On Tuesday, the Biden administration announced support for a bill that would end the sentencing disparity in certain drug offenses. The Biden-Harris administration strongly supports eliminating the current disparity in sentencing between crack and powder cocaine. The current disparity is not based on evidence that has caused significant harm for decades, particularly for individuals, families, and communities of color. The continuation of the sentencing disparity is a significant injustice in our legal system, and it's past time for it to end. Therefore, the administration urges the swift passage of the eliminating a quantifiably unjust application of the Law Act or the Equal Act.
The Equal Act would also give people who were convicted or sentenced for a federal cocaine offense a re-sentencing. But here's the thing. The sentencing disparity between crack cocaine and powder cocaine offenses exists largely because of the person who's endorsing their reform, President Biden. In 1986, it was Biden as a senator who crafted the very bill that enacted these differences. In the early 90s, Biden spearheaded a crime bill that's come to be seen by many as overly harsh to communities of color. We must take back the streets. It doesn't matter whether or not they're the victims of society. The end result is they're about to knock my mother on the head with a lead pipe, shoot my sister, beat up my wife, take on my sons. So I don't want to ask.
What made them do this? They must take Biden's endorsement of the Equal Act to undo some of what he set in motion in the 80s and 90s is the latest evidence that the president has evolved on criminal justice since his time in the Senate. But how far has he come? What factors are contributing to Biden's latest decisions on criminal justice reform? And what can we expect next? This is Can He Do That, a podcast that explores the powers and limitations of American government in a time of deep division. I'm Alison Michaels.
Well, effectively, what this legislation does is it ends a disparity that a lot of activists and a lot of members of Congress in both parties have said should not exist, have said is outdated and have said is discriminatory to people of color. Sean Sullivan is a White House reporter for The Washington Post. I asked him about the details of what's in the Equal Act. And so what this law would do is totally eliminate the disparity that we see between the sentences people get for federal drug offenses related to crack cocaine. and drug offenses related to powder cocaine. So effectively, it would end the disparity and they would be treated equally. The second thing that this would do is it would allow people who had been sentenced under the old law to now qualify for resentencing. So if you were convicted of a federal drug offense under the old law, you're serving a sentence right now. If this law gets enacted, you can go back and you can apply for resentencing. So those are the two main things that this would do. And just to lay this out, why were sentences different for crack cocaine and cocaine? Well, when you go back to the 80s and you look at the way that...
Lawmakers in both parties treated drugs. And we saw this war on drugs, a really, really aggressive attempt by people in both parties to combat drug use. And crack cocaine at the time was seen not just by lawmakers in Washington, but by activists on the outside, experts consulted on this as a big problem and one that they wanted to combat. Drug use extracts a high cost on America, the cost of suffering and unhappiness, particularly among the young, the cost of lost productivity of the workplace and the cost of drug-related crime. Drug use is too costly for us not to do everything in our power, not just to fight it, but to subdue it and conquer it. There's no moral middle ground. Indifference is not an option. We want you to help us create an outspoken intolerance for drug use. For the sake of our children, I implore each of you to be unyielding and inflexible in your opposition to drugs. It hurts to use them. It hurts his family. And it hurts his friends. I just want to shake some sense into you kids that are using drugs and think about you. So remember.
What this law did was it enacted what became to be known as the hundred to one rule because it referred to this disparity that we're talking about between powder cocaine sentences and crack cocaine sentences. And basically what the law was saying is we're going to treat people who are prosecuted for 500 grams of one type of this drug the exact same way as we're going to treat people who have been convicted for five grams of this other type of drug. Now that has been narrowed over the years, but it's not zero. And now. people want to see a complete parity. So on the campaign trail, he promised to eliminate sentencing disparity, and he seems to be taking steps for doing that here with the Equal Act. But the irony is that Biden, as a senator in the 80s, fell differently and in fact crafted legislation that contributed to these very disparities in the first place. So what did that legislation from 1986 do? Well, what that legislation did, and it's important to know that Biden did indeed play a leading role in this, it also shows you how long he's been in government. This is a decades-old law.
