The EQUAL Act would finally close the cocaine sentencing disparity

March 19, 2021
In The News

Kevin Ring worked on Capitol Hill during the crafting of the 1994 Crime Bill, which imposed tougher prison sentences and bolstered the War on Drugs. As he remembers it, members of both parties were obsessed with appearing tough on crime.

“You couldn’t go far enough,” said Ring, who’s now the president of sentencing reform organization Families Against Mandatory Minimums. “Three strikes? How about two strikes? How about one strike? We couldn’t be punitive enough to satisfy what we thought was public anger about crime and drugs.”

Over 25 years after the 1994 Crime Bill and 35 years after the Anti-Drug Abuse Act, the War on Drugs is considered by experts and government officials alike to be one of the biggest failures of American governance in the 20th century. Mandatory minimums, three-strike rules, and expanded felony classifications were not responsible for drops in the crime rate and have not significantly reduced drug use. Instead, these policies ushered in an era of mass incarceration, incited exorbitant federal cost, and have promoted wholly racist outcomes in which one of every three Black boys are expected to go to prison in their lifetimes, compared to just one in every 17 white boys, according to research from the ACLU.

The cocaine sentencing disparity is one of the most notable and obvious manifestations of the racist impact of these laws. The 1986 Anti-Drug Abuse Act created a 100 to 1 disparity between the amount of crack cocaine that triggers a federal mandatory minimum sentence versus powder cocaine. Five grams of crack mandated a five-year sentence — 500 grams of powder cocaine was required to trigger the same sentence. (Though an Asbury Park Press study found that Black usage of crack was only slightly higher than white usage, crack has been stereotypically associated with Black people while powder cocaine is thought of as a richer, whiter drug.)

The disparity has been diluted by Congress over the last decade — the 2010 Fair Sentencing Act reformed the disparity to be 18 to 1 instead of 100 to 1, and the 2018 First Step Act made the reform retroactive, allowing people incarcerated for crack offenses to apply for resentencing under the new law.

Now, a small group of lawmakers — a bipartisan one in the House, and two Democrats in the Senate — wants to do away with the disparity altogether and provide the opportunity for retroactive sentence reduction.

“That’s something that you don’t see happen very often, is the government essentially admitting that they were wrong,” said Maritza Perez, the director of national affairs at the Drug Policy Alliance. “But this is one area where there is bipartisan support and where politicians say they messed up.”

The Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act represents the original aim of the Fair Sentencing Act, before it was negotiated down to lessen instead of eliminate the disparity and leave out retroactivity in order to pass with bipartisan support, Rep. Bobby Scott (D-VA), a cosponsor of the EQUAL Act and an original sponsor of the House version of the Fair Sentencing Act, told Vox.

While those earlier bills were enormously bipartisan, there’s no guarantee the EQUAL Act passes the evenly divided Senate, given this exact proposal was watered down in earlier attempts. Right now, no Republicans in the upper chamber have signed on board, let alone the 10 it would take to overcome the filibuster. But if it does pass, advocates are hoping the EQUAL Act can be the launching point for a host of legislation combating racism.

And in the wake of last summer’s racial reckoning, Ring said passing the bill and eliminating the cocaine sentencing disparity should be a “no-brainer,” considering how obviously and overtly racist the policy is.

“There’s lots of ways the justice system discriminates,” Ring said. “They’re not always easy to untangle, because they’re driven by biased humans. ... But this is in the criminal code, so there’s really no excuse for it.”

What would the bill fix?

Arrests for cocaine-related offenses have fallen dramatically from their peak around 1990, according to data from Asbury Park Press, so the law would be most impactful as a means of correcting the disparity’s legacy of racism for people still serving sentences for crack.

The 1986 Anti-Drug Abuse Act was written based on Congress’s conviction that crack cocaine was more addictive than powder cocaine and incited violent behavior. But those fears proved to be misguided — the two forms are nearly chemically identical; studies have consistently found that crack is no more addictive than powder cocaine, and there is little scientific basis for linking violent crime with crack. The biggest difference between the two forms is that crack is far less expensive than powder cocaine, meaning those involved in its trade were low-level dealers and users being punished as if they were kingpins.

In 2009, one year before the Fair Sentencing Act, the US Sentencing Commission found that 79 percent of convicted crack offenders were Black.

“It exemplified racial injustice in the system,” said Kara Gotsch, deputy director of The Sentencing Project. “The 100 to 1 system epitomized everything wrong with the criminal justice system, and the racism and bias involved in it.”

Eighty-one percent of convicted crack offenders in 2019 were Black, according to research from FAMM.

