The EQUAL Act is a bill that could potentially eliminate the disparity in mandatory minimums between crack cocaine and powder cocaine in federal drug crimes.
Currently the bill has been passed by the House Judiciary Committee and is awaiting passage in the full House of Representatives. A companion bill is in the Senate Judiciary Committee. The Ranking Member of the Senate Judiciary Committee has indicated that the Bill may not have the support to pass the Senate.
In order to see how we got here, here is a breakdown of crack cocaine, powder cocaine and what Grassley is really saying.
Difference Between Crack and Powder Cocaine
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 this disparity.
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.
Does This Bill Completely Eliminate 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.
This bill feels to me like everyone is going to wake up, realize the error and amend it before the bill passes.
But maybe they won’t? Other criminal legislation has been passed that gives the impression that no one asked a criminal defense lawyer before they tried to do it. Mandatory minimums are something that we made up anyway.
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)