Attorney General Merrick Garland on Friday instructed federal prosecutors to end charging and sentencing disparities in cases involving the distribution of crack and powder cocaine, after decades of law enforcement policy disproportionately treating crack offenders more punitively.
Efforts to Eliminate Crack/Powder Cocaine Disparity Apparently Fail in 2022
In the 1980's, crack cocaine became a major issue in America. The mandatory minimums that were put into place at that time caused what is known as the 100:1 disparity. This meant that someone convicted of crack cocaine would face harsher penalties than someone convicted of powder cocaine. This was amended in 2009 with the Fair Sentencing act, but the disparity was only reduced to 18:1. In 2018, the Fair Sentencing act of 2009 was made retroactive as part of the FIRST STEP Act of 2018. This means that people who were convicted before 2009 and are currently serving time for crack cocaine offenses can have their sentences reduced.
The EQUAL Act is a piece of legislation that seeks to eliminate this disparity completely. This entry will discuss the path of the EQUAL Act through congress and hopefully to the President's Desk.
Some Necessary Terms: Crack Cocaine, Powder Cocaine and Mandatory Minimums
In order to understand the importance of the EQUAL Act and its importance, one must understand what crack cocaine is, what powder cocaine is and how they relate to sentencing:
Department of Justice, Powdered Cocaine Fast Facts
Powdered cocaine (cocaine hydrochloride) is a stimulant that is extracted from the leaves of the coca plant, which is native to South America. In the late 19th century cocaine was used as an anesthetic, but the availability of safer drugs rendered many of its medical applications obsolete. Cocaine typically is sold to users as a fine, white, crystalline powder. Powdered cocaine typically is snorted (inhaled through the nose), although it may be dissolved in water and injected. When snorted, the drug is absorbed into the bloodstream through the nasal membranes. The drug reaches the brain--and produces its euphoric effect--within 3 to 5 minutes. When injected, the drug is released directly into the bloodstream and reaches the brain within 15 to 30 seconds.
Department of Justice, Crack Cocaine Fast Facts
Crack cocaine is a highly addictive and powerful stimulant that is derived from powdered cocaine using a simple conversion process. Crack emerged as a drug of abuse in the mid-1980s. It is abused because it produces an immediate high and because it is easy and inexpensive to produce, rendering it readily available and affordable. Crack is produced by dissolving powdered cocaine in a mixture of water and ammonia or sodium bicarbonate (baking soda). The mixture is boiled until a solid substance forms. The solid is removed from the liquid, dried, and then broken into the chunks (rocks) that are sold as crack cocaine...Crack typically is available as rocks. Crack rocks are white (or off-white) and vary in size and shape. Crack is nearly always smoked. Smoking crack cocaine delivers large quantities of the drug to the lungs, producing an immediate and intense euphoric effect.
Mandatory Minimums, Generally
Mandatory minimums are created by congress and are enforced by prosecutors and courts. Usually a mandatory minimum is written into the law by congress. A mandatory minimum looks like this:
In the case of a violation of subsection (a) of this section involving—
280 grams or more of a mixture or substance described in clause (ii) which contains cocaine base;
such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life…
21 USC 841(b)(iii). If the prosecutor places that amount in the indictment and the grand jury does in fact indict that person and that person either pleads guilty or is found guilty of that specific amount of drugs by a jury beyond a reasonable doubt that creates a situation where there is a mandatory minimum. Obviously there are exceptions to this like the safety valve.
Sentencing Disparities Between Crack and Powder
The Anti-Drug Abuse Act of 1986 created a disparity between crack and powder cocaine:
- A person found holding 500 grams of powder cocaine would face a five-year mandatory minimum. Crack offenders would have to be in possession of a mere 5 grams to face the same obligatory sentence.
- Crack offenders faced a 10-year mandatory minimum for carrying 10 grams of the drug. The same penalty would not kick in for a powder-cocaine suspect unless caught with 1,000 grams.
Washington Post, The Fair Sentencing Act Corrects a Long-time Wrong in Cocaine Cases. This created what is commonly referred to as the 100-1 disparity.
Source: Bureau of Prisons
Further, the United States Sentencing Commission Studies indicated disparate racial treatment.
- According to U.S. Sentencing Commission figures, no class of drug is as racially skewed as crack in terms of numbers of offenses. According to the commission, 79 percent of 5,669 sentenced crack offenders in 2009 were black, versus 10 percent who were white and 10 percent who were Hispanic.
- The figures for the 6,020 powder cocaine cases are far less skewed: 17 percent of these offenders were white, 28 percent were black, and 53 percent were Hispanic.
- Combined with a 115-month average imprisonment for crack offenses versus an average of 87 months for cocaine offenses, this makes for more African-Americans spending more time in the prison system.
Source: U.S. News
Implementation of Reforms
Several reforms were implemented in order to correct the disparity between crack cocaine and powder cocaine. However none treated them as equals.
The Fair Sentencing Act of 2010 reduced the mandatory sentencing provisions.
- The Fair Sentencing Act of 2010 (FSA), enacted August 3, 2010, reduced the statutory penalties for crack cocaine offenses to produce an 18-to-1 crack-to-powder drug quantity ratio.
- The FSA eliminated the mandatory minimum sentence for simple possession of crack cocaine and increased statutory fines.
- A person found holding 28 grams of powder cocaine would face a five-year mandatory minimum. Crack offenders would have to be in possession of a mere 5 grams to face the same obligatory sentence.
- Crack offenders faced a 10-year mandatory minimum for carrying 280 grams of the drug. The same penalty would not kick in for a powder-cocaine suspect unless caught with 1,000 grams.
