Democrats urge Biden to commute sentences of people affected by cocaine sentencing disparity

WASHINGTON — Lawmakers urged President Joe Biden in a letter Monday to commute the sentences of people who are affected by disparities in sentences for offenses involving crack and powder cocaine.

“I believe that this president has definitely shown himself to be someone that is willing to listen and willing to learn and decide that he would do something within his power,” said Rep. Jasmine Crockett, D-Texas, who led the effort.

Twenty Democratic lawmakers signed the letter, which was shared first with NBC News. They included Sen. Cory Booker, of New Jersey, and Reps. Pramila Jayapal, of Washington, and Maxine Waters and Barbara Lee, of California. Washington, D.C.’s delegate to Congress, Eleanor Holmes Norton, also signed it.

People convicted of possessing crack cocaine have historically been sentenced far more severely than if they had had the same amount of the drug in a powder form.

The sentencing disparity “caused disproportionate harm to communities of color,” the letter said.

The U.S. Sentencing Commission estimated that more than 3,000 people “would be eligible for immediate release if crack cocaine was sentenced the same as powder cocaine,” according to the letter. More than 5,000 more people would be eligible for reduced sentences, the letter said the commission estimated.

The White House and the Trump transition team did not immediately respond to NBC News’ request for comment.

In 2022, Attorney General Merrick Garland issued guidance that federal prosecutors should advocate for sentences consistent with powder cocaine guidelines, not those for crack cocaine. The move effectively closed the disparity in federal sentencing between the two forms of the drug.

Lawmakers, though, are urging Biden to use clemency powers to commute sentences of people affected by the sentencing disparity before Garland’s guidance.

“I am hoping that we can go retro and recalculate and get those sentences and help out those people that were not the beneficiaries of getting, say, caught up a little later and getting caught up during this particular administration,” Crockett said in an interview.

Crockett, who is leading the letter’s efforts, explained why she wanted to organize the letter for Biden’s last few weeks in office, during the lame duck period.

“Knowing that the transition had been made to Vice President Harris as the nominee, I thought this isn’t something that I necessarily want to try to get her to do coming in, but this is a great kind of out-the-door type of thing,” Crockett said. She said that she met with Garland to discuss her goals and that he signaled support.

The sentencing disparity stems from a 1986 law, which led to people who were convicted of possessing crack cocaine being sentenced the same as people who possessed 100 times the same amount of powder cocaine. The Fair Sentencing Act of 2010 lowered the ratio from 100-to-1 to 18-to-1, which the U.S. Sentencing Commission argued “reduced the disparity between crack and powder cocaine sentences, reduced the federal prison population, and appears to have resulted in fewer federal prosecutions for crack cocaine.”

Eight years later, Congress passed a law allowing the 2010 ratio to be implemented retroactively for people who were sentenced before it went into effect. The 2018 law, signed by then-President Donald Trump, allowed thousands of nonviolent offenders to end their sentences earlier than they anticipated.

Lawmakers have sought to codify eliminating sentencing disparities with the introduction in 2021 of the EQUAL Act, which the Biden administration has expressed support for. The bill, which was re-introduced last year after the 2021 legislation stalled in the Senate, would end the cocaine disparity.

The 2021 version of the EQUAL Act passed the House with broad bipartisan support: 26 of the 56 co-sponsors were Republicans, including Reps. Nancy Mace, of South Carolina, Dan Crenshaw, of Texas, and María Elvira Salazar, of Florida.

However, the 2023 bill has not yet passed the House.

The letter to Biden argued that as Congress continues working to pass the EQUAL Act, “we recognize the unique power vested to you that can right the wrongs of our criminal justice system and build on your legacy of ensuring equitable and restorative justice.”