U.S. Senator Tim Kaine joined Senators Cory Booker (D-NJ) and Dick Durbin (D-IL) and U.S. Representatives Kelly Armstrong (R-ND-At-Large) and Hakeem Jeffries (D-NY-8) in introducing the bipartisan Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act, legislation to eliminate the federal crack and powder cocaine sentencing disparity and apply it retroactively to those already convicted or sentenced. Currently, there are harsher statutory criminal penalties for crack cocaine than powder cocaine despite there being no pharmacological difference and no scientific evidence that crack cocaine is more addictive or dangerous than powder cocaine. This bill would ensure that penalties for powder cocaine and crack cocaine are equal.
“It’s important that we address the substance use epidemic in our communities and penalize drug use, but we should do so in a manner proportionate to the offense,” said Senator Kaine. “There is no scientific basis for different criminal sentences for crack cocaine versus powder cocaine, and the EQUAL Act is a commonsense reform to our criminal justice system that would eliminate this unfair disparity.”
In 1986, Congress passed legislation that mandated harsher minimum sentences for individuals who were convicted of distributing or being in possession of crack cocaine versus powder cocaine. This meant someone convicted of distributing 5 grams of crack cocaine served the same 5-year mandatory minimum prison sentence as someone convicted of distributing 500 grams of powder cocaine. This 100:1 sentencing disparity has disproportionately impacted people of color and helped fuel mass incarceration. According to the U.S. Sentencing Commission, in Fiscal Year 2021, 77.6% of crack cocaine trafficking offenders were Black, whereas most powder cocaine trafficking offenders were white or Hispanic.
In 2010, the Fair Sentencing Act was passed, which reduced the disparity in cocaine sentencing from 100:1 to 18:1. The EQUAL Act would completely eliminate the disparity by ensuring the same quantities of crack cocaine and powder cocaine trigger the same statutory criminal penalties, and apply this change retroactively to those already serving sentences for crack cocaine offenses. While Attorney General Merrick Garland has directed federal prosecutors to end charging disparities between crack and powder cocaine, unlike the EQUAL Act, this does not apply retroactively.
Joining Kaine, Booker, and Durbin in cosponsoring the EQUAL Act in the Senate are Senators Lindsey Graham (R-SC), Thom Tillis (R-NC), Chris Coons (D-DE), Cynthia Lummis (R-WY), and Rand Paul (R-KY).
In September 2021, the EQUAL Act passed the House with a wide bipartisan margin, 361-66.