WASHINGTON — The Equal Act appears to be a slam dunk even in a ill-divided Congress.
The legislation to end a long-standing racial disparity in federal prison terms for drug possession passed by an overwhelming majority last year, by more than 360 votes. It has been enthusiastically embraced by the left and right and by law enforcement as a long-awaited solution to biased policy. It has filibuster-proof bipartisan support in the Senate and the approval of President Biden and the Justice Department.
But with control of Congress at stake and Republicans weaponizing a message of law and order against Democrats in their midterm campaigns, the measure’s fate is in doubt. Democrats worry that if they bring it up, Republicans could demand a range of votes, making them seem weak on crime and lax on immigration — risks they’re hesitant to take for months before confronting voters.
Even Republican supporters of the measure admit it could lead to a series of difficult votes.
“I assume the topic opens up pretty wide,” said Missouri Republican Senator Roy Blunt, who this month became the 11th member of his party to sign on the Equal Act, giving his supporters more than the 60 votes that he would have. necessary to overcome procedural obstacles.
Drug law is not the only bipartisan bill under pressure in the medium term. A multi-billion dollar Covid aid package has languished for weeks as Republicans insist that the measure’s consideration should include a vote on maintaining pandemic-era immigration restrictions that the Biden administration wants to lift.
Democrats are increasingly at odds with the government over its plan to abolish the public health rule known as Title 42. A vote would underscore those divisions and potentially open some of them to a politically difficult vote.
The uncertainty surrounding the bipartisan bills is a clear sign that if the legislation on Capitol Hill isn’t ready this year, that moment is fast approaching.
Given the calendar, just about any legislation that hits the floor is bound to pose problems. Even consensus measures are at risk unless enough supporters in both sides agree to work together to reject politically difficult votes that could lend themselves to 30-second attack ads — the kind of deal that’s getting harder to achieve every day.
There are exceptions. Biden’s request this week to send an additional $33 billion in aid to Ukraine to bolster the war effort is expected to garner broad bipartisan support and little disagreement. Democrats still hope they can salvage pieces of a colossal social safety net and climate package under special rules that will allow them to move forward without Republican support. But that, too, could require a series of votes orchestrated by the GOP to make the Democrats squirm.
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“What hurts the two parties is that even if there is enough Republican support to pass a bill, the far-right militants sabotage it to score political points, and the stalemate takes over,” said Democrat Senator Chuck Schumer. of New York and the majority leader. “But there’s always hope that cooler heads will prevail, and every now and then they do.”
Supporters of the Equal Act and other criminal law legislation said they hoped this would apply to them too. They insist they can still get their bill this year, and the opposition will backfire politically.
“This is a real opportunity for a two-pronged feat to eliminate one of the worst traces of injustice from U.S. drug policy,” said Holly Harris, the president and executive director of the Justice Action Network and a leading proponent of change in the justice system. criminal law. “Those who try to thwart this opportunity for 15 minutes of fame, five minutes of fame – I don’t think that will be rewarded by the voters.”
In a letter to Senate leaders this week, Ms. Harris’s group and about 50 law enforcement, progressive and conservative organizations urged them to swiftly pass the legislation, saying that “we must not miss this moment to to right decades of wrongs.”
The legislation would remove the current 18-to-1 disparity in crack cocaine versus powder convictions. The policy can be traced back to the ‘war on drugs’ mentality of the 1980s, which treated crack cocaine smugglers more harshly. It resulted in a disproportionate number of black Americans receiving longer sentences for drug offenses than white Americans, who were usually arrested with the powder version.
As a senator, Mr. Biden has been one of the policy’s champions; it has since been widely discredited, and he has denied it.
The U.S. Sentencing Commission has said passing the legislation could reduce the sentences of more than 7,600 federal prisoners. The average 14-year sentence would be reduced by about six years, it estimated.
Although Mr. Schumer approved the legislation in April, he has not set a timeline for bringing it up. Democrats say he’s giving proponents of the bill a chance to build additional support and find a way to move the measure forward without sparking a floor fight that could last for weeks — time Democrats don’t have if they get the approval of new judges want to keep winning and get things done before the end of the year.
“Getting the opportunity is the challenge,” said Senator Richard J. Durbin, an Illinois Democrat and one of the original sponsors of the legislation. “We just don’t move a lot of freestanding bills that bring some controversy.”
Supporters say they acknowledge the difficulties but believe it is the only piece of criminal law legislation with a chance of reaching the president’s office in the current political environment.
“Of all the criminal justice laws, this is the one that is set up for success right now,” said Inimai Chettiar, the federal director of the Justice Action Network. “It won’t be easy on the floor, but I think it’s doable.”
The problem is, the pressure comes as top Republicans have made it clear that they intend to capitalize on public concern about rising crime in the Senate and House battle for control in November.
The approach was evident in their attacks on Judge Ketanji Brown Jackson during her Supreme Court hearings last month, when they charged her with leniency in sentencing. Given the rise in crime and drug overdose, some Republicans say they also have doubts about the landmark First Step Act, a sweeping bipartisan law passed in 2018 that freed thousands from prison after their sentences were reduced in an effort to bring down mass crimes. to facilitate incarceration.
Kentucky Republican and minority leader Senator Mitch McConnell this week reiterated his criticism of Judge Jackson and attacked Biden for issuing his first round of pardons and commutations, including those convicted of drug offenses.
“They never miss an opportunity to send the wrong signal,” he said of the Democrats.
Senator Tom Cotton, the Arkansas Republican who led the opposition to the First Step Act, said he was in no mood to pass the Equal Act. He has said that if inequalities are to be eliminated, penalties for powdered cocaine should be increased.
“My opposition to the Equal Act will be as strong as my opposition to the First Step Act,” said Mr. cotton.
The legislation ran into a new complication Thursday when Senators Charles E. Grassley of Iowa and Mike Lee of Utah, two leading Republican supporters of the earlier criminal justice reform, introduced a competing law that would reduce inequality in sentencing between crack, but don’t take away. and powdered cocaine. They said research showed crack smugglers were more likely to return to crime and carry deadly weapons.
“Our legislation will significantly reduce this inequality and ensure that those who are more likely to reoffend receive appropriate sentences,” said Mr. Grassley, the top Republican on the Judiciary Committee.
Sponsors of the Equal Act say they intend to go ahead and remain optimistic that they can overcome the difficulties.
“We have a great bill and we have 11 Republicans and people want to get this done,” said New Jersey Democrat Senator Cory Booker, who is the main sponsor of the legislation. “I hope we get a chance to get this done now.”
Ms. Harris said Democrats must recognize that Republicans will attack them as soft on crime whether or not they act on the measure.
“They’re afraid of something that’s already happening,” she said. “Why not dig, stay true to your principles, and do what’s right for the American people? Maybe, just maybe, politics will wake up.”
