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Legislative Update: Is the EQUAL Act in Trouble?

Concerns are starting to brew about whether the EQUAL Act with 60 co-sponsors from both major political parties will pass before the midterms.  

Concerns are starting to brew about whether the EQUAL Act, an act with 60 co-sponsors from both major political parties will pass before the midterms.

The EQUAL Act

We have had extensive discussions about the EQUAL Act over the past year.  The EQUAL Act will eliminate the disparity between crack cocaine and powder cocaine by making the amount of drugs necessary to trigger a mandatory minimum for crack cocaine equal to the amount of drugs necessary to trigger the corresponding mandatory minimum for powder cocaine:

The legislation would eliminate the current 18-to-1 disparity in sentencing for crack cocaine versus powder. The policy that can be traced to the “war on drugs” mind-set of the 1980s, which treated those trafficking in crack cocaine more harshly… The United States Sentencing Commission has said that passage of the legislation could reduce the sentences of more than 7,600 federal prisoners. The average 14-year sentence would be cut by about six years, it estimated.”

Source:  New York Times, Drug Sentencing Bill Is in Limbo as Midterm Politics Paralyze Congress

As we have previously indicated, the EQUAL Act overwhelmingly passed the House 361-66.  As there are 224 members of the majority party (Democrats) in the House and 210 members of the minority party (Republicans). This means that the EQUAL Act had bipartisan support in the house when it was passed.  It was previously mentioned the EQUAL Act received unanimous approval from House Republicans in the following states:

Arkansas (Boozman-R/Cotton-R),

Idaho (Crapo-R/Risch-R),

Wyoming (Barrasso-R/Lummis-R),

Iowa (Grassley-R/Ernst-R),

Kansas (Moran-R/Marshall-R),

Kentucky (McConnell-R/Paul-R),

Nevada (Cortez Masto-D/Rosen-D),

Ohio (Brown-D/Portman-R),

Oregon (Wyden-D/Merkley-D),

South Dakota (Thune-R/Rounds-R),

Utah (Lee-R/Romney-R),

Wisconsin (Johnson-R/Baldwin-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)”

In March of 2022 the 10th republican co-sponsor signed on to the EQUAL Act. Since then, more Republicans have signed on as cosponsors.  It was believed this cleared the act’s path to passage.

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

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

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

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.”

Commentary:

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.

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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