By Aamra Ahmad, Senior Policy Counsel, ACLU

This op-ed was originally published by The Hill.

Thirty-five years ago today, while the country was still reeling from the tragic death of Len Bias — a University of Maryland basketball star who, just days after being drafted by the Boston Celtics, died from a drug overdose — Congress passed and President Reagan signed into law the Anti-Drug Abuse Act. . Assuming that the drug that killed Len was crack, Congress drafted a law that would impose harsher penalties on crack offenses. It would impose the same mandatory prison sentence for five grams of crack cocaine as 500 grams of powder cocaine. Even after it became known that the drug that killed Len was powder cocaine, not crack, the narrative had taken off that crack is more dangerous than powder, and Congress established the 100-to-1 disparity between crack and powder cocaine in federal law.

Over the years, this sentencing disparity has become emblematic of both the ineffectiveness of reactionary criminal justice policy and the racial disparities existing in our criminal justice system.

After years of work by advocates, in 2010, Congress decreased the sentencing disparity from 100-to-1 to 18-to-1 through the passage of the Fair Sentencing Act (FSA). But those who were sentenced before 2010 were left behind until Congress enacted and President Trump signed into law the FIRST STEP Act, which provided relief to people sentenced under the original disparity. These reforms were motivated by what we know now — this disparity between two chemically identical substances has done nothing to improve public safety or reduce drug use, but it does disproportionately harm communities of color.

After the passage of the FIRST STEP Act and its provisions allowing individuals in federal prison to apply for resentencing, 3,705 people had their sentences reduced by approximately six years. The fact that 91 percent of those who received reductions were Black further proves the racially disproportionate impact of the crack laws.

But even after these bipartisan reforms, the disparate racial impact persists. In 2020, 77% of individuals convicted of crack cocaine offenses were Black, while historical data tells us that 66% of crack cocaine users have been white or Hispanic.

The continued existence of this disparity between two forms of the same substance has devastated communities of color and Black families in particular and has failed to provide any public safety or public health benefit. Americans for Prosperity and the American Civil Liberties Union might not always see eye to eye on every political issue, but our organizations agree it is time to end this unjust sentencing framework.

The EQUAL Act is a common-sense reform that will end it once and for all. It has bipartisan support in both the U.S. House of Representatives and the U.S. Senate. By eliminating the sentencing disparity between crack and powder cocaine, we can make strides towards reducing over-incarceration in our federal prisons and free up resources that can be better spent on critical reentry services for those exiting federal prison and recovery resources for individuals struggling with a substance use disorder.

The EQUAL Act recently passed the House of Representatives with an overwhelming bipartisan vote of 361 to 66. It is rare to see Louie Gohmert (R-Texas), a former Texas judge and nationally-recognized staunch conservative, agree with Hakeem Jeffries (D-N.Y.), one of the leading progressive voices in the leadership of the Democratic Party, on criminal justice reform, but that is just what happened on the House floor when they both spoke in support of the EQUAL Act. It is now up to the Senate to pass this long-overdue legislation and send the EQUAL Act to President Biden’s desk for his signature. Senators Cory Booker (D-N.J.), Dick Durbin (D-Ill.), Rob Portman (R-Ohio), Thom Tillis (R-N.C.), Rand Paul (R-Ky.), and Patrick Leahy (D-Vt.), and Lindsey Graham (R-S.C.) are the sponsors of the Senate companion legislation (S. 79) and have taken the lead in building a coalition to pass this legislation during the 117th Congress. The time is now for the Senate to take action and rectify this long-standing injustice in our criminal legal system.

Aamra Ahmad is the Senior Policy Counsel for the American Civil Liberties Union’s Justice Division. Jeremiah Mosteller is the Senior Policy Analyst for Criminal Justice at Americans for Prosperity.

By Mitra Ebadolahi, Border Litigation Project Staff Attorney & Monika Y. Langarica, Immigrants’ Rights Staff Attorney, ACLU of San Diego & Imperial Counties

Recently, U.S. Customs and Border Protection (CBP) issued new guidance requiring baby bassinets and “snacks” to be available to infants and people who are pregnant, postpartum, or nursing in CBP detention. Neither are of comfort in hieleras — freezing cold, overcrowded holding cells notorious for their harsh conditions. And none of the added features included in the new policy can compensate for the physical and emotional strain of CBP detention conditions on people who are pregnant, postpartum, or nursing their newborns.

