Biden can correct his ‘profound mistake’ through clemency for people with crack convictions

We are a nation of second chances. We believe people are not defined by their mistakes, but are capable of changing and learning from past mistakes. This is true both for the most powerless among us and the most powerful among us, including the president.

As the president, Joe Biden has the power to give people second chances through executive clemency — allowing him to release people from prison and to pardon those who’ve been convicted of a crime. In turn, the president has the opportunity for his own second chance. 

When Biden was Delaware’s senator, he helped author the bipartisan bill that established the crack cocaine and powder cocaine sentencing disparity — one of the most intractable, punitive and overtly racist policies to come out of the War on Drugs.

The 1986 Anti-Drug Abuse Act infamously treated small amounts of crack with the same severity as large amounts of powder cocaine. To put it into numbers, a person convicted of possessing 5 grams of crack — the weight of a nickel — faced a sentence similar to a person convicted of possessing 500 grams of powder cocaine — approximately the weight of a 350-page hardcover book. These drugs are chemically identical — the disparity based on science fiction and panic has driven enormous racial disparities and ruined thousands of lives. 

Kimberly McDowell’s story is just one example of how these sentencing policies devastated families and communities — a story we highlighted in a 2006 report about the devastating impact of the 100:1 disparity. 

A relative of Kimberly’s friend testified that Kimberly and 18 others were part of a crack cocaine drug conspiracy in order to reduce his own sentence. After being threatened with a lengthier sentence, Kimberly took a plea deal. She knew what her friends were doing, but was not a participant. She did not know she would be held accountable for the sale of 80 grams of crack. Kimberly was sentenced to 10.5 years, a fraction of the time she likely would have received for powder cocaine. Unable to find a family member to take care of her two children, they went to live with her friend. Kimberly sent the 23 cents per hour she earned from her prison job to support her kids.

This 100:1 disparity lasted until 2010 — nearly a quarter century — when Congress passed the Fair Sentencing Act, and reduced the disparity to 18:1. There it stubbornly remains. Congress came close to passing the bipartisan EQUAL Act, which would have ended the disparity, but the effort stalled in the Senate. 

In response, Attorney General Merrick Garland issued a directive to federal prosecutors to stop charging crack and powder cocaine differently — an action the ACLU praised. But it remains only a step — the directive is in place while Merrick Garland is the attorney general, and it doesn’t change anything for those who already have been prosecuted and convicted under the disparity.

For almost four decades, communities across the United States, primarily Black communities, have been oppressed by this unscientific and fundamentally racist policy. Twenty years ago, the ACLU published a factsheet detailing the racialized harm of the War on Drugs, noting that “by 2001, over 80% of federal crack defendants were black.” In 2020, the US Sentencing Commission found little had changed: 77 percent of federal defendants convicted of crack cocaine offenses were Black, and still subject to harsher sentences than people convicted of powder cocaine offenses. 

By any measure, the War on Drugs has been a catastrophic failure, and decades later, we have consensus around this fact. Eight out of ten voters believe the War on Drugs has failed. Scientists, medical professionals and advocates on the left and right agree. 

Significantly, President Biden has changed his mind, too. He supported passage of the EQUAL Act to end the crack and powder cocaine disparity and even called the disparity “a profound mistake.” 

The ACLU applauded the president for embracing clemency, redemption and making amends for past wrongs when he took the bold step of providing pardons to those with federal marijuana possession convictions. “Too many lives have been upended because of our failed approach to marijuana. It’s time that we right these wrongs,” said the president in a statement announcing his clemency action. The same is true of our failed approach to crack.

The ACLU is calling on President Biden to use his clemency power to commute the sentences of thousands of people still in federal prison because of the crack sentencing disparity. We can’t wait another two decades or even another year to end this injustice. The president can do it now with the stroke of his pen.

President Biden can continue the healing work he began with the marijuana pardons by taking this additional step for those with federal crack convictions.

President Biden has the power to begin to right the wrongs the failed War on Drugs has caused to thousands of people, our families, our communities and move our nation forward on a path grounded in justice, equity and redemption. 

Through clemency, President Biden has the power to correct this profound mistake and redeem himself. We all deserve second chances, including the president.

Cynthia W. Roseberry is Acting Director of ACLU’s Justice Division.