This retroactively applied the Fair Sentencing Act of 2010 for crack cocaine offenders and allowed the judge to consider whether a reduction was appropriate for persons who were previously incarcerated for crack offenses.
The EQUAL Act
The EQUAL Act, if passed, would eliminate the mandatory minimum disparity between crack cocaine and powder. It would also allow persons who are in prison currently to petition the courts to receive the benefit of this law. Individuals who are in prison currently would consider the sentencing factors present in Title 18, United States Code Section 3553(a) to determine whether a reduction is appropriate.
The Text of the EQUAL Act
SEC. 2. ELIMINATION OF INCREASED PENALTIES FOR COCAINE OFFENSES WHERE THE COCAINE INVOLVED IS COCAINE BASE.
(a) CONTROLLED SUBSTANCES ACT.—The following provisions of the Controlled Substances Act (21 U.S.C. 801 et seq.) are repealed:
(1) Clause (iii) of section 401(b)(1)(A) (21 U.S.C. 841(b)(1)(A)).
(2) Clause (iii) of section 401(b)(1)(B) (21 U.S.C. 841(b)(1)(B)).
(b) CONTROLLED SUBSTANCES IMPORT AND EXPORT
ACT.—The following provisions of the Controlled Sub- stances Import and Export Act (21 U.S.C. 951 et seq.) are repealed:
(1) Subparagraph (C) of section 1010(b)(1) (21 U.S.C. 960(b)(1)).
(2) Subparagraph (C) of section 1010(b)(2) (21 U.S.C. 960(b)(2)).
(c) APPLICABILITY TO PENDING AND PAST CASES.—
(1) PENDING CASES.—This section, and the amendments made by this section, shall apply to any sentence imposed after the date of enactment of this Act, regardless of when the offense was committed.
(2) PAST CASES.—In the case of a defendant who, before the date of enactment of this Act, was convicted or sentenced for a Federal offense involving cocaine base, the sentencing court may, on motion of the defendant, the Bureau of Prisons, the attorney for the Government, or on its own motion, impose a reduced sentence after considering the factors set forth in section 3553(a) of title 18, United States Code.
An Outside Argument that this Bill Completely Eliminates Mandatory Minimums for Crack Altogether
At the least, this Bill would eliminate the mandatory minimum disparity between crack cocaine and powder. It would also allow persons who are in prison currently to petition the courts to receive the benefit of this law.
But I feel like there is a way to read this bill to indicate that...it completely eliminates mandatory minimums for crack. This is because the text surrounding the crack mandatory minimums would be eliminated whereas the other mandatory minimums would be present.
If they were going to do it equally, they would do something like a mandatory minimum of 5 years if there are 500 grams of crack on the indictment and a mandatory minimum of 10 years if there are 5 kilos of crack on the indictment.
Update June 28, 2021: President Biden's Department of Justice Endorses EQUAL Act
Reuters reported that the Department of Justice submitted a written statement endorsing the EQUAL Act:
President Joe Biden's Justice Department is urging Congress to pass legislation to permanently end the sentencing disparities between crack cocaine and powder, a policy that has led to the disproportionate incarceration of African Americans across the United States.
In written testimony submitted to the Senate Judiciary Committee, the Justice Department lambasted the "unwarranted racial disparities" that have resulted from the differences in how drug offenses involving crack and powder cocaine are treated under current law, and said the misguided policy was "based on misinformation about the pharmacology of cocaine and its effects."
"We believe it is long past time to end the disparity in sentencing policy between federal offenses involving crack cocaine and those involving powder cocaine," the department wrote, noting that as of March 2021, U.S. Sentencing Commission data showed that 87.5 percent of the people serving federal prison time for drug trafficking offenses primarily involving crack cocaine were Black.
You can find the Senate Judiciary Committee Meeting Here.
Update July 25, 2021: Equal Act Passes House Judiciary Committee, moves to Full House
We received word from several different news agencies that HR 1693, the EQUAL Act, or the “Eliminating a Quantifiably Unjust Application of the Law Act,” was going through the House Judiciary Committee this week. When I looked it up online, I saw that the following was on its congress.gov web page:
Latest Action: House - 07/21/2021 Ordered to be Reported (Amended).
I didn’t quite know what that meant so did some research and ended up reading 2000 lines of a thing called an “Hearing Record Unofficial Transcript.” Your loved ones can find that here. By reading the transcript and two reports on Amendments and the voting record on the amendments I found the following:
- Speeches: Everyone made a speech about the bill and whether they liked it or not. There was overwhelming support for the bill overall amongst the committee members with a final vote of 35 in favor of sending the bill to the full house with several amendments that will be discussed below. There was considerable discussion about how the country got here; several representatives brought up the disparities between powder cocaine and cocaine base while others were quick to remind the committee that Dick Durbin, Charlie Rangel, Major Owens, Chuck Schumer, Al Gore, Joe Biden and John Kerry all voted for the The Anti-Drug Abuse Act of 1986.
- A proposed fentanyl amendment was voted down. A representative from Wisconsin moved to add the following amendment to the EQUAL Act:
(d) FENTANYL OR FENTANYL ANALOGUE CASES.— 2 Nothing in this section or an amendment made by this 3 section shall apply to an offense involving fentanyl or a 4 fentanyl analogue.
- (Some of) The FSA 404 amendments were added. Representative Lee from Texas filed an amendment that said the following:
(C) DEFENDANT NOT REQUIRED TO BE PRESENT.—Notwithstanding Rule 43 of the Federal Rules of Criminal Procedure, the defendant is not required to be present at any hearing on whether to impose a reduced sentence pursuant to this paragraph.
