The EQUAL Act (S.79), a bill that would finally equalize the punishment for crack cocaine and powder cocaine offenses, was able to pass the House of Representatives with an 85 percent vote last year, and it has over 60 percent support in the Senate (and the support of the leadership), but it is still just sitting around with no vote in sight. Readers all seem to be wondering why this is the case. The bill would finally equalize the punishment for crack cocaine and powder cocaine offenses.

Doug Berman On The Senate
Doug Berman

Doug Berman, a law professor at Ohio State University, questioned in his blog entitled “Sentencing Law and Policy” whether or if the Senate would “move quickly to finally right a 35-year wrong” after the House of Representatives had passed EQUAL the previous November.

Nope. Kevin Ring, president of FAMM, provided the following explanation for why thousands of families are still waiting for the Senate to act in a commentary that was published the previous week:

The Senate is broken. And the EQUAL Act is perhaps the best and most infuriating example of just how broken the Senate has become — it can’t even pass a bill with broad, bipartisan support and fix a 36-year-old mistake…

So what’s the problem? Senators may have to vote on amendments that get offered to the bill and they are scared. They fear that members in the small minority who oppose the bill will offer amendments that sound good, yet are bad policy, known as “poison pills.”

This fear has always existed, especially in election years, but in recent years it has grown to the point of creating paralysis. In the past, supporters of important reforms would stand together in opposition to obviously ill-intentioned amendments. But senators today obsess over voting against poison pills they think will hurt their re-election chances, and leaders of the Senate’s majority party fear these votes could lose their side’s control of the chamber. The Democrats control the Senate now, but this has been the practice of both parties in recent years.

The result is an unwillingness to move even popular reforms like the EQUAL Act. Filibuster or not, the Senate is broken

Include another explanation in addition to that one. The Senate is readily distracted in the same way that I can easily divert my dog’s attention by calling out “Squirrel, squirrel!” and pointing in a certain direction. The crisis in Ukraine calls for a comprehensive bill on weapons, a mass shooting calls for a discussion on the regulation of firearms, and a Supreme Court decision leak calls for a slew of bills on abortion… Every major breaking news story interferes with the business of the Senate. They are essentially like a child with a severe case of ADHD. With every new news story, they rush to try and get an “attaboy” from the public by making various claims in relation to the position they feel is most beneficial for themselves.

  • A bill to fund the fight against the next COVID wave,
  • battles over gun control
  • and abortion (sure to be fired up with Supreme Court decisions on both due this month),
  • and the fact that a third of senators are up for re-election, all make focus on EQUAL – which should be an easy lift – difficult.

In his statement from the previous week, Berman stated, “I do not think this commentary signals that the EQUAL Act cannot still get passed, but it reinforces my fear that the climb is far more uphill than it seemingly should be.”

The Marijuana Opportunity Reinvestment and Expungement Act (H.R. 3617), the First Step Implementation Act (S. 1014), and EQUAL are only some of the criminal justice reform bills currently pending in Congress. EQUAL is the one that is the closest to being passed into law. If the Senate is unable to hold a final vote on the EQUAL bill, it is difficult to conceive that any other measure will be able to make it to the desk of the President.

Medium, The Senate’s Unwillingness to Pass the EQUAL Act Highlights Its Dysfunction (June 2, 2022)

Sentencing Law and Policy, Hoping it is not yet time to give up on passage of the EQUAL Act (June 2, 2022)

PBS, Congressional stalemate makes a quick compromise on COVID funding unlikely (June 1, 2022)