House Passes EQUAL Act to Erase Sentencing Disparity Between Crack and Powder Cocaine

The Senate now has the chance to finally end one of the most disastrous legacies of the drug war.

The House of Representatives passed legislation today that would finally erase the sentencing disparity between federal crack and powder cocaine offenses.

By a wide bipartisan vote of 361-66, the House passed the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act, H.R. 1693. The legislation would reduce the penalties for federal crack cocaine offenses to the same level as those for powder cocaine offenses, and it would make those changes retroactive, meaning federal crack offenders currently serving prison sentences will be eligible to have their sentences reduced.

Similar legislation has been introduced in the Senate by Sen. Cory Booker (D-N.J.), where it faces a less certain future. The White House endorsed the legislation in June, and if it passes Congress, the law would close the book on one of the most regrettable pieces of President Joe Biden's legacy.

In 1986, then-Sen. Biden (D–Del.) co-sponsored the Anti-Drug Abuse Act, one of the most disastrous laws passed in the 1980s by lawmakers posturing as tough-on-crime. The law created a 100-to-1 sentencing disparity between crack and powder cocaine offenders, the former of whom were predominantly black. The result was that someone possessing five grams of crack cocaine would receive the same five-year mandatory minimum sentence as someone with 500 grams of powder cocaine, despite there being little to no pharmacological difference between the two substances. 

The U.S. Sentencing Commission reported that black people made up nearly 77 percent of all federal crack cocaine convictions in fiscal year 2020.

Criminal justice advocates have lobbied for decades to roll back the law. In 2007, Biden endorsed legislation that would have completely eliminated the disparity. A compromise bill, the Fair Sentencing Act of 2010, reduced it from 100-to-1 to 18-to-1.

In 2018, the FIRST Step Act made the Fair Sentencing Act's reductions retroactive, leading to the release of roughly 3,000 federal crack offenders. 

One of the first to receive a sentence reduction under the FIRST Step Act was Matthew Charles, who was released from prison in 2019. Charles was sentenced in 1995 to 35 years in federal prison for a crack cocaine offense.

"If crack and powder were treated the same, my sentence could have been 15 years, not 35," Charles testified before the Senate Judiciary Committee this June. "But the 100-to-1 disparity was in place at that time, and I honestly didn't seem like someone who deserved a break."

Inside prison, Charles found religion, turned around his life, and became a model inmate. He is now a criminal justice reform advocate.

The EQUAL Act, introduced by Rep. Hakeem Jeffries (D–N.Y.), benefited from broad bipartisan support in the House. Conservative Rep. Louie Gohmert (R–Tex.), a co-sponsor of the bill, said in a letter supporting the legislation that the federal sentencing disparity was "unfair and unnecessary for public safety."

"I never saw a need for a cocaine sentencing disparity in Texas, and I see no need for a cocaine sentencing disparity federally," said Gohmert, a former Texas state judge.

However, the legislation faces a much tougher road in the Senate. Sen. Chuck Grassley (R–Iowa), the ranking Republican on the Senate Judiciary Committee, told the Sioux City Journal last week that there's not as much Republican support in the Senate for eliminating the sentencing disparity. He doubts that he and Sen. Dick Durbin (D–Ill.), the chairman of the Judiciary Committee, can muster the 60 votes needed to get the Equal Act to the Senate floor.

"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 told the newspaper.

Sen. Tom Cotton (R–Ark.), of the staunchest defenders of mandatory minimum sentencing in Congress, wrote an op-ed in National Review last week suggesting that the proper solution to the crack-powder cocaine sentencing disparity, if it must be changed, is to raise the sentences of powder cocaine offenses to match those of crack.

Criminal justice groups and civil liberties advocates applauded the passage of the bill in the House.

"For 35 years, the sentencing disparity between crack and powder cocaine, based on neither evidence nor science, has resulted in higher sentences that are disproportionately borne by Black families and communities," Aamra Ahmad, ACLU senior policy counsel, said in a press release. "We applaud the House for passing the EQUAL Act, which will finally end that disparity, including for thousands of people still serving sentences under the unjust disparity who would now have the opportunity to petition courts for a reduced sentence."