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Equal Act Has Ten Republican Cosponsors

Ten Republican Sponsors Have Sponsored the EQUAL Act, which Works to end the Disparity Between Crack Cocaine and Powder Cocaine.

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.

Were you sentenced for a criminal drug case involving crack? A crack conspiracy? A cocaine and crack conspiracy? Then you need to know what the EQUAL Act says and start getting ready to seek a sentence reduction from the Courts in the coming months.

If you are looking to hire a lawyer to help you seek a reduced sentence based on the EQUAL Act, send us an email at [email protected] or call us at 972-483-4865 today.

Why Do We Even Need the EQUAL Act?

A brief history lesson is important to understand why we need the EQUAL Act today. In the 1980s, Congress, including President (then Senator) Biden, decided we needed to get tough on crime and drug crimes in particular. In 1986, Congress passed the Anti-Drug Abuse Act, which created a scheme that imposed much more harsh punishments for crack crimes versus cocaine crimes.

For example, until 2010, someone caught distributing 5 grams of crack faced the same statutory scheme as someone caught distributing 500 grams of powder cocaine. This was known as the 100:1 powder-crack disparity. 100 grams of cocaine powder were treated the same as 1 gram of crack under federal criminal law.

Judges, scholars, scientists, and even members of Congress widely criticized the 100:1 powder-crack disparity. The criticism pointed out that there was no basis in science for treating crack so much more harshly than powder cocaine crimes. Scholars also pointed out that the crack and powder cocaine sentencing disparity disproportionately impacted people of color who were more likely to be sentenced to prison for crack offenses than white people.

In 2010, Congress passed the Fair Sentencing Act which reduced the sentencing disparity for new criminal cases from 100:1 to 18:1. However, this change did not apply to old cases which meant if you were sentenced before the 2010 Fair Sentencing Act you were stuck under the 100:1 sentencing scheme.

In 2018, Congress passed the First Step Act. The First Step Act of 2018 allowed individuals sentenced prior to the 2010 Fair Sentencing Act to seek retroactive application of the 18:1 ratio to their case. This meant older prisoners who had served lengthy sentences under 100:1 could go back to court and ask the judge to reduce their sentence under Section 404 of the 2018 First Step Act.

Today, Congress is finishing some of the work of the First Step Act with the EQUAL Act. As discussed below, the EQUAL Act is all about changing that existing 18:1 ratio to equal treatment of cocaine powder and cocaine base under federal criminal law.

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:


(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.

The EQUAL ACT has not officially passed yet. It will likely pass in the coming weeks before Congress goes on break for the summer. There is no date on the Congressional calendar yet to vote on this bill. Yet, we know it will become law now that 10 Republicans have signed on board.

If you are looking to hire a lawyer to help you seek a reduced sentence based on the EQUAL Act, send us an email at [email protected] or call us at 972-483-4865 today.

Update April 5, 2022:  Two More Co-Sponsors

Bipartisan support for the EQUAL Act continues to grow as the 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].

If anything here applies to you, contact us today.

At The Law Office of Jeremy Gordon, we fight aggressively for our clients. We are experienced, and know what it takes to present a successful defense in a federal criminal case. For prompt, courteous and skilled representation as your federal criminal defense attorney, contact us today to schedule a free phone consultation.
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