It’s Never Too Late for Justice
By: Famm Foundation
Tags: Congress, Equality, Racism, Famm, Prison Reform

By Molly Gill

In 2011, I received an unexpected request from the Maryland Correctional Institution for Women, near Jessup, Maryland. The call was from the prison administrator: Would FAMM be willing to visit the prison and tell 40 women about recent retroactive reforms to federal crack cocaine sentencing guidelines and how to seek a resentencing?

FAMM happily agreed to the request. Our then-director of federal legislative affairs, Jen Seltzer-Stitt, and I drove to Jessup, armed with factsheets to share with the women.

These 40 women were not Maryland state prisoners. They were convicted in federal courts but serving their time in a state facility. Sometimes the Bureau of Prisons will house federal prisoners in state prisons, especially if facilities are overcrowded, like they were in 2011. These 40 women were from all parts of the country, but serving their time in a facility where no one knew anything about the federal laws they were sentenced under, or how those laws had recently changed.

Crack sentencing laws have a long and complicated history. On October 27, 1986, Congress created mandatory minimum sentences for drug offenses involving crack and powder cocaine. Even though crack and powder cocaine are the same drug, Congress punished them very differently. Selling five grams of crack cocaine gave a person the same sentence as someone who sold 500 grams of powder cocaine. That difference became known as the 100:1 disparity. In 2010, Congress passed the Fair Sentencing Act and changed the disparity to 18:1, but this change was not made retroactive until 2018.

Even though Congress did not make the new 18:1 disparity retroactive in 2010, the U.S. Sentencing Commission did make some changes to federal crack sentencing guidelines in response to the new law. The Commission also decided to allow people to go back to court to seek a new sentence under those revised guidelines. Understandably, the Commission’s decision generated a lot of excitement, rumors, and confusion in federal prisons.

FAMM and the federal public defenders began educating the tens of thousands of people in federal prisons about who might be eligible to ask for a reduced sentence. But these 40 female federal prisoners we visited at the Jessup state facility could not access any of that information.

We met the women at Jessup and explained what the new guideline changes meant and how to get in touch with the federal public defenders, who were helping many people get back into court. What I remember most about the day was how crowded, loud, and chaotic things were at the prison. Women milled through the halls and in and out of our classroom; announcements blared out over the intercom constantly. I was struck by how lonely these 40 women must feel, stranded outside the federal prison system with no one to help them get back home.

I didn’t know it that day, but FAMM’s new spokesperson, Gwen Levi, was among the women we spoke with in that classroom. She remembers the day clearly, even though I don’t remember her specifically.

I’m sharing this story because the injustice of the crack-powder sentencing disparity persists. This week, the U.S. House Judiciary Committee passed the EQUAL Act (H.R. 1693), a bill that would finally eliminate the disparity between crack and powder cocaine entirely. The bill would make that reform retroactive, too, allowing people serving sentences based on the 18:1 disparity to seek resentencing in federal courts.

Congress must take the next steps and pass this bill as soon as possible, and President Biden should sign it into law this year. October 27, 2021 will be the 35th anniversary of the crack-powder disparity legislation — the date is unforgettable to me because it is also my birthday. A whole generation of people — mostly Black people — have been sentenced under a law that is a stain on our justice system. The disparity was unfair and unjustifiable when it was 100:1. It’s unfair and unjustifiable at 18:1.

And it is never too late to do the right thing.

Help FAMM end the crack-powder sentencing disparity by asking your members of Congress to pass the EQUAL Act.

Molly Gill is FAMM’s Vice President of Policy.