EQUAL ACT
Will “First Step” Make a Leap Forward?: How the EQUAL Act could offer a Path to Freedom for Individuals Serving Harsh Sentences related to Crack Cocaine
On January 28, 2021, U.S. Senators Cory Booker and (D-NJ) and Dick Durbin (D-IL) introduced the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act. By repealing federal laws that punish offenses related to crack cocaine more severely than powder cocaine -- and by applying these changes retroactively -- the Act may significantly expand the scope of the 2018 First Step Act. Read more to find out how the EQUAL Act could benefit individuals incarcerated for federal crack offenses.
A Crack in the Foundation: The Origins of Federal Drug Policy related to Cocaine
When Congress first passed the federal Controlled Substances Act (CSA) in 1970, lawmakers made no distinction between crack and powder cocaine. However, by 1986, hysteria around the crack-cocaine epidemic gripped Congress, leading to passage of the Anti-Drug Abuse Act. Among other harsh penalties, the Act imposed a 100-to-1 sentencing disparity between offenses related to “cocaine base” (commonly known as crack) versus “cocaine” (commonly used as a powder). Individuals convicted of possessing just five grams of crack were subject to the same mandatory minimum sentence as individuals possessing 500 grams of powder cocaine. Since that time, countless groups – including the ACLU – have exposed the law as being driven largely by racialized fears rather than objective science. In 2007, the United States Sentencing Commission reported that an astonishing eighty percent of individuals serving the toughest sentences related to crack cocaine were black.
Closing the Chasm: How the Fair Sentencing Act and the First Step Act Attempted to Address Sentencing Disparities
Seeking to rectify this devastating disparity, in 2010, Congress passed the Fair Sentencing Act. When introduced, the legislation had the same aim as today’s EQUAL Act – to eliminate federal sentencing disparities between crack and powder cocaine. However, the bill was bitterly debated, and in the end, lawmakers compromised on reducing the crack-to-powder sentencing disparity from 100-to-1 to 18-to-1. While the law marked an important step forward, it did not apply retroactively.
Recognizing that the Fair Sentencing Act did little to help individuals who had already been unfairly sentenced, in 2018, Congress passed the bipartisan First Step Act. Among other key changes related to drug policy, the First Step Act made sections of the Fair Sentencing Act retroactive. The First Step Act authorized defendants convicted of crack offenses to file a motion to reduce their sentence.
Filling in the Remaining Cracks: How the EQUAL Act Could Help Federal Inmates
As its name suggests, the First Step Act has hardly gone far enough to reach all inmates affected by the crack-to-powder disparity. The CSA outlines three tiers of penalties for illegally manufacturing, distributing, or dispensing crack (or possessing crack with the intent to manufacture, distribute, or dispense it). Crimes involving the highest quantities of crack are subject to a ten-year mandatory minimum sentence, crimes involving lower amounts of crack are subject to a five-year mandatory minimum, and crimes involving a minimal amount of crack are not subject to a minimum sentence. This year, the U.S. Supreme Court held in Terry v. United States that the First Step Act’s retroactivity clause only applied to individuals convicted of offenses that carry a minimum mandatory sentence. This means that the First Step Act did not reach many individuals convicted of offenses involving minimal amounts of crack, but who still may be serving lengthy sentences.
The EQUAL Act seeks to address these gaps. Short and sweet, the text of the legislation aims to eliminate the sentencing disparity between crack and powder offenses entirely. The bill accomplishes this by removing clause (iii) of section 401(b)(1)(A) and clause (iii) of section 401(b)(1)(B) of the CSA. 21 8 U.S.C. 841(b)(1)(A). The EQUAL Act also repeals subparagraph (C) of section 1010(b)(1) and subparagraph (C) of section 1010(b)(2) of the Controlled Substances Import and Export Act. 21 18 U.S.C. 960(b)(2). Additionally, the text of the EQUAL Act contains a retroactivity clause that appears to allow any defendant convicted of a federal crack offense to move the court for a reduced sentence. This means that, if passed, the EQUAL Act would likely apply to those offenders who were not subject to a mandatory minimum sentence.
Preparing for the Future: What Individuals Convicted of Federal Crack-Related Offenses should Know
The EQUAL Act is currently set to be voted on by the House. It remains to be seen whether the Act will pass in its current form, if at all. If the Act does pass, eligible federal inmates and their lawyers should be prepared to submit a motion for a reduced sentence to the court. Under the Act, the sentencing judge has full discretion in deciding whether to grant a reduced sentence. The judge may consider any of the broad factors laid out in 18 U.S. Code § 3553, including “the history and characteristics of the defendant” as well as the need for the sentence, among others. Like a motion for compassionate release, successful motions for a reduced sentence require thorough preparation. The inmate must be able to tell a compelling personal story as well as present sound legal research to support their case. Therefore, eligible individuals should seek legal counsel and be sure to consider what evidence and arguments they wish to present in advance.
Key Takeaways:
· If the EQUAL Act passes, individuals who were ineligible for a reduced sentence under the First Step Act may now be able to apply for relief.
· The judge may consider a broad range of factors in determining who receives a reduced sentence – including the personal characteristics of the defendant and the need for the sentence.
· Inmates and their attorneys should start thinking about whether they would be eligible for relief in the event the EQUAL Act passes. Eligible inmates may wish to begin collecting mitigating evidence so they are prepared to submit a motion for a reduced sentence in the future.
2nd Chair has extensive experience drafting motions for a reduced sentence. We will be keeping close tabs on the EQUAL Act. If you need help preparing a motion for a reduced sentence, please get in touch.