congress simply treated crack the exact same way as cocaine.
His wife, Sagan Soto Stanton, said she still can’t fathom why her now 34-year-old husband should spend decades behind bars, missing out on the childhoods of his four children, just because of the lingering sentencing disparity.
“Still to this day, I cannot process that,” she said. “The day he was sentenced, our youngest was one. It forced me to grow up and figure out how I could move forward without their dad being present.”
But dad may be coming home soon.
In September, the U.S. House of Representatives passed the Eliminating a Quantifiably Unjust Application of the Law Act, known as the EQUAL Act, which would eliminate the crack-cocaine disparity in federal drug sentencing that has existed for more than three decades. The bill would apply retroactively, allowing Stanton and thousands of disproportionately Black men who were sentenced for crack-related crimes to reduce their sentences, leave prison, and rejoin their families.
The bill passed the House with broad bipartisan support on a vote of 361 – 66 but still needs to pass the Senate and be signed by President Joe Biden. Though Biden co-sponsored the 1986 Anti-Drug Abuse Act, which created the disparity, he has since supported efforts to reverse the policy and his Justice Department has endorsed the EQUAL Act.
‘There Was No Science Behind It’
The EQUAL Act represents the latest effort to reckon with the stark sentencing disparities signed into law at the height of the war on drugs, when lawmakers were trying to outdo one another to be tough on crime and turned to policing and prisons to respond to the crack epidemic. At the time, President Ronald Reagan recommended a 20 to 1 sentencing disparity for powder cocaine and crack. The recommendation lacked any scientific backing for why one drug would carry a harsher sentence than the other. Lawmakers rejected Reagan’s recommendation and implemented their own. They passed a law with a 100 to 1 disparity.
“The history of this disparity between crack and powder cocaine is really disturbing,” said Holly Harris, executive director of the Justice Action Network, a bipartisan organization working on criminal justice reform. “There was no science behind it. There was no reason to treat crack and powder cocaine differently other than one was used in predominantly poor Black areas and the other was a drug that was used in a lot of rich, wealthy areas.”
After the disparity was enacted, the average federal drug sentence for Black defendants was 49% higher than the average for white Americans. In 2019, 81% of defendants convicted of federal crack cocaine distribution were Black.
Sentencing disparity for powder cocaine and crack passed by lawmakers in 1986
Within a few years of the passage of the Anti-Drug Abuse Act, prisons ballooned with a largely non-white population charged with non-violent drug offenses — and often addicted to those very same drugs. It didn’t take long for the U.S. Sentencing Commission and the public to realize that the law had been an overreaction.
In 1994, Congress passed a drug safety valve in the broader crime bill, which gave judges discretion to ignore the mandatory minimum. Nevertheless, the disparity between crack and powder cocaine persisted. Even if lawmakers could agree that the disparity was wrong, they continued to debate the right path forward. Still, small steps were made. By 2010, Congress passed the Fair Sentencing Act, which reduced the 100-to‑1 disparity to 18-to‑1 — a ratio still lacking in any scientific basis.
“Again, no science, no reason, just a totally arbitrary number,” Harris said.
Eight years later, Congress applied the reduction to people who had already been convicted by passing the First Step Act, reducing thousands of people’s sentences.
“3,500 people have received an average reduction of six years in their prison sentence because of the crack retroactivity,” said Kevin Ring, president of FAMM, a nonprofit dedicated to opposing mandatory minimums and advocating for criminal justice reform. “That’s 20,000 prison years that were eliminated and 91% of those were for Black people. That’s a lot of misery averted because of a reform that was made retroactive.”
A Matter of When, Not a Matter of If
Despite this progress, the disparity persisted, and there simply weren’t enough members of Congress interested in closing the gap. That changed after the murder of George Floyd by a Minneapolis police officer. Floyd’s death sparked nationwide calls for reforming the criminal justice system. Advocacy groups made eliminating the disparity a target for change. More lawmakers came to recognize how inequalities in the legal system perpetuated injustice and racial discrimination.
“In light of the death of George Floyd and the response from across America to that, it’s got a lot of lawmakers thinking that systemic issues are really hard to solve,” said Heather Rice-Minus, senior vice president of advocacy for Prison Fellowship, a Christian nonprofit pushing for criminal justice reform. “Understanding that there are these massive disparities can feel overwhelming, but they recognize, ‘Here’s something tangible I can do.’”
Harris described the EQUAL Act as “the first bill in this series that’s made any kind of sense.”
“I’m particularly proud of this bill because it hasn’t been driven by celebrities or one particular politician,” she said. “It truly has been a coalition effort that has included law enforcement for the very first time.”
In the House, nearly 77% of Republicans and 100% of Democrats supported the legislation. Co-sponsors crossed the political spectrum, from Texas Republican Louie Gohmert on the right to Michigan Democrat Rashida Tlaib on the left. In the Senate, the bill already has bipartisan cosponsors, including Democratic Sen. Cory Booker of New Jersey and Republican Sen. Thom Thillis of North Carolina.
“I think it’s a matter of when, not if this passes,” said Ring. “We still have some challenges but I think this is an idea whose time has come. I think people realize there’s no justification for the disparity.”
The challenges will include winning over senators who may be afraid to appear “soft on crime” or who may be spooked by the recent fentanyl overdose crisis. But Harris pointed out that many unlikely supporters, from law enforcement to Arkansas Gov. Asa Hutchinson, a Republican, want to eliminate the disparity.
“This disparity is very well known, everyone knows it’s racist, and to not support this exacerbates the divide between the Black community and law enforcement,” said Hutchinson, who served as administrator of the U.S. Drug Enforcement Administration under President George W. Bush.
Soto Stanton said she is hopeful the Senate will recognize that the time has come to eliminate the overt racism from drug sentencing.
“If you look at the numbers and the statistics, a lot of Black and Brown families and communities have been impacted by this disparity,” she said. “Now is the time to make a change. Let’s repair the mistakes or the decisions that we’ve made in the past. Give us a second chance so that we can be reconnected with our families so we don’t continue this lifecycle of families being separated and children being raised by just one person.”