A Tale of Two Bills (Part 1 – Fixing a ‘Crack’ in the Law) – Update for April 11, 2022 | Legal Information Services Associates LLC

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EQUAL ACT PICKING UP STEAM…

Last Monday, Sen. Roy Blunt (MO) became the 11th Republican to sign onto the EQUAL Act (S.79/H.R.1693), joining a spectrum of Republicans from Sen. Lindsay Graham (SC) to Sen. Susan Collins (ME) adding their names to the bill.

The significance of Blunt’s co-sponsorship is that with full Democrat support for the measure and at least 11 Republican votes, EQUAL’s passage is assured if it is put up to a vote. The legislation was approved by the House of Representatives last fall.

If it becomes law, the EQUAL Act will make statutory punishment for crack cocaine no different than for powder cocaine. Currently, crack is penalized at an 18:1 ratio, meaning that while a half kilo of coke powder carries a five-year mandatory minimum, only 28 grams of crack is needed to get a defendant the same sentence. The EQUAL Act is fully retroactive, meaning that thousands of current sentences involving crack could be reduced.

The question always is when – or if – the Senate will bring the bill up for a vote. That decision lies with Senate Majority Leader Chuck Schumer (D-NY). Axios reported that Schumer – who also is an EQUAL Act co-sponsor – met last Tuesday with advocates and formerly incarcerated leaders, where he described the legislation as “a priority.” He has given no indication of timing on EQUAL, but he told Axios last week he does plan to bring the legislation to the floor.

The Hill said last Wednesday that EQUAL’s having collected 60 sponsors is a “threshold that is expected to trigger a hearing in the coming weeks.” Politico says the measure “may already have the votes to get to President Joe Biden’s desk.”

The Congressional Black Caucus sent Schumer a letter last Monday urging quick passage of EQUAL. The letter said in part

We write in support of bringing the EQUAL Act (H.R. 1693/S. 79) to the Senate Floor for consideration as soon as possible. It would eliminate the crack and powder cocaine sentencing disparity and ensure that those who were convicted or sentenced for a federal offense involving cocaine can receive a re-sentencing under the new law. According to a recent analysis from the U.S. Sentencing Commission, approximately 827 individuals would benefit from the prospective section of the bill each year, and 7,787 offenders in BOP custody would be eligible to seek a modification of their sentence based on the retroactive section. In total, the EQUAL Act will reduce excessive prison time by 67,800 years, and 91% of the individuals who will get this critical relief are Black.

Politico optimistically reported last week that “other bipartisan federal legislation that could reach President Biden’s desk this year include bills that abolish federal life without parole sentences for juveniles, prevent the use of acquitted conduct in sentencing, extend Medicaid to otherwise eligible individuals within 30 days of their release from incarceration, and invest in treatment for people with mental illness in the justice system.”