On July 21, 2021, the House Judiciary Committee voted 36-5 to approve H.R. 1693, the Eliminating a Quantifiably Unjust Application of Law (EQUAL) Act. The Act seeks to eliminate the disparity in authorized sentences for offenses involving crack versus powder cocaine. The committee’s strong bipartisan vote bodes well for the bill’s chance for passage on the House floor, and bipartisan support is already building in the Senate. But it has taken nearly 35 years to reach this point, and the EQUAL Act’s prognosis is anything but certain.
Congress created the disparity between sentences for crack and powder cocaine thirty-five years ago under the Anti-Drug Abuse Act of 1986. The legislation established stiffer penalties including mandatory minimum sentences for drug offenses and, based on prevailing myths about crack being more dangerous to users and to the public, lawmakers insisted that a person possessing five grams of crack would trigger the same mandatory minimum sentence as someone caught with 500g of powder cocaine.
In 1995, this disparity was criticized by the United States Sentencing Commission (USSC) as lacking scientific justification, and it was joined by organizations including the American Bar Association. The 100-to-1 disparity was intended to stop drug kingpins from bringing the drugs into the country, but as captured in a 2007 USSC Report to Congress, 95% of those prosecuted for crack offenses were American citizens, more than 80% serving the tougher sentences were Black, and most of their offenses were lower-level ones.
Despite the devastating impact that prosecutions for crack offenses were having on communities of color, Congress would not revisit the disparate treatment for crack versus powder cocaine offenses for 25 years. This was even despite efforts by proponents of the original 100-to-1 ratio, such as then-Senator Joe Biden. It would not be until the Fair Sentencing Act of 2010 that a hard-fought political compromise lowered the quantity ratio between the two forms of the drug from 100-to-1 to 18-to-1.
Optimism over the progress on the EQUAL Act must be balanced against Congress's continued willingness to place rhetoric over science when it comes to drugs. For example, the 117th Congress recently voted to renew a policy that will continue to subject more people to mandatory minimum sentences for offenses involving synthetic opioids. Even though such "war on drugs" strategies have not historically reduced the flow of drugs into the country or overdose deaths, legislators continue to back a harsh opioid policy that has - and will continue to - produce similar racial disparities as did the original sentencing scheme for crack cocaine. Hopefully, after 35 years of enforcing a law that has failed to produce desired results, the time for passage of the remedial EQUAL Act has come.
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