Brett Tolman: Utah’s federal delegation has the chance to fix cocaine sentencing

There is bipartisan agreement that sentencing disparities must be corrected.

(J. Scott Applewhite | AP photo) The Capitol is seen Feb. 9, 2021.

Cocaine probably isn’t what you would think of as a unifying policy topic but, in 2021, it’s bringing both sides of the aisle together at the federal level.

Lawmakers on Capitol Hill are faced with a decision to either support fair sentencing in federal crack and powder cocaine convictions, or continue to support an antiquated law that harshly over-penalizes individuals for being caught with one form of cocaine over the other.

Despite the historically contentious nature of drug policy debate, this legislation has support from both sides of the aisle. But to make it past the finish line, Republicans will be the deciding factor of success.

In an incredibly politically divisive time, when the left and right do come together on a congressional policy item like criminal justice, it’s worth paying attention to.

The EQUAL Act is such a bill, and it’s a short and simple fix to a decades-long problem in the nation’s War on Drugs. It would end the sentencing disparity for those convicted of crack or powder cocaine charges. Utah’s own conservative Rep. Burgess Owens is one of those co-sponsors who proudly stands behind the bill. It may seem like an odd policy to spend effort on, but the bill’s implications for individuals’ lives are tremendous.

Under current federal sentencing laws, an individual caught with 500 grams of powder cocaine would get the same five-year mandatory minimum federal prison sentence as someone caught with just 28 grams of crack cocaine. This is due to the 18-to-1 sentencing disparity for crack versus powder cocaine convictions.

The difference is drastic considering the two substances have effectively no chemical differences, and it needs to be changed. After all, if it’s even remotely about “following the science,” here’s a good example of a place to start.

The 18-to-1 sentencing disparity is harmful and illogical but, prior to 2010, the law was even worse. The crack to powder cocaine disparity was an extraordinary 100-to-1 until Congress changed the law in 2010 to the current ratio.

In 2018, President Donald Trump went even further and laid the groundwork for the EQUAL Act by making the reduced sentencing reform retroactive. This allowed some of those who were serving unduly long sentences for crack cocaine, from the prior 100-to-1 laws, to petition the court to be released from incarceration.

The change from 100-to-1 to 18-to-1 did not result in more crime or cocaine use. In a 2015 report to Congress on the impact of the change, the United States Sentencing Commission found “there has been no sizable increase in offense seriousness for crack cocaine offenders as measured by drug quantity, weapon involvement, and role adjustments. There has also been no overall increase in criminal history of crack cocaine offenders.”

This tells us a lot about the effectiveness of the laws in the first place.

Utah is one of many states with no disparity between crack and powder cocaine in their state sentencing laws — and the laws work just fine here.

Now, policymakers on both sides of the aisle are realizing that the disparity shouldn’t exist at all. There is no logical reason to penalize individuals with vastly different sentences because they were caught with a different form of the same drug.

As a young federal prosecutor, I was frequently reminded that “the hallmark of fairness in the administration of justice is consistency.” At its heart, the crack/powder disparity has resulted in inconsistent treatment by the justice system of defendants committing the same crimes.

Even the U.S. Department of Justice is urging Congress to pass the EQUAL Act because it recognizes the sentencing disparity was largely “based on misinformation about the pharmacology of cocaine and its effects.” And now that the information has been corrected, the facts speak for themselves.

More importantly, however, is the fact that 73% of Utahns support the legislation. Utah Policy published these polling results in August 2021, showing that even 69% of those who identify as strong conservatives in Utah support the EQUAL Act.

Utah’s delegation has the opportunity to fix an unjust and inconsistent federal law and doing so will be in line with what their constituents want. It’s unclear whether the EQUAL Act will pass or not but Utahns will be watching to see what their elected officials decide.

Brett L. Tolman | executive director, Right On Crime

Brett Tolman is the executive director of Right on Crime and was the United States Attorney for Utah from 2006 to 2009.