(D) NO REDUCTION FOR PREVIOUSLY REDUCED SENTENCES.—A court may not consider a motion made under this paragraph to reduce a sentence if the sentence was previously im- posed or previously reduced in accordance with this Act.
(E) NO REQUIREMENT TO REDUCE SENTENCE.—Nothing in this paragraph may be construed to require a court to reduce a sentence pursuant to this paragraph.
When she spoke on why she was presenting these amendments, congresswoman Lee indicated the need for judicial efficiency, the need to prevent inmates being brought back to court, and the following:
“Third, the amendment adds to First Step Act's language limiting the number of motions that can be made under the EQUAL Act. This promotes judicial economy without diminishing the ability for all affected by the crack cocaine disparity to be heard and resentenced by courts in a timely manner. Again, justice must prevail.”
But what is odd here is that Congresswoman Lee did not present anything similar to the following as an amendment:
(c) LIMITATIONS.—No court shall entertain a motion made under this section to reduce a sentence if the sentence was previously imposed or previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111–220; 124 Stat. 2372) or if a previous motion made under this section to reduce the sentence was, after the date of enactment of this Act, denied after a complete review of the motion on the merits. Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section.
This is in Section 404 of the FIRST STEP Act. If Congresswoman Jackson Lee wanted to “limit[ ] the number of motions that can be made under the EQUAL Act, then why not include a limit “after a complete review of the motion on the merits[?]”
Now to be fair, I don’t want that in the text of the bill anyway, given that we have seen many judges deny 3582 motions based on the 3553(a) factors and doing so by giving more weight to the offense that was committed and much less weight to any rehabilitation that was engaged in. But as I indicated, it was interesting that it was not included in the text of the bill.
At any rate, Ms. Jackson-Lee's amendment was passed, the bill was voted successfully through the House Judiciary Committee and now goes to the floor of the full house.
Update September 25: Senator Grassley: EQUAL Act May Not Have Enough Votes in the Senate
The Gazette, An Iowa paper, indicates Grassley has stated he does not believe there are enough votes in the Senate to pass the EQUAL Act:
"But the Equal Act doesn’t have that level of support in the Senate," Grassley said. Attempting to eliminate the disparity would jeopardize the likelihood he and Durbin can get the 60 votes needed to bring the justice reform bills to the floor. "Among Republican colleagues, it’s a non-starter," he said.
“Does that mean that there's not some possibility for compromise? I would be open to that, but I'm going to have to get enough Republicans to go along to make sure we don't scuttle the other good provisions we have,” Grassley said.
He cites the U.S. Sentencing Commission, which found weapons were involved in 38.9 percent in crack cocaine cases compared with 18.4 percent in marijuana and powder cocaine cases. It also found that overall “crack cocaine offenders had more serious criminal histories than any other group of drug traffickers.”
Souce: The Gazette
Jeremy’s Opinion: Rebutting Grassley’s Statement
I, for one, am thankful the EQUAL Act is being considered. Furthermore, I am glad Senator Grassley is working to consider difficult questions surrounding the EQUAL Act. But I believe that Senator Grassley’s analysis is missing key information.
The stated purpose of the EQUAL Act is to make mandatory minimums for crack and powder cocaine equal.
This is not intended to negate mandatory minimums overall. A person with 500 grams of powder would face a five year mandatory minimum. A person with 1000 grams of powder cocaine would face a mandatory minimum of ten years. If passed, the Equal Act would bring the crack minimums in line with the powder minimums. This does not eliminate them at all. They would still apply for appropriate offenders.
The EQUAL Act does not negate the impact of the sentencing guidelines.
Grassley cites the Sentencing Commission’s data indicating the higher amounts of weapons and higher rate of recidivism in crack cocaine offenses. But United States Sentencing Guideline § 2D1.1(b) already provides for this:
(1) If a dangerous weapon (including a firearm) was possessed, increase by 2 levels.
(2) If the defendant used violence, made a credible threat to use violence, or directed the use of violence, increase by 2 levels.
An increase in two levels can substantially increase a sentence, especially when considering the amounts of sentences further down the federal sentencing guidelines chart.
The EQUAL Act does not negate the impact of 924(c).
In cases where a firearm was used, the grand jury can still indict a person with carrying/brandishing/shooting a firearm in furtherance of a drug trafficking crime under 18 U.S.C. 924(c). This in and of itself would create mandatory minimums of either five, seven or ten years based on the offense. Each 924(c) charge runs consecutively to any other crime that a defendant is charged, creating a powerful deterrent separate and apart from the amount of time that can be reduced for the EQUAL act.
The EQUAL Act does not negate the impact of 851 or career offender enhancements.
Senator Grassley has indicated that recidivism is an issue that may preclude passage of the EQUAL Act. Yet, this does not take into account the impact of 851 enhancements.
Even under the FIRST STEP Act of 2018, a person accused of a drug crime with a qualifying prior serious drug or violent offense would face a mandatory minimum of 15 years to life. A person accused of a crack cocaine offense with two qualifying prior serious drug or violent offenses would face a mandatory minimum of 25 years to life. The career offender guidelines of United States Sentencing Guideline § 4B1.1 drastically increase the sentence of eligible offenders as well.
The EQUAL Act does not negate a prosecutor’s ability to use their discretion to increase the potential mandatory minimum sentence of an offender.
The EQUAL Act does not negate the Evidence Based Recidivism Reduction Provisions of the FIRST STEP Act or the RDAP program.