And he was a senator back then. He was in the middle of this. And he's been in the middle of a lot of big decisions like this over the years. And Biden has said recently that he listened to experts at the time who told him that cracks should be treated differently. He has since changed his views on that. A large portion of the country, including members of Congress and other politicians, have also changed their views on that. Why was then-Senator Biden so tough on crime? What's this about?
Well, if you go back to the thinking over the years, it wasn't just Biden. You see a lot of members of both the Democratic Party and the Republican Party take a very, very different attitude on crime than you've seen them take in recent years. Across the board, the so-called war on drugs is not something that we see used today in the way that it was used in the 1990s. The way that kids are educated about drugs in school is very different today than it was in the 1990s. growing up in the 90s and participating in the DARE program. DARE, yes. It was a very different time in terms of the attitudes. Are you going to make the changes on the crime bill? Oh, crime bill, hell. We've got crime bills coming out of our ears. We've got to do it, just pass this now, add it on to an appropriations bill, and get it done. Bam, bam, bam. Those attitudes have changed. The way that the public has come to view substance abuse has changed. The way the attitudes that have developed about how these laws affect different communities, how they affect people of color has also changed. So we're in a whole new place right now.
where the debate we're having is very, very different than what we were having in 1986 or even 1996. Back then, the focus primarily and the debate in Congress and in Washington centered primarily, look, what can we do to reduce crime? What can we do to reduce drug use? We want to find deterrence. And so that led to the advent of a lot of these laws that by today's standards, in the views of a lot of people, were seen as overly harsh and outdated.
So we've talked about legislation that Biden contributed to in 1986, but that general approach of his continued in 1994 when he then took further steps, further legislative steps, in terms of criminal justice reform. So what was that 1994 legislation, the Violent Crime Control and Law Enforcement Act? So many critics of the 1994 crime law that has come to be seen as very controversial in the years since it was enacted point to the fact that, in their view, it led to greater incarceration of people of color, of African-Americans, African-American men. And they felt that this was a law that unfairly treated communities of color and was overly harsh in the way that it... affected communities of color. So one of the most interesting laws that's talked about as part of President Biden's legacy is the 1994 crime bill. And there's a broad academic debate about whether that law helped kick off mass incarceration, whether it sort of came in the middle of it and supercharged it, or whether it just sort of was part of the trend itself. That's Ames Grower. I'm senior counsel in the justice program at the Brennan Center for Justice. Ames works on research for the Brennan Center that looks at the connection between mass incarceration and poverty. I asked Ames to tell me about the impact of these 80s and 90s crime bills and how Biden has since evolved on criminal justice.
I think it had some very real effects on state incarceration. It certainly encouraged states to adopt more punitive sentencing. It provided funds for prison construction. But there's a sense in which this is also sort of a symbol of the era. Like if you were to point to sort of symbolically what is a very clear emblem of mass incarceration, I think the 1984 crime bill sort of stands out as part of that tradition. And why is that?
It was a major federal response to a major problem catalyzed by support from sort of all quadrants of society. It was on the bus bill that included everything from police funding to the elimination of a pill grant eligibility for people in prison to grants to finance the construction of prison. So legislation like that tends to stick out in the mind, separate and apart from what effects it had on policy as well. So then when did we start to see that change with the president, with President Biden? When did he change his tough on crime stance?
Definitely during the Obama administration is when that probably became most publicly visible. The Obama administration took up a number of major criminal justice reform initiatives, from broad use of the clemency power to help people convicted of lower-level nonviolent drug offenses, to supporting the Fair Sentencing Act, and President Biden stood by then-President Obama's side throughout those reforms. I think there are a number of people who come quite honestly to the belief that policies that they supported in the past simply are not working as expected. I haven't always been right. I know we haven't always gotten things right. But I've always tried.
Rev, it was your help back in 2010 that Barack and I finally reduced the disparity in sentencing, which we've been fighting to eliminate in crack cocaine versus powder cocaine. It was a big mistake when it was made. We thought we were told by the experts that crack, you never go back. It was somehow fundamentally different. It's not different. But it's trapped an entire generation.
