WASHINGTON D.C. (WSET) — Virginia Senator Tim Kaine, alongside his colleagues, has introduced the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act. The bipartisan legislation aims to eliminate the federal sentencing disparity between crack and powder cocaine and apply it retroactively to those already convicted or sentenced.
Currently, statutory criminal penalties for crack cocaine are harsher than those for powder cocaine, despite there being no pharmacological difference or scientific evidence that suggests that crack cocaine is more addictive or dangerous. The EQUAL Act would ensure that both substances carry the same penalties.
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The disparity in cocaine sentencing dates back to 1986 when Congress passed legislation mandating harsher minimum sentences for individuals convicted of distributing or possessing crack cocaine compared to powder cocaine. A person convicted of distributing 5 grams of crack cocaine served the same mandatory minimum prison sentence of five years as someone convicted of distributing 500 grams of powder cocaine, creating a 100:1 sentencing disparity.
This discrepancy has disproportionately affected people of color and contributed to mass incarceration. According to the U.S. Sentencing Commission, in the fiscal year 2021, 77.6% of crack cocaine trafficking offenders were Black, while most powder cocaine trafficking offenders were white or Hispanic.
"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," Sen. Kaine said. "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."
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In 2010, the Fair Sentencing Act reduced the sentencing disparity from 100:1 to 18:1. The EQUAL Act aims to completely eliminate the disparity, ensuring that the same quantities of both substances trigger the same criminal penalties. The bill also applies this change retroactively to individuals serving sentences for crack cocaine offenses.
Although Attorney General Merrick Garland has directed federal prosecutors to end charging disparities between crack and powder cocaine, this directive does not apply retroactively. In September 2021, the EQUAL Act passed the House with a broad bipartisan margin of 361-66.
The full text of the legislation is here.