The FIRST STEP Act of 2018 provides for evidence based recidivism reduction programming for all offenders. Individuals who are low or minimum risks of recidivism can receive rewards including time that can be banked to go to home confinement earlier. And all inmates, including medium and high recidivism risk offenders can receive other rewards from the program.
Further, the Residential Drug Abuse Program gives inmates options for drug treatment and tools to overcome addiction. Further, qualifying incarcerated persons can receive time off their sentences as a reward for completing the program. The EQUAL Act does not negate this.
October 3rd Update: EQUAL Act Passes the House
On September 30, 2021, the EQUAL Act, House Bill 1693, was passed by the House of Representatives. There were 361 votes in favor of the bill. There were 66 votes against the bill. Four representatives did not vote.
The bill now awaits passage in the senate. It currently awaits a potential vote in the senate judiciary committee. However, as we discussed last week, Senator Dick Durbin has indicated that the bill has a tougher road in the senate as there is far less bipartisan support.
While we are not a political agency, we are far more hopeful about the bill’s chances as we note that the EQUAL Act received unanimous approval from House Republicans in the following states:
Nevada (Cortez Masto-D/Rosen-D),
South Dakota (Thune-R/Rounds-R),
Washington State (Murray-D/Cantwell-D),
North Carolina (Burr-R/Tillis-R),
West Virginia (Manchin-D, but I mean, like, come on/Capito-R)
March 22 Update: EQUAL Act has 10 Republican Cosponsors in the Senate
On March 22, 2022, Republican Senator Richard Burr of North Carolina became the 10th Republican co-sponsor for the historic EQUAL Act legislation. The EQUAL Act passed the House of Representatives months ago. And even President Biden's Justice Department has endorsed it in a Senate Judiciary Committee Meeting. However, it was sitting in the Senate blocked by Republican opposition. Due to the filibuster rules the Democrats needed 10 Republican co-sponsors to bring the EQUAL Act to the Senate floor and send the bill to President Biden. That time has come.
Although the EQUAL Act has not technically passed, its flight path has cleared and we firmly believe it is going to become the law of the land soon. In this edition of the newsletter we break down the specific text of the new law in detail and explain what it means for you.
The EQUAL Act: Deleting References to Crack
The structure of the Part One of the EQUAL Act is relatively straightforward. Congress is simply deleting references to cocaine base from the federal criminal code. Here is the text itself so you can read it without any edits:
(a) CONTROLLED SUBSTANCES ACT.—The following provisions of the Controlled Substances Act (21 U.S.C. 801 et seq.) are repealed:
(1) Clause (iii) of section 401(b)(1)(A) (21 U.S.C. 841 (b)(1)(A)).
(2) Clause (iii) of section 401(b)(1)(B) (21 U.S.C. 841 (b)(1)(B)).
(b) CONTROLLED SUBSTANCES IMPORT AND EXPORT ACT—The following provisions of the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.) are repealed:
(1) Subparagraph (C) of section 1010(b)(1) (21 U.S.C. 960(b)(1)).
(2) Subparagraph (C) of section 1010(b)(2) (21 U.S.C. 960(b)(2)).
Let’s take a look at what this means in practice. Clause (iii) of 841 is the portion of the federal criminal code that punishes possessing with intent to distribute 280 or more grams of cocaine base. Currently, if you have 280 or more grams of cocaine base you are subject to a punishment range of 10 to Life. If you have 5 kilograms or more of cocaine powder you get 10 to Life.
What does the EQUAL Act do? Instead of changing subsection (iii) and inserting “5 kilograms or more….of cocaine base” Congress just strikes (iii) altogether. Congress takes the same approach to revising (b)(1)(B) where people face 5 to 40 years in prison. Instead of keeping a separate (iii) subsection (currently 28 grams of crack), Congress removes the subsection entirely. These changes do not alter the language of (b)(1)(C).
The same thing is done in revising the import/export drug provisions of 21 U.S.C. Sec. 960. Congress simply deletes the subsections that treat crack differently than powder cocaine.
Equal Act: Retroactivity Only if Judge Agrees
We saw with Section 404 of the 2018 First Step Act how Congress likes to make these sentencing reforms partially retroactive. I say “partially” retroactive because the changes are not automatic. In the EQUAL ACT, Congress has once again made a defendant’s ability to benefit from changes in the law contingent on getting their sentencing judge to agree.
To be clear, we 100% disagree with this approach. We think these changes should be automatic. We think these changes should be across the board. But Congress and the stakeholders did not listen to the Law Office of Jeremy Gordon. We are simply here to report on what the legislation does say; not what it should say. Here is the important text on retroactivity:
(c) APPLICABILITY TO PENDING AND PAST CASES.—
(2) PAST CASES.—In the case of a defendant who, before the date of the enactment of this Act, was convicted or sentenced for a Federal offense involving cocaine base, the sentencing court may, on motion of the defendant, the Bureau of Prison, the attorney for the Government, or on its own motion, impose a reduced sentence after considering the factors set forth in section 3553(a) of title 18, United States Code.
Let’s break this down.
First, the timing. People convicted OR sentenced prior to the date the EQUAL ACT becomes law. There is a separate provision applying the EQUAL ACT to pending cases. That is separate from this retroactivity provision.
Second, the who. A “conviction” or “sentence” for a “Federal offense” which was “involving cocaine base…” The term “Federal offense” seems pretty straightforward so we won’t dwell on that. The hard question is who has a “conviction or sentence” for crimes “involving cocaine base”?
