“The current disparity is not based on evidence, yet has caused significant harm for decades, particularly to individuals, families and communities of color,” LaBelle testified. “The continuation of this sentencing disparity is a significant injustice in our legal system, and it is past time for it to end. Therefore, the administration urges the swift passage of the ‘Eliminating a Quantifiably Unjust Application of the Law Act.’ ”
For Biden, supporting the bill is a follow-through on a campaign promise and a step toward fulfilling it. As a candidate for president in 2020, Biden pledged to support eliminating the sentencing disparity, which critics have said unfairly hurts African Americans. But he did not always feel that way. As a senator in 1986, Biden crafted the bill that enacted steep differences in sentencing. He disavowed it 16 years later.
The law Biden spearheaded mandated a five-year minimum sentence for trafficking in 500 grams of powder cocaine or 5 grams of crack. The disparity has been known as the “100-1 rule.” In 2010, the sentencing disparity was narrowed from 100-to-1 to 18-to-1. Many activists and lawmakers have long argued in favor of closing that gap, and Biden, in his final years in the Senate, introduced legislation to do so.
In an odd-couple pairing, Durbin partnered with then-Sen. Jeff Sessions (R-Ala.), who later served as President Donald Trump’s first attorney general, on the 2010 law that dramatically narrowed the sentencing disparity. This latest legislation eliminates the remaining disparity altogether.
The disparity “has no basis in science. It’s done nothing to make us safer. It serves only to undermine trust in our system of justice — especially among Black Americans, who are six times more likely to be imprisoned on drug charges than White Americans, even though the drug use is at a similar rate between them,” Durbin said at the hearing.
Biden’s shift reflects broader changes in the way elected officials have talked about drug offenses and criminal justice over time. The movement has been especially apparent in the Democratic Party. During the 2020 presidential primary, Biden faced sharp criticism from some activists for spearheading a 1994 crime law that has come to be seen broadly in the party as overly harsh, particularly to communities of color.
Since then, Biden has walked a careful line on criminal justice and police issues that embraces some calls for change but stops short of others. For example, he supports decriminalizing marijuana but not legalizing it.
Outside coalitions backing Durbin and Booker’s bill have focused particularly on shoring up conservative support as part of their larger criminal justice overhaul agenda.
To that end, one of the witnesses testifying in favor of the bill Tuesday is Gov. Asa Hutchinson of Arkansas, a Republican who led the Drug Enforcement Administration under President George W. Bush.
“The sentencing disparity is unfair,” Hutchinson testified, “and undermines confidence in our criminal justice system.”
Russell Coleman, a former counsel to now-Senate Minority Leader Mitch McConnell (R-Ky.) and former U.S. attorney for the Western District of Kentucky, will also promote the legislation at the hearing Tuesday morning.
The issue of cocaine sentencing was the subject of a recent high-profile legal battle. The Supreme Court ruled unanimously this month that a bipartisan Trump-era law intended to open a path for new sentences for people convicted under severe crack cocaine statutes does not apply to those with low-level possession convictions.
Holly Harris, president and executive director of the Justice Action Network, told The Post that the White House endorsement of the legislation was “remarkable.”
“When those on the front lines battling drug abuse and violence stand up to support reform, lawmakers on both sides of the aisle should listen to them,” she said in a statement to The Post. “We urge leadership in both chambers to prioritize this legislation, end this decades-long injustice, and help law enforcement build trust with the communities they serve.”
A White House spokesman did not have any immediate comment.