What if the same speeding ticket carried a different fine depending on the part of town you were in? This would strike most people as unfair, but such a disparity is not that far removed from current federal drug law, which applies dramatically different penalties to crimes involving two different forms of cocaine.
Bipartisan legislation known as the “EQUAL Act” that would correct this disparity is now approaching the finish line — after originating in 1986. At that time, the brutal reality and prevalence of crack addiction, typified by the tragic death of basketball star Len Bias, led to passage of the Anti-Drug Abuse Act, which required a person to have 100 times more powder cocaine than crack cocaine to trigger the same sentence.
Whatever the intentions, the result was that many Americans — c — were sentenced to decades in prison for the equivalent of a few sugar packets of crack, while those who had the same amount of powder cocaine received a small fraction of the penalty. As recently as 2019, 81 percent of those convicted in federal courts for crack offenses were Black Americans.
With the summer recess and midterm election beckoning, however, floor time is precious and public awareness of this issue is limited, as it luckily affects just a small percentage of the population.
In 2018, about 5.5 million people above age 12 — in a nation of 330 million people — told government researchers they had used cocaine at some time, including 757,000 who had used crack. Crack is cocaine powder that has been processed to create a rock crystal, which is smoked. While crack is chemically identical to powder cocaine, the sentencing disparity was not irrational given that smoking crack compared with snorting powder produces a more immediate and intense, albeit more ephemeral, “high,” characteristics that research shows create a greater propensity for dependence.
The overriding distinction, however, is method of use. Other drugs such as methamphetamine and heroin, also are more problematic if smoked or injected — yet the law doesn’t mete out punishment based on how the user opts to ingest them. The punishment disparity is also unwarranted since powder cocaine apparently can quickly and relatively easily be turned into a slightly smaller amount of crack simply by microwaving it with baking soda.
Gradually, progress has been made on reducing this disparity.
In 2010, the bipartisan Fair Sentencing Act narrowed the sentencing disparity to 18-to-1 and repealed the five-year mandatory minimum sentence for possessing even the smallest amount of crack. Then came the First Step Act of 2018 signed by then-President Trump; it retroactively applied the Fair Sentencing Act, a move that has resulted in more than 3,000 sentencing reductions to date, with an average adjustment of six years.
Still, even with the current reduced disparity, a defendant convicted of distributing less than 50 grams of crack — a little over one-tenth of a pound — is subject to a 10-year federal mandatory minimum prison sentence, while about two pounds of powder cocaine are required to push a case across the threshold from the five- to 10-year mandatory sentence.
Now a remedy for this punishment inequity — the EQUAL Act — is within reach. Last fall, the U.S. House passed the bill with a whopping 361 bipartisan votes. In the Senate, at least 10 Republicans appear to be on board, paving the way to the 60 votes needed for approval.
By instituting parity for all types of cocaine, the EQUAL Act would shave 21,300 years off federal crack sentences over the next ten years, saving taxpayers more than $750 million. Moreover, most studies have found that incarcerating more people for low-level drug offenses — and keeping them in prison longer — does not reduce recidivism, and that “small fish” who are locked up for selling modest amounts of drugs are quickly replaced by others in the market.
More broadly, research indicates that treatment-oriented approaches are more cost-effective and humane for addressing drug possession cases and those involving defendants who are not leaders of criminal organizations, but rather users who sell small quantities to friends or relatives to support their own addiction. Interventions such as LEAD (Law Enforcement Assisted Diversion) and adult treatment courts have reduced substance abuse while avoiding many of the costs of incarceration, both for individuals behind bars and for taxpayers.
The EQUAL Act is backed by organizations such as the Major City Police Chiefs Association and National District Attorneys Association. Right-of-center groups from Americans for Tax Reform to the American Legislative Exchange Council have endorsed it as well, and Senate co-sponsors include two members rated among the body’s nine most conservative: Cynthia Lummis of Wyoming and Rand Paul of Kentucky. Even some who oppose the EQUAL Act don’t argue the difference in form warrants a disparate penalty; they want to equalize the penalties at the higher level.
Most drug cases are prosecuted under state law, and it’s notable that center-right states like South Carolina and Ohio have reduced their crack penalties in recent years to eliminate this disparity. Now, more than four-fifths of states treat both the same. Passage of the EQUAL Act might encourage remaining states like Arizona and Missouri to follow suit.
It’s no secret that most high-profile legislation slated for Senate action since the 2020 election, from Biden’s “Build Back Better” plan to election reform, has gone up in smoke. The EQUAL Act, by contrast, appears more likely to receive a rare bipartisan embrace.
Perhaps that’s because policymakers of all stripes face the same question: whether justice that is not equal is justice at all.
Marc Levin, Esq. is Chief Policy Counsel for the Council on Criminal Justice. Follow him on Twittter @marcalevin