Our office is prepared to argue for a broad interpretation of this term. There will be easy cases of course. Defendant was indicted for cocaine base only crime, pled guilty to that crime, and relevant conduct was only involving cocaine base. Of course this person is covered.
There will also be a lot of hard cases. Defendant is indicted for cocaine base conspiracy in Count One, cocaine powder conspiracy in Count Two. Defendant pleads guilty to Count Two, Count One is dismissed. Relevant conduct includes cocaine base and cocaine powder at sentencing. Is this person eligible? We would argue “YES!” because his offense “involv[ed] cocaine base” and his sentencing guidelines involved application of crack drug amounts too.
The Government is probably going to disagree. We saw this with the First Step Act of 2018. They are likely going to try and limit who can even seek relief. Even if you are clearly eligible to have the judge impose a reduced sentence, prosecutors only know how to prosecute. We anticipate that most if not all prosecutors will fight defendants getting a sentence reduction.
Third, the what. The “sentencing court” “may” “impose a reduced sentence,” but only after it considers the “3553(a) factors.” May is different than shall or must. This means that Congress is leaving it up to the sentencing courts to decide these motions on a defendant by defendant basis. Again, we disagree with that approach, but that is the decision Congress made.
Sentencing courts are also directed to weigh the 3553(a) factors before imposing a reduced sentence. This is where the prosecutors will probably argue strongly that everyone needs to stay in prison. We say that because that is what they did under the 2018 First Step Act. Thankfully, some sentencing judges got it and reduced sentences for lots of people. Our office was proud to help multiple individuals leave prison early based on Section 404 motions.
Last, there will be fights over whether or not “impos[ing] a reduced sentence means affording a defendant a plenary resentencing. This is a question that will play out over litigation and courts will have to decide. Do you get to argue that you are no longer a career offender under current Sentencing Guidelines because of new case law? We don’t know yet, but you need to have an attorney on your side who is prepared to make these arguments and fight for you in the District Court and on appeal if necessary.
Takeaways: 35 year-old problem still getting a Bandaid Fix.
The 1:1 ratio created by the EQUAL ACT is a great step in the right direction. The problem has been 35 years in the making at this point. We are certainly encouraged that Congress is trying to right these historical wrongs and grant some relief. At the same time, we are getting ready to fight.
We are getting ready to fight because we know the relief given by the EQUAL ACT is not automatic. We are getting ready to fight because we know that Assistant U.S. Attorneys are going to oppose our clients receiving lower sentences. We are getting ready to fight because that’s what this law requires in order to actually achieve a measure of justice for incarcerated individuals.
Update April 5, 2022: Two More Co-Sponsors
Bipartisan support for the EQUAL Act continues to grow as the Congress.gov page for the Senate version of the EQUAL Act lists two more co-sponsors, Sen. Roy Blunt [R-MO] and Sen. Edward J Markey [D-MA].
New York Times: EQUAL Act in Jeopardy
The New York Times put out a piece in April indicating that the EQUAL Act could be in jeopardy. The Article indicates a “law-and-order” message may be used against supports of this bill, other legislation and the supporting of Justice Jackson. The article indicated supporters of the legislation could face messaging in election campaigning that paints them as soft on crime and immigration.
“’I assume the topic opens itself pretty wide,’ said Senator Roy Blunt, Republican of Missouri, who became the 11th member of his party to sign on to the Equal Act this month, giving its supporters more than the 60 votes needed to overcome procedural obstacles.”
The piece went on to say that Senator Tom Cotton would stand in opposition to this bill in the same way that he stood against the FIRST STEP Act, recommending a different solution for the disparity:
“Senator Tom Cotton, the Arkansas Republican who led the opposition to the First Step Act, said he was in no mood to let the Equal Act sail through. He has said that if the disparity is to be erased, penalties for powder cocaine should be increased.
‘My opposition to the Equal Act will be as strong as my opposition to the First Step Act,’ Mr. Cotton said.”
Further, a rival bill has been introduced by members of the minority party:
“The legislation encountered another complication on Thursday, when Senators Charles E. Grassley of Iowa and Mike Lee of Utah, two top Republican supporters of the previous criminal justice overhaul, introduced a competing bill that would reduce — but not eliminate — the sentencing disparity between crack and powder cocaine. They said that research showed that crack traffickers were more likely to return to crime and carry deadly weapons.
‘Our legislation will significantly reduce this disparity while ensuring those more likely to reoffend face appropriate penalties,’ said Mr. Grassley, the top Republican on the Judiciary Committee.”
The SMART Cocaine Sentencing Act: A Rival Bill Put forth as a Foil
On April 28, 2022, Senator Grassley as well as Senators Lee, Wicker and Graham introduced a bill titled the ‘‘Start Making Adjustments and Require Transparency in Cocaine Sentencing Act’’ or the “SMART Cocaine Sentencing Act.”
Reduced Mandatory Minimums under the SMART Cocaine Act
The SMART ACT would create the following penalties for drug crimes:
Crack Cocaine: 160 grams of crack cocaine pled in indictment and proven: 5-year mandatory minimum (presently 28 grams)
Crack Cocaine: 1600 grams of crack cocaine pled in indictment and proven: 10-year mandatory minimum (presently 280 grams)
Powder Cocaine: 400 grams of powder cocaine pled in indictment and proven: 5-year mandatory minimum
Powder Cocaine: 4 kilos of powder cocaine pled in indictment and proven: 10-year mandatory minimum.
