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March 23, 2022

Is Congress finally on the verge of equalizing crack and powder cocaine sentences?

I asked in this post a few weeks ago, "Why is getting the EQUAL Act through the US Senate proving so challenging?".  Excitingly, as detailed in this new Bloomberg piece, headlined "GOP Support Clears Senate Path for Bill on Cocaine Sentencing," it now looks like a bill to equalize crack and powder sentences now may have a ready path to passage. Here are the exciting details:

Ten Senate Republicans have signed on to a bill that would eliminate the federal sentencing disparity between drug offenses involving crack and powder cocaine, paving the way for likely passage in the evenly divided chamber where 60 votes are needed for most legislation.

“That looks like you’d get to 60, really,” said Kentucky Senator Rand Paul, one of the 10 GOP co-sponsors of the EQUAL Act.  “This is the Democrats’ prerogative, it’d be nice if they would bring it to the floor.”

Senate Majority Leader Chuck Schumer signed onto the bill as a co-sponsor on Monday, but his office did not immediately respond to questions on his plans for floor debate.  The bill passed the House, 361-66, in September and President Joe Biden, who campaigned on criminal justice reform, is expected to sign the measure when it reaches his desk.

The bill, sponsored by Judiciary Chairman Dick Durbin, an Illinois Democrat, and New Jersey Democratic Senator Cory Booker, eliminates the lower quantity thresholds for crack cocaine, which the bill’s proponents have said unjustly targets Black offenders.

In 2020, the U.S. Sentencing Commission found that 77.1% of crack cocaine trafficking offenders were Black and 6.3% were White.  Yet White people are more likely to use cocaine in their lifetime than any other group, according to the 2020 National Survey of Drug Use and Health.

Current laws establish an 18-to-1 ratio on federal penalties for crack and powder cocaine, meaning anyone found with 28 grams of crack cocaine would face the same five-year mandatory prison sentence as a person found with 500 grams of powder cocaine....

Sentencing disparities between crack and powder cocaine were originally created in 1986 with a 100-to-1 ratio.  The Sentencing Commission issued a special report in 1995 stating the 100-to-1 ratio punished low-level crack dealers “far more severely” than high-level suppliers of powder cocaine, despite there being no pharmacological difference between the two forms of the drug.  Then-President Bill Clinton and Congress rejected the commission’s recommendations to amend the law.

Fifteen years later, Congress reduced the sentencing disparity from to 18-to-1, but advocates have fought to further narrow the sentencing gap....

Senator Jerry Moran, a Kansas Republican, recently signed on as a co-sponsor of the bill after studying the issue with constituents, he said, and determining this would be a step toward “criminal justice fairness.” Moran said it is his “expectation that this bill will be considered by the Senate.”

A few related posts on the EQUAL Act:

March 23, 2022 at 09:11 PM | Permalink


Doug: If passed, would this Bill have retroactive effect, leading to the re-sentencing of current inmates, and then the release of thousands of long-term crack inmates from Federal prisons?

Posted by: Jim Gormley | Mar 24, 2022 6:54:05 AM

Good question, Jim. I am pretty sure the version of the law that is garnering support includes this provision: "(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."

In other words, judges would have discretion to (but not be required to) reduce past crack sentences after passage of this Act.

Posted by: Doug B. | Mar 24, 2022 7:16:49 AM

My potential concern with the language Doug quotes is that it could be read as authorizing a plenary resentencing and so goes beyond remediating the crack:powder disparity. It could treat offenders convicted of crack offenses better than those convicted of powder offenses by giving them a second bite at the apple, ability to show post-offense rehabilitation, etc. It may also fail to offer relief to all whose sentences were adversely affected by the disparity.

I would probably have written differently along the lines of: the court shall determine what sentence would likely have been passed at the time of sentencing if the offense involved powder and shall resentence to that term if less than the imposed term. I understand, though, if that wasn't politically palatable because it would call for reductions for some offenders who Congress doesn't want to see walk out of prison sooner.

Posted by: Jason | Mar 24, 2022 12:03:58 PM

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