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It's important to remember the historical context when it comes to crime, for example. We are in a very different place today than we were in 1990 when it comes to crime and just the state of the country as a whole. In New York City, for example, in 1990, 1991, I think, there were over 2,000 homicides in the city. And remember, the city is smaller than it is today. And last year, homicides rose significantly in New York, but still were around 400. So we've had a significant decline in crime in major cities and communities of all sizes and really across the country. I think there was a real sense at the time of the 1994 crime bill that something had to be done, and the solutions that were at hand were policing and incarceration. I certainly would not want to discount the effect of race on helping influence policymaking.
I think that helps explain one of the reasons why we got the disparity between crack and powder cocaine that we're now hoping to see undone with the Equal Act. We should remember, too, that the past is a foreign country. I can't remember exactly who said that, but I think it's very true. It was a very different time in the 1990s. We now have more data, more knowledge, and are in a very different landscape so we can contemplate better ways to address public safety while building a more just society. But to be clear on violent crime, so yes, it's less now than it was in the 80s and 90s, but we have seen a recent uptick in some of our major U.S. cities. So does it seem like Biden has lessons learned from his ways to combat crime in the 80s and 90s that he is going to apply today as he tries to combat what is now lesser numbers but still an uptick in violent crime? It's been really interesting to see some of the Biden administration's policy commitments lately.
Just Wednesday, we saw the Biden administration roll out a major new initiative headlined as anti-crime. And a solid first half of it is about gun violence. And I think that's correct. You know, a major contributor that a lot of scholars agree led to last year's crime increase was an increased availability of handguns. So it's good and correct to see the Biden administration leading with that. But as you scroll down that document, you sort of see how much the administration's thinking has changed since the 1990s or so. Among other things, the administration pledges to expand its hiring of formerly imprisoned people. It pledges to encourage employers to hire more people who have a criminal record. It promises investments in community policing. It provides that American Rescue Plan dollars can be spent on community policing.
And they announced a major new initiative working with community anti-violence programs. And all of these are billed, top to bottom, as public safety related. I very much believe that helping ensure that people with a criminal record are able to find good jobs and are able to have a real, in quote, second chance, I very much do believe that is a public safety imperative. Not every policymaker does. I think it's really important and really good news to see the administration embracing that idea. For folks at home, the American Rescue Plan, which is a once-in-a-generation investment to reduce violence in America, is available.
I'm proud of it. It means more police officers, more nurses, more counselors, more social workers, more community violence interrupters to help resolve issues before they escalate into crimes. It means we go after the people who flood our streets with guns and the bad actors who decide to use them to further terrorize the communities. It means saving lives. And Congress should in no way take away this funding. It's already been appropriated. What are the lessons then that we can learn from these bills that have been applied to legislation today or more recently?
One of the more interesting things about criminal justice policy these days is you have a lot of people who have been members of the policymaking community for 20, 30 years and have seen the sort of ebb and flow of the policies that underwrote mass incarceration. And so you see people who have really learned from them and said this didn't work. We should try something else. The 94 Crime Bill is emblematic of that because you will see many people, including now President Biden, who were strong supporters of legislation at the time and members of affected communities who were very strong supporters of it at the time, now saying, well, we didn't reckon with the collateral consequences. We didn't know how this would play out. And you know what? The research now shows that prison is not the only or even best way to combat crime. So now we need to try something else. It's very good for policymakers to be able to have that.
flexibility and to rethink what didn't work and to try new solutions. That's emphatically what we need these days, especially when talking about crime and incarceration. So it seems like we're seeing some of this flexibility when it comes to Biden's embrace of the Equal Act. But do you think that's true? What kind of statement does support for this bill make about Biden's pledge for criminal justice reform? The administration is deciding to support the Equal Act. It's a huge sign of just how far we've come on these sorts of policy discussions. For one, because it would eliminate the disparity between the sentencing of crack and powder cocaine.