The EQUAL Act’s retroactivity would be critical to achieving some justice for incarcerated drug offenders, advocates said. FAMM research shows the retroactivity feature of the First Step Act has already led to the reduction of over 3,000 crack cocaine sentences, by an average of six years.

Heather Rice-Minus, senior vice president of advocacy and church mobilization at Prison Fellowship, said there are about 9,000 people still serving time for federal crack cocaine offenses, and about 1,500 new federal sentences issued each year.

While the First Step Act has led to thousands of sentence reductions, the New York Times reported that application of the policy has been somewhat arbitrary due to judicial discretion — there is no guarantee for incarcerated people that a federal judge will accept their application, and the US Sentencing Commission does not track rejections.

The EQUAL Act provides for retroactivity but similarly does not guarantee resentencing. But advocates emphasized the importance of individualized review, both from the perspective of an incarcerated person and because it brings politically important partners like National Defense Attorneys Association on board.

Rep. Scott said individualized review in resentencing allows judges to more effectively resolve issues like “the girlfriend problem,” in which a drug dealer’s girlfriend may have just driven him to a deal or passed a message but received an exorbitant sentence based on the mandatory minimum.

“(Retroactivity) could have a profound effect on people who have been given sentences, particularly on conspiracy,” Scott said. “Because on conspiracy, you’re addled with the whole weight of the operation, even if part of it was negligible.”

Sentencing reform has a bipartisan history

Gotsch, from The Sentencing Project, lobbied Congress during the negotiations over the Fair Sentencing Act. She said the only way the bill was going to pass was if it ended up being bipartisan. The House passed the bill by a voice vote.

“The day it passed in the House, I remember being told by a Blue Dog Democrat’s office, we support you on the policy,” Gotsch said. “But if they do a roll call, we’re not going to vote for it.”

Ultimately, Republicans did support the negotiated-down product, which Ring attributes to the obviously racist impact of the original policy, to where standing in the way of the bill might be just as politically damaging as appearing soft on crime.

“Race was the only explanation,” Ring said. “There was no other way to justify it, and no one was that overtly racist.”

Republicans’ actions — such as unanimously voting against Democrats’ George Floyd Justice in Policing Act — may still have racist outcomes, but advocates say cocaine sentencing reform is so blatantly necessary that they are optimistic it will pass.

The First Step Act, the last significant criminal justice reform bill to pass, was approved in the Senate by an 87-12 vote.

Rep. Hakeem Jeffries (D-NY) told Vox he believes the bipartisan momentum from the First Step Act will carry through to the EQUAL Act.

“Criminal justice reform can bring together the left and the right, progressives and conservatives, Democrats and Republicans, the NAACP and the Koch brothers, the ACLU and the Heritage Foundation and all points in between,” Jeffries said in a statement. “As I said when we passed the First Step Act three years ago, it was not the end. It was not even the beginning of the end.”

Rice-Minus said she expects more Republicans to sign on to the bill quickly in the House because Reps. Don Bacon (R-NE) and Kelly Armstrong (R-ND) have already cosponsored it.

But in a statement to Vox, Bacon was less optimistic about the timeline, even as he said that eliminating the cocaine sentencing disparity is only one part of a broader justice reform push he wants to tackle.

“While I am optimistic it will be voted on in the House this Congress, I don’t have a projected timeline for the bill at this stage and hope to gain more bipartisan support as it makes its way through the legislative process,” he said.

The Senate is where it will be more critical to find Republican support, considering the chamber’s 50-50 split.

Thus far, only Sens. Cory Booker and Sen. Dick Durbin (D-IL) have signed on.

Sen. Chuck Grassley, who worked with Durbin to introduce and shepherd the First Step Act through the Senate, would be a critical part of any bipartisan negotiation. In a statement to Vox, a spokesperson for Grassley said he was receptive to working with Democrats on the EQUAL Act, but that that process had not begun yet.

“Sen. Grassley would certainly be open to reviewing and discussing it with his colleagues, and wouldn’t rule out support at this point,” his spokesperson said. “But that review and discussion just hasn’t happened yet.”

Multiple other Republican senators who supported the First Step Act did not respond to requests for comment.

Still, with former president Donald Trump, who often professed inconsistent views on criminal justice reform, out of the way, advocates think the time is ripe for reforming sentencing and other aspects of the justice system — and that the EQUAL Act will be a good barometer of their belief.

“This is a good, rightful shot to see what this Congress’s appetite is for reform,” Ring said. “It will be interesting to see if dynamics have changed.”

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