Though highly anticipated, CBP’s guidance falls embarrassingly short and will do little to address the well-documented pattern of mistreatment of pregnant people in the agency’s custody. The new guidance demonstrates that instead of moving away from detaining these uniquely vulnerable populations altogether, CBP is attempting to double down on unnecessary and dangerous detention practices.

In January 2020, the ACLU of San Diego & Imperial Counties (ACLU-SDIC) and the ACLU of Texas filed a complaint with the U.S. Department of Homeland Security’s Office of the Inspector General (OIG) calling for an immediate review of mistreatment of pregnant people detained in CBP facilities. Such mistreatment regularly imperiled the viability of pregnancies, even sometimes resulting in miscarriage. Nancy, one mother interviewed by the ACLU-SDIC, reported:

“…that the food she received was spoiled and served cold; she could not bring herself to eat it … [she] had been taken into custody in wet and mud-covered clothing, [and] was neither permitted a change of clothing nor provided a chance to shower for the duration of her detention.”

In April 2020, ACLU-SDIC filed a subsequent complaint on behalf of a pregnant woman who suffered mistreatment at the Chula Vista Border Patrol Station. After arresting her for routine processing, instead of facilitating her immediate access to critical medical care, CBP officers subjected her to a “rough ride” to a Border Patrol station, “jerk[ing] the steering wheel and slamm[ing] on the brakes.” Her experience only deteriorated inside the station, where she was forced to give birth while holding onto a trash can for support. The woman reported:

“Her husband heard the baby’s cries and, desperate to ensure the safety of his newborn child, lowered his wife’s pants and reached for the baby’s head, which was protruding out of her body. A Border Patrol agent and multiple medical staff also reached for the baby, some without gloves, and the baby was born. Although joyous about the birth of her child, [she] felt humiliated after realizing she had been surrounded by about 20 strangers, including multiple CBP agents and other unknown detained men, while she gave birth.”

The woman was finally taken to a hospital after she gave birth. After she was discharged, however, Border Patrol forced her to return to the Chula Vista Border Patrol Station for a night of postpartum detention together with her newborn baby.

In response to the complaint on behalf of the woman who gave birth at the Chula Vista Border Patrol Station, the OIG issued a report in July 2021 finding a number of deficiencies in the manner in which CBP and Border Patrol respond to in-custody births. The OIG recommended that CBP “expedite releases because holding U.S. citizen newborns at Border Patrol stations poses health, safety, and legal concerns.” Eleven senators wrote to Homeland Security Secretary Alejandro Mayorkas urging DHS to adopt a policy similar to one that Immigration and Customs Enforcement (ICE) adopted earlier this year, which states that “[g]enerally, ICE should not detain, arrest, or take into custody” people who are “known to be pregnant, postpartum, and/or nursing.” Instead of heeding the senators’ recommendations and following ICE’s lead on this issue, CBP has chosen a path of further detention, entrenching a practice that jeopardizes the safety and well-being of people like the ACLU-SDIC’s client and her newborn baby.

Among other things, CBP’s new guidance purports to improve access to medical care and basic items like snacks, liquids, and diapers in hieleras; conditions under which parents can nurse and change diapers in hieleras; and documentation of childbirths in hieleras. But it fails to address the fundamental problem that CBP detention in hieleras threatens the health and dignity of pregnant, postpartum, and nursing people and their newborns, and that a humane alternative exists. The risks of CBP detention that the new guidance purports to mitigate, including limited access to medical care, inadequate care for infants, and inconsistent documentation of in-custody births, could be prevented altogether if CBP instead prioritized the prompt release of people who are pregnant, postpartum, or nursing. This would avoid the possibility of in-custody births of U.S. citizen babies and alleviate the need to accommodate postpartum and nursing parents.

The July 2021 OIG report included images of the ACLU-SDIC’s client laying down on a concrete bench in a hielera with her newborn U.S. citizen baby wrapped in an aluminum blanket for warmth. CBP’s response to this disturbing image was to suggest adding a bassinet for the baby and to offer snacks and milk.

Our demand in response is simple: CBP must stop detaining pregnant, postpartum, and nursing people altogether by prioritizing their prompt release to their networks of care in the United States, so that these individuals may pursue their immigration cases in safe and humane conditions.