By: Adriana E. Morquecho
On March 9, 2021, Representative Hakeem Jeffries introduced the Eliminating a Quantifiably Unjust Application of the Law Act of 2021 (“EQUAL Act”).[1] The EQUAL Act would eliminate the sentence disparities between cocaine offenses by repealing the amount of cocaine that triggers mandatory minimum sentencing.[2] While the House of Representatives passed the EQUAL Act in September 2021, it is with the Senate awaiting approval[3]. If the EQUAL Act becomes law, countless defendants sitting in prison for crack cocaine possession could be eligible for a reduced sentence or be set free.[4] Notably, the EQUAL Act comes as a third attempt by Congress to mitigate the disproportionate sentencing in crack and powder cocaine offenses.[5] The EQUAL Act received bipartisan support in the House, and President Biden promised to sign it into law should it reach his desk, marking an important effort to address the unjust treatment cocaine sentencing levied on communities of color, specifically Black Americans.[6]
In response to a surge in cocaine use, Congress passed the Anti-Drug Abuse Act of 1986, establishing mandatory minimum sentences for federal drug trafficking cases.[7] Notably, the Anti-Drug Abuse Act of 1986 created “mandatory minimum penalties for drug offenses and introduced the one hundred-to-one sentencing disparity between crack cocaine and powder cocaine offenses.”[8] In effect, the Anti-Drug Abuse Act of 1986 punished street-level crack cocaine dealers harsher than individuals supplying powder cocaine, even though no difference between the two substances had been established.[9] This disparity, in turn, led to the disproportionate incarceration of Black Americans.[10] Two years after the Act of 1986 became law, Congress passed the Anti-Drug Abuse Act of 1988. The Anti-Drug Abuse Act of 1988 furthered sentencing disparities by establishing a five-year mandatory minimum and twenty-year maximum sentencing guideline for possession of five grams or more of crack cocaine.[11] However, Congress did not pass any acts creating a mandatory minimum for powder cocaine possession, and sentencing for possession of any amount of powder cocaine remained capped at one year.[12]
The effects of the Anti-Drug Abuse Act of 1986 and 1988 proved detrimental. In the following years, mandatory minimums, and the continued war on drugs, led to mass incarceration imbued with vast racial disparities.[13] President Obama signed the Fair Sentencing Act of 2010 (“Fair Sentencing Act”) to address the damages the policies of the 1980s caused.[14] The Fair Sentencing Act reduced future crack cocaine sentences bringing the disparity between crack and powder cocaine punishment from one hundred-to-one to eighteen-to-one.[15] While the Fair Sentencing Act applied to some individuals sentenced under the prior mandatory minimums,[16] it did not apply retroactively.[17] Thus, in 2018, President Trump signed the First Step Act of 2018 (“First Step Act”) into law.[18]
The First Step Act retroactively applies the Fair Sentencing Act’s reduced sentencing disparity between crack and powder cocaine.[19] In June 2021, the Supreme Court held that crack cocaine offenders who did not trigger a mandatory minimum do not qualify to receive a reduced sentence under the First Step Act.[20] The Supreme Court’s decision leaves several individuals who bore the brunt of the 1980s sentencing disparities without the possibility of a sentence reduction. Now, the EQUAL Act may be the only way these individuals can undo this injustice.
Given that the Fair Sentencing Act and the First Step Act failed to provide an avenue for all individuals sentenced unfairly, the EQUAL Act is Congress’ opportunity to resolve this issue. The EQUAL Act allows a sentencing court to retroactively order a reduced sentence for any individual sentenced for a crack cocaine offense when they file a motion.[21] The Senate must pass the EQUAL Act to reform the criminal justice system and achieve what it set out to do over a decade ago. Importantly, and very similar to the First Step Act, the EQUAL Act has bipartisan support “from Senators Cory Booker (D-NJ), Dick Durbin (D-IL), Rob Portman (R-OH), Rand Paul (R-KY), Thom Tillis (R-NC), and Patrick Leahy (D-VT), who are joint co-sponsors of the legislation in that chamber.”[22] Thus, it is Congress’ opportunity to address a major law stemming from the war on drugs that unjustly punished Black Americans and affected countless families.