I think a really interesting part of the bill as well is the bill provides for relief for people who have already been sentenced. That sort of retroactive relief is sometimes off the table. Some people who would call themselves supporters of the criminal justice reform movement are not always on board with those sorts of retroactive relief provisions. That the Biden administration would embrace the bill, including those parts, I think is a real sign that They've decided that not only is this the way forward, but we need to do justice by people who are sentenced under these unjust laws. That's a really strong commitment. However, I do want to say that we have great expectations of this administration when it comes to criminal justice reform. They have not necessarily always lived up to them. And admittedly, the administration's only been in office for going on six months now. But there's a lot of work that could have been done in that period that hasn't been done yet that we hope will be done in the years to come. It's very good to see support for policies like the Equal Act. It would be better to see that enacted and to see President Biden signing it behind the resolute desk. What would be best would be to see that as part of a holistic commitment to criminal justice reform that the president can actually lead on. And activists would say he hasn't done that.
that yet. He's not quite gone far enough. Yes, that's right. I think among some other things we're looking for from the administration, the Brennan Center has written extensively about the need to reform the federal clemency system. So the way that system works now is applications for a pardon, for example, wind their way through multiple layers of review in the Justice Department before winding up on the president's desk of the recommendation.
The recommendation is almost always to deny relief, unfortunately. What we and other advocates and other researchers propose is recentralizing that process in the executive office of the president and having decisions about the use of the clemency power made between groups of experts offering informed opinions about everything from sociology, criminology, victims' rights, everything, so that the president can make an informed decision. By providing that sort of more holistic review of every clemency application, we would expect, and indeed we see in states that have similar systems, we see higher grant rates. This is something the Biden administration could do immediately. We've seen the administration talk some about echoing the sort of broad use of the clemency power that President Obama did. That was one of his campaign promises. But we've not seen that sort of systematic...
overhaul of the clemency power that the administration could do any day if it wanted to. You've laid out a lot of different plans, a lot of different ways that they can make an impact. But say I come back to you three and a half years from now, what outcomes do you want to see from some of these policies put in place? What we're looking to see years down the line is to have a federal criminal justice system that not only doesn't incarcerate as many people, is not only less plagued by racial disparities, but has more points for mercy and for consideration of when a sentence. has gone on long enough. The federal clemency power could be a more regular part of the federal justice system, a natural corrective to overly punitive instincts of, say, a federal prosecutor in a certain district. It is currently not. It is currently the exception rather than anything resembling the rule. I'd like to see that a more regular part of the system. There are also some really interesting things we learned from the COVID-19 pandemic. We saw the federal prison population drop significantly during the pandemic and then rebounded.
We saw a broader use of the home confinement program that has transferred people from federal prison to supervision in their own homes. With remarkable success, people who were transferred under this sort of expanded COVID-19 home confinement program were very unlikely to commit a new crime. I think there are literally a handful of cases where it actually happened. And yet that program is not going to be permanent. I would like to see us...
learn something from programs like that and ask ourselves, you know, if we were able to run a broader home confinement program during the pandemic, what's stopping us from doing that every day of the week? I'd also like to see the instinct that President Biden showed in the anti-violence program that I described of classifying economic opportunity for people with a criminal record as a public safety issue. I'd like to see that instinct broadly shared by a number of policymakers. I think there is a sort of bipartisan acknowledgement of that issue, but it's not as broad as it could be. I'd like to see the conversation change around that and the White House can certainly lead the way. But support from the White House, as we know in Washington, can only go so far.
I went back to Sean Sullivan to look at the prospects for the Equal Act passing through Congress and reaching the president's desk. There's a very, very long road from a bill getting supported by prominent people on Capitol Hill and in the White House and a bill becoming law. And we've seen that this week play out in a separate debate on voting rights. So this bill would need to gain passage in the Senate and the House. The Senate has a pretty high threshold right now that is hard for Democrats to cross without Republican support. You need 60 votes for most legislation. So it's not clear yet where this goes or whether it becomes law eventually, but it certainly is a step in the direction.
of moving toward passage. And that's the way that advocates of this view it, because having the president weigh in is certainly a big step. And they see this as a rare area, potentially, of bipartisan compromise, the fact that you have high-profile Republicans supporting this and high-profile Democrats supporting this. You can't really say that about a lot of things being floated in Congress right now. So that's something that it has going for it, but it's unclear whether this becomes a big enough priority, whether this ultimately gets to the president's desk anytime soon. All right, well, we'll keep an eye on it. Thank you so much, Sean. Thanks, Alison.
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