This changes the disparity from 18:1 to 2.5:1.This applies to 21 USC 841 (manufacturing, dispensing, distributing or possession with intent to manufacture, distribute or dispense a controlled substance or counterfeit substance) as well 21 USC 960 (importation, possessing on board a vessel, aircraft or vehicle or manufacturing/possessing with intent to distribute a controlled substance).
Attorney General Certification Under the SMART Act
Regarding previously sentenced persons, the SMART Act also indicates the Attorney General must “certify” whether the inmate should receive a reduction:
IN GENERAL.—For a defendant sentenced before the date of enactment of this Act, the Attorney General shall submit to the court that sentenced the defendant a certification regarding whether, in the opinion of the Attorney General, the sentence of the defendant should be reduced, as if the amendments made by subsection (a) were in effect at the time the offense was certification under this paragraph, the Attorney General shall consider the factors in section 3553(a) of title 18, United States Code.
And if the attorney general does certify that the inmate should receive a reduction then the court MAY grant them a reduction:
RESENTENCING.—If the Attorney General submits a certification under paragraph (1) indicating that, in the opinion of the Attorney General, the sentence of the defendant should be reduced, as if the amendments made by subsection (a) were in effect at the time the offense was committed, the court that imposed the sentence of the defendant may impose such a reduced sentence.
The bill goes on to order research.
In a statement on the bill, Senator Grassley said the following:
“Separate legislation has been introduced in the Senate to completely flatten the differences between sentences for crack cocaine and powder cocaine offenses. This approach does not account for the differences in recidivism rates associated with the two types of cocaine offenses. According to a January 2022 analysis from the U.S. Sentencing Commission (USSC), crack cocaine offenders recidivate at the highest rate of any drug type at 60.8 percent, while powder cocaine offenders recidivate at the lowest rate of any drug type at 43.8 percent. Raising additional public safety concerns, USSC data reveals that crack cocaine offenders were the most likely among all drug offenders to carry deadly weapons during offenses. These statistics show the need for a close look at all available government data before we consider an approach to flatten sentencing for crack and powder cocaine offenses.”
The idea that the Attorney General’s office needs to “certify” whether an inmate should receive the benefit of a sentence reduction is duplicitous and inconsistent with prior legislation.
The Attorney General through the US Attorney’s office already can “certify” whether a person should receive a reduction. That comes from their ability to respond to a motion and oppose the motion or not. We know that they know how to do this because they responded in opposition to thousands of compassionate release motions that were filed for COVID relief.
The idea that the court may grant a motion if the prosecutor certifies that the person should receive a reduction is incomplete at best. The bill as drafted does not explain if the court can grant the motion if the prosecutor does not certify that the inmate can receive the reduction. And the idea that the court can grant the motion only if the government certifies it cuts against the notion of separation of powers.
There was no need for the prosecution to “certify” motions for amendment 782 (the two-level reduction), section 404 of the FIRST STEP Act (retroactively applying the Fair Sentencing Act of 2010) or compassionate release under the new FIRST STEP Act guidelines. The claimant files their motion, the government responds and the court rules.
There is no explanation as to why 2.5:1 is better or will reduce recidivism. If you want to say that crack cocaine offenders are more likely to recidivate than powder cocaine offenders then that’s fine, but where is the logical connection or inference between the difference in recidivism between crack and powder cocaine and the difference in the mandatory minimums? In other words, how did they come to 2.5:1 instead of 2:1 or 1.5:1? If this sentencing commission data is based on an 18:1 disparity then where is the evidence that a 2.5:1 disparity will eliminate the disparity in recidivism? Where is the data that indicates the difference in recidivism for meth or heroin cases relative to this and how are those mandatory minimums being affected? And since when does differences in recidivism create justification for disparities in mandatory minimums?
The biggest victim here might be the EQUAL act itself as the SMART Act gives certain persons cover to seek a compromise between the two bills or reject the EQUAL act altogether.
UPDATE: The National Defense Authorization Act and the EQUAL Amendment
On August 3, 2022, the National Defense Authorization Act (or NDAA) was introduced to the House of Representatives. It is entirely too long to really dig into but the official title, so that you can get an idea of what it does, is
“AN ACT To authorize appropriations for fiscal year 2023 for military activities of the Department of Defense and for military construction, and for defense activities of the Department of Energy, to prescribe military personnel strengths for such fiscal year, and for other purposes.”
A website called Roll Call indicates that the act is $840.2 Billion Dollars overall and is likely to pass. Because of this, several amendments are always attached and that is true this year as well, including an EQUAL Act. A press release by several representatives indicates a bipartisan effort to include the EQUAL Act as part of the NDAA:
The text of the EQUAL Act Amendment says this:
SEC. 5848. ELIMINATION OF SENTENCING DISPARITY FOR COCAINE OFFENSES.
(a) Elimination of Increased Penalties for Cocaine Offenses Where the Cocaine Involved Is Cocaine Base.—
(1) Controlled substances act.--The following provisions of the Controlled Substances Act (21 U.S.C. 801 et seq.) are repealed:
(A) Clause (iii) of section 401(b)(1)(A) (21 U.S.C. 841(b)(1)(A)).
(B) Clause (iii) of section 401(b)(1)(B) (21 U.S.C. 841(b)(1)(B)).
(2) Controlled substances import and export act.--The following provisions of the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.) are repealed:
(A) Subparagraph (C) of section 1010(b)(1) (21 U.S.C. 960(b)(1)).
(B) Subparagraph (C) of section 1010(b)(2) (21 U.S.C. 960(b)(2)).
(3) Applicability to pending and past cases.--
(A) Pending cases.--This section, and the amendments made by this subsection, shall apply to any sentence imposed after the date of enactment of this section, regardless of when the offense was committed.
