Drug sentencing bill is in limbo as politics paralyze Congress
WASHINGTON — The Equal Act would appear to be a slam dunk even in a badly divided Congress.
The legislation, which aims to end a long-standing racial disparity in federal prison sentences for drug possession, passed the House overwhelmingly last year, with more than 360 votes. It has been enthusiastically embraced on the left and right and by law enforcement as a long-overdue fix for a biased policy. It has filibuster-proof bipartisan support in the Senate and the endorsement of President Joe Biden and the Justice Department.
Yet with control of Congress at stake and Republicans weaponizing a law-and-order message against Democrats in their midterm election campaigns, the fate of the measure is in doubt. Democrats worry that bringing it up would allow Republicans to demand a series of votes that could make them look soft on crime and lax on immigration — risks they are reluctant to take months before they face voters.
Even the measure’s Republican backers concede that bringing it to the floor could lead to an array of difficult votes.
“I assume the topic opens itself pretty wide,” said Sen. Roy Blunt, R-MO., who became the 11th member of his party to sign onto the Equal Act, giving its supporters more than the 60 votes needed to overcome procedural obstacles.
Given the calendar, virtually any legislation that reaches the floor is bound to attract trouble. Even consensus measures are at risk unless enough supporters in both parties agree to band together to reject politically difficult votes that could lend themselves to 30-second attack ads — the kind of deal that grows more difficult to reach each passing day.
There are exceptions. A request by Biden this past week to send an additional $33 billion in aid to Ukraine to bolster the war effort is expected to draw broad bipartisan support and little dispute. Democrats are still hopeful they may be able to salvage pieces of a hulking social safety net and climate package under special rules that allow them to move forward without Republican support. But that, too, could require a series of votes orchestrated by the GOP to make Democrats squirm.
“What’s hurting bipartisanship is that even when there’s
enough Republican support to pass a bill, the hard-right militants sabotage it to score political points, and gridlock prevails,” said Sen. Chuck Schumer, D-N.Y., the majority leader. “But there’s always hope that cooler heads prevail, and occasionally they do.”
Backers of the Equal Act and other criminal justice legislation said they hoped that was true for them. They insist that they can still get their bill passed this year and that opposition will backfire politically.
“This is a real opportunity for bipartisan achievement to eliminate one of the worst vestiges of injustice from American drug policy,” said Holly Harris, president and executive director of the Justice Action Network and a leading proponent of criminal justice changes. “Those who seek to thwart this opportunity for 15 minutes of fame, five minutes of fame — I don’t think that’s going to be rewarded by voters.”
In a letter to Senate leaders, Harris’ group and about 50 law enforcement, progressive and conservative organizations urged them to quickly take up the legislation, saying that “we cannot miss this moment to right this decadeslong wrong.”
The legislation would eliminate the current 18-1 disparity in sentencing for crack cocaine versus powder. The policy that can be traced to the “war on drugs” mindset of the 1980s, which treated those trafficking in crack cocaine more harshly. It resulted in a disproportionate number of Black Americans facing longer sentences for drug offenses than white Americans, who were usually arrested with the powder version.
As a senator, Biden was one of the champions of the policy; it has since become widely discredited, and he has disavowed it.
The U.S. Sentencing Commission has said that passage of the legislation could reduce the sentences of more than 7,600 federal prisoners. The average 14-year sentence would be cut by about six years, it estimated.
Although Schumer endorsed the legislation in April, he has not laid out a timeline for bringing it to the floor. Democrats say he is giving backers of the bill a chance to build additional support and find a way to advance the measure without causing a floor fight that could take weeks — time that Democrats do not have if they want to continue to win approval of new judges and take care of other business before the end of the year.
“Getting the opportunity is the challenge,” said Sen. Dick Durbin, D-ill., one of the original sponsors of the legislation. “We just don’t move many free-standing bills which involve some controversy.”
Its supporters say they recognize the difficulties but believe it is the single piece of criminal justice legislation with a chance of reaching the president’s desk in the current political environment.
“Of all the criminal justice bills, this is the one that is set up for success right now,” said Inimai Chettiar, federal director for the Justice Action Network. “It is not going to be easy on the floor, but I think it is doable.”
The problem is that the push comes as top Republicans have made clear that they intend to try to capitalize on public concern about increasing crime in the battle for Senate and House control in November.
The legislation encountered another complication Thursday, when Sens. Chuck Grassley of Iowa and Mike Lee of Utah, two top Republican supporters of the previous criminal justice overhaul, introduced a competing bill that would reduce — but not eliminate — the sentencing disparity between crack and powder cocaine. They said research showed that crack traffickers were more likely to return to crime and carry deadly weapons.
“Our legislation will significantly reduce this disparity while ensuring those more likely to reoffend face appropriate penalties,” said Grassley, the top Republican on the Judiciary Committee.
Sponsors of the Equal Act say they intended to push forward and remain optimistic that they can overcome the difficulties.
Harris said Democrats must recognize that Republicans would attack them as soft on crime regardless of whether they acted on the measure.
“They are fearing something that is already happening,” she said. “Why not dig in, stay true to your principles and do what is right for the American people?”