[1] Eliminating a Quantifiably Unjust Application of the Law Act of 2021, H.R. 1693, 117th Cong. (1st Sess. 2021).
[2] See id. (stating the EQUAL Act seeks to eliminate the disparities in offenses where the cocaine involved is cocaine base).
[3] Id.
[4] Id. at § 2 (indicating the EQUAL Act would eliminate increased penalties for cocaine offenses where the cocaine involved is cocaine base i.e., crack cocaine).
[5] See Press Release, Jerrold Nadler, Chairman, House Committee on the Judiciary (July 21, 2021) (asserting the EQUAL Act would eliminate the unjust sentencing disparity between crack cocaine and powder cocaine offenses during the opening statement at the markup of the EQUAL Act).
[6]See, e.g., Race & Justice News: Eliminating Crack/Cocaine Sentencing Disparity, The Sentencing Project,https://www.sentencingproject.org/news/race-justice-news-senate-hearing-crack-cocaine-sentencing-disparity/ (last visited April 25, 2022) (stating that the Biden administration submitted testimony for a Senate hearing in support of the EQUAL Act).
[7] See Pub. L. No. 99-570, 100 Stat. 3207 (1986).
[8] See supra note 5 (adding that by the 1990s, the average federal sentence for Black defendants was 49% higher than the average for white defendants because of the Anti-Drug Abuse Act of 1986).
[9] See Cracks in the System: Twenty Years of the Unjust Federal Crack Cocaine Law, AM. CIV. LIBERTIES UNION (stating that in the two decades following the passage of the Anti-Drug Abuse Act of 1986, there has been no scientific or penological differentiation between crack cocaine and powder cocaine to justify the sentencing disparities).
[10] See The EQUAL Act: Why Congress Must #EndTheDisparity Between Federal Crack & Powder Cocaine Sentences, Families Against Mandatory Minimums, https://famm.org/wp-content/uploads/Crack-Disparity-One-Pager.pdf (last visited April 25, 2022) (highlighting that in 2019, 81% of those convicted of crack cocaine crimes were Black, even though whites and Latinos account for over 66% of crack cocaine users.”).
[11] Pub. L. No. 100-690, 102 Stat. 4181 (1988).
[12] See Pub. L. No. 100-690, 102 Stat. 4181 (1988).
[13] See e.g., supra note 5 (noting that four years after Congress passed the Anti-Drug Abuse Act, “the average federal sentence for Black defendants was [49%] higher than the average for white defendants.”); Joseph J. Palamar, et all., Powder Cocaine and Crack Use in the United States: An Examination of Risk for Arrest and Socioeconomic Disparities in Use, 149 Drug and Alcohol Dependence 108, 114 (2015) (concluding crack cocaine users were at higher risk of being arrest compared to those using powder cocaine).
[14] Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010).
[15] See id. at § 2 (reducing the cocaine sentencing disparity and eliminating the existing mandatory minimum for possession of crack cocaine).
[16] Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010).
[17] See e.g., Dorsey v. United States, 567 U.S. 260 (2012), United States v. Pearson, 555 F. App’x 916 (11th Cir. 2014) (holding the Fair Sentencing Act of 2010 does not apply retroactively).
[18] See First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018).
[19] See First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018) (stating the Fair Sentencing Act’s Section 2 and 3 apply retroactively).
[20] See Terry v. United States, 141 S. Ct. 1858 (2021) (affirming the 11th Circuit’s decision and holding that “a sentence reduction under the First Step Act is available only if an offender’s prior conviction of a crack cocaine offense triggered a mandatory minimum sentence”).
[21] See Eliminating a Quantifiably Unjust Application of the Law Act of 2021, H.R. 1693, 117th Cong. (1st Sess. 2021) (stating a sentencing court may review motion by “the defendant, the Bureau of Prisons, the attorney for the Government, or on its own motion”).
[22] See DeJarion Echols, U.S. Senate Must Pass the EQUAL Act, Minnesota Spokesman Recorder, (Dec. 23, 2021)https://spokesman-recorder.com/2021/12/23/u-s-senate-must-pass-the-equal-act/.