(B) Past cases.—
(i) In general.--In the case of a defendant who, on or before the date of enactment of this section, was sentenced for a Federal offense described in clause (ii), the sentencing court may, on motion of the defendant, the Bureau of Prisons, the attorney for the Government, or on its own motion, impose a reduced sentence after considering the factors set forth in section 3553(a) of title 18, United States Code.
(ii) Federal offense described.--A Federal offense described in this clause is an offense that involves cocaine base that is an offense under one of the following:
(I) Section 401 of the Controlled Substances Act (21 U.S.C. 841).
(II) Section 1010 of the Controlled Substances Import and Export Act (21 U.S.C. 960).
(III) Section 404(a) of the Controlled Substances Act (21 U.S.C. 844(a)).
(IV) Any other Federal criminal offense, the conduct or penalties for which were established by reference to a provision described in subclause (I), (II), or (III).
(iii) Defendant not required to be present.--Notwithstanding Rule 43 of the Federal Rules of Criminal Procedure, the defendant is not required to be present at any hearing on whether to impose a reduced sentence pursuant to this subparagraph.
(iv) No reduction for previously reduced sentences.--A court may not consider a motion made under this subparagraph to reduce a sentence if the sentence was previously imposed or previously reduced in accordance with this section.
(v) No requirement to reduce sentence.--Nothing in this subparagraph may be construed to require a court to reduce a sentence pursuant to this subparagraph.
Congress.gov has indicated that the NDAA has passed the House 329-101 and is currently sitting in the Senate.
So will The NDAA and the EQUAL Act Amendment pass?
We are very hopeful that the EQUAL Act will pass as part of the NDAA. The elimination of the crack and cocaine disparity is still immensely popular, is the right thing to do and would benefit many inside. We still believe that any of the arguments against passage are unavailing: it is not soft on crime to make equal mandatory minimums for crack and powder, the guidelines are still present and serve as important considerations for sentencing and the arguments for the SMART Cocaine Sentencing Act (which argues for a 2.5:1 disparity) are inadequate. We also believe that there is a big difference between introducing rival legislation to peel off support and intentionally voting down an amendment when you want something similar in the SMART Cocaine Sentencing Act.
We will keep you informed on the progress of the NDAA.
December 17 Update: Are rumors of Crack Cocaine Reform's Death Greatly Exaggerated?
At the beginning of the week, those in the know were sounding the alarm that the EQUAL Act was unlikely to make it the President's Desk this year. And even with bipartisan support things looked bleak as the next congressional term will probably focus on less important matters.
Does anyone still trust the FBI?
— House Judiciary GOP (@JudiciaryGOP) December 16, 2022
Sen. Cory Booker (D-N.J.), who is playing a leading role in the talks, declined to discuss the details Monday night, only saying “we’re in a tough negotiation moment right now.” He added: “I just want to make sure that I focus on doing what I can to get something over the line, as opposed to talking about strategy.”
However, on Thursday, Reuters reported that the Senate had agreed on reducing the disparity between crack and powder cocaine from 18:1 to 2.5:1 in an agreement that would not include retroactivity:
We have previously discussed the GOP-led push to reduce the disparity from 18:1 to 2.5:1 and we have previously explained that while we appreciate any reform, the reasoning does not hold water. But something is better than nothing and this might be as good as we are going to get for a while.
December 17 Update: The Attorney General's Crack Cocaine Memo and how it Potentially Damages Crack Cocaine Reform Efforts
Word began circulating on Friday that the Attorney General's Office had worked to take matters into their own hands regarding the crack/powder cocaine disparity:
Critics of the longtime policy have said it is a relic of Washington’s misguided War on Drugs era that targeted Black and Brown communities, resulted in overpopulated prisons and strained federal and local resources at the expense of more-effective strategies.
Garland had said during his confirmation hearing last year that he opposes the sentencing disparities, and legal experts said his memo to U.S. attorneys is an effort to formally align Justice Department policy.
The second of two memos dealt specifically with drug offenses. We discussed the rest of the drug memo here.
Strong Words about Crack Cocaine Disparities
The Memo had strong words about the crack/powder cocaine disparity backed with action to use the cocaine statutory minimums for crack cases and directing prosecutors seeks sentence consistent with the guidelines for powder cocaine instead of crack cocaine:
The Justice Department supports elimination of the crack-to-powder sentencing disparity and has testified before Congress in support of the EQUAL Act, S. 79, which would remove that disparity. As the Department has explained: "First, the crack/powder disparity is simply not supported by science, as there are no significant pharmacological differences between the drugs: they are two forms of the same drug, with powder readily convertible into crack cocaine.
Second, as documented by the Sentencing Commission, the crack/powder sentencing differential is still responsible for unwarranted racial disparities in sentencing. Third, the higher penalties for crack cocaine offenses are not necessary to achieve (and actually undermine) our law enforcement priorities, as there are other tools more appropriately tailored to that end." Justice Department Statement, Senate Judiciary Committee 6 (June 22, 2021).
Accordingly, prosecutors in crack cocaine cases should take the following steps to promote the equivalent treatment of crack and powder cocaine offenses:
If charging a mandatory minimum term of imprisonment under Title 21 for a drug offense involving crack cocaine is deemed warranted under this memorandum, prosecutors should charge the pertinent statutory quantities that apply to powder cocaine offenses. The Criminal Division and the Executive Office for United States Attorneys will issue further guidance on how to structure such charges.
At sentencing, prosecutors should advocate for a sentence consistent with the guidelines for powder cocaine rather than crack cocaine. Where a court concludes that the crack cocaine guidelines apply, prosecutors should generally support a variance to the guidelines range that would apply to the comparable quantity of powder cocaine.
As noted above, prosecutors must always be candid with the court, the probation office, and the public as to the full extent of the defendant's conduct and culpability, including the type and quantity of drugs involved in the offense, even if the charging document lacks such specificity.
Context: These Decisions are within a prosecutor's discretion
The use of the executive authority to determine how to charge and how not to charge individuals is a hallmark of prosecutorial discretion and has echoes of the Obama Justice Department's use of clemency to resolve the crack/cocaine disparity in years past.
CNN--President Barack Obama on Tuesday reduced or eliminated the sentences for hundreds more non-violent drug offenders.
The move brings Obama well beyond his most recent predecessors, who used their commutation powers more sparingly. He’s now reduced sentences for 1,385 individuals, the vast majority of whom are serving time for crimes related to distribution or production of narcotics.
Many of those whose punishments he’s reduced were incarcerated for crimes involving crack cocaine, which came with mandatory sentences that were longer than those for the powdered version of the drug. The discrepancy – a facet of a decades-long war on drugs – overwhelmingly affected African-Americans.
Senate Leaders Rankled by Normal Separation of Powers
However, the move ruffled feathers with some who indicated that the policy would lead to blowback in the senate:
Sen. Charles E. Grassley (R-Iowa), however, assailed Garland’s move. Grassley, who supports significantly reducing the disparity but not eliminating it, said the attorney general risked upsetting legislative negotiations on Capitol Hill.
“A bipartisan group of lawmakers, including myself, just recently came to an agreement on statutory changes that could possibly be included in the year-end funding bill,” Grassley said. “That hard-won compromise has been jeopardized because the attorney general inappropriately took lawmaking into his own hands.”
It is unclear what the consequences of this action will be as of now. Senator Grassley has also issued a statement on his senate page:
“The attorney general’s guidance to prosecutors today is baffling and misguided. Not only does this instruction demand that prosecutors ignore the text and spirit of federal statutes, it undermines legislative efforts to address this sentencing disparity.“A bipartisan group of lawmakers, including myself, just recently came to an agreement on statutory changes that could possibly be included in the year-end funding bill. That hard-won compromise has been jeopardized because the attorney general inappropriately took lawmaking into his own hands. The administration could have engaged in the real and lasting legislative process, but opted for flimsy guidance that will disintegrate when this administration leaves office.“To be clear, our nation’s chief law enforcement official is pushing his subordinates to flagrantly disregard our laws. The first duty of the Department of Justice is to faithfully execute the laws passed by Congress. We are in a moment of public concern about crime and demoralization among law enforcement. This is the wrong decision for the Justice Department.”
Context and Commentary: Same Song Different President
This is not the first time for this. I recall that sentencing reform hit fatal stalls after former President Obama engaged in his clemency initiative in 2014. I recall many cries that he was taking the law into his own hands and bypassing congress. It was incorrect then and incorrect now.
There was no way to know if crack/powder reform was going to pass. As previously indicated, it was all but dead until this week. These things happened within a matter of days and it is unclear how much communication was happening between either side and the Department of Justice. Prosecutors have the authority to charge or not charge as they see fit.
The DOJ should not be faulted for doing what they thought was appropriate. The DOJ has gone on record that they believe that the disparity is improper. They might have jumped the gun by about a week, but they took action. This is what happens when you have a DOJ that sees a problem and then endeavors to fix it.
One thing that is important to note is that these policies and procedures are subject to the political party in power. If the political party in power changes then these policies are also subject to change.
Congress should pass some type of reform in order to fix this issue.
December 24 Update: Efforts to Eliminate Crack/Cocaine Disparity Apparently Fail to Make it out of Congress
A sensible proposal with overwhelming bipartisan support fails because…reasons?
I am continuing to scour the internet for any sign that legislation to end the crack/cocaine disparity has made its way through congress and to the President’s desk but I find none. The EQUAL Act apparently failed to make it out of the Senate Judiciary Committee and efforts to add language eliminating the disparity to the National Defense Authorization Act have also been stymied.
Apparently there were attempts to come to an agreement to lower the disparity from 18:1 to 2.5:1, however these changes would not be retroactive:
“Under a deal reached by bipartisan negotiators, that proportion would be narrowed to 2.5 to 1, said the people, who requested anonymity to discuss private talks. Congress is likely to attach the measure to a year-end spending bill that lawmakers are currently hashing out, they added.
The tentative deal does not include retroactive relief for people already convicted of crack-related offenses, which sentencing reform groups had been pushing for, the people said.”
However, these talks stalled once Attorney General Garland’s memo directing prosecutors to end charging disparities between crack and powder cocaine was published:
“A bipartisan deal to narrow the sentencing disparities between crack and powder cocaine was also booted from the bill after Attorney General Merrick Garland instructed federal prosecutors last week to eliminate the sentencing disparities, sparking frustration from Sen. Chuck Grassley (R-Iowa), who accused him of blowing up the Senate deal.”
All of this leads me to the opinion that efforts to eliminate this disparity will not go forward at this time.
We as an office are going to sit down with all of this and talk about options.
We will continue to monitor the EQUAL Act and the NDAA for their passage.
The EQUAL Act, the NDAA and all efforts to reduce the Crack-Powder Cocaine Disparity have a deadline of the end of the congressional term in January. We are monitoring the progress of the legislation and we will report here once developments are made.