Biden Administration Moves to End Disparities in Cocaine-Related Sentencing
The Department of Justice (DOJ) is moving to end disparities in sentencing for cocaine-related crimes. Current charging guidelines instruct prosecutors to seek harsher charges and sentences for those convicted of crack-related crimes as opposed to crimes involving powder cocaine. Now, in a new memo, Attorney General Merrick Garland instructed federal prosecutors to end those charging and sentencing disparities.
Under the current law, there is a five-year mandatory prison sentence for offenses involving just 28 grams of crack cocaine, while the same mandatory sentence would apply to offenses involving 500 grams of powder cocaine.
According to the U.S. Sentencing Commission, the disparities have led to a disproportionate number of Black individuals being convicted of cocaine-related offenses as opposed to white defendants. The Commission also found that 77 percent of those convicted in 2020 of crack trafficking offenses were Black.
In the memo, Attorney General Garland says that “the crack/powder disparity is simply not supported by science.”
Under the new guidelines, prosecutors are directed to charge the quantities that apply to powder cocaine for crack cases and “advocate for a sentence consistent with powder cocaine rather than crack cocaine.”
The memo instructs prosecutors to factor in whether violence was involved in the crime, while also reviewing if individuals had a "significant managerial role in the trafficking of significant quantities of drugs" and whether they are part of a cartel or a violent gang, before advocating for the powder cocaine guidelines.
Garland’s memo also reiterated the department’s support for the bipartisan Equal Act (H.R. 1693), which would end the crack-to-powder sentencing disparity in federal law.
That bill has not advanced in the Senate. It passed the House with bipartisan support last year.
However, the move by Attorney General Garland to end the sentencing disparity did not sit well with some members of Congress, who are currently considering the Equal Act.
Senator Chuck Grassley (R-IA), ranking member on the Judiciary Committee said in a statement, “The attorney general’s guidance to prosecutors today is baffling and misguided. Not only does this instruction demand that prosecutors ignore the text and spirit of federal statutes, it undermines legislative efforts to address this sentencing disparity.”
Members of the federal law enforcement community have taken varied perspectives on the issue. National Fraternal Order of Police executive director Jim Pasco told the Washington Post, “While initially we adamantly opposed any change to the status quo, over time our thinking has evolved as there’s been more clarity in terms of the science.”
Conversely, in testimony at a hearing on the EQUAL Act before the Senate Judiciary Committee last year, Steven Wasserman of the National Association of Assistant U.S. Attorneys told lawmakers the disparity was justified based on the “significant differences in the criminal histories, recidivism rates, and involvement with weapons and violence between those who traffic in powder cocaine and those were traffic in crack.” Wasserman also stressed concerns about lowering the penalties for any drug offense given the ongoing overdose crisis.
“Should Congress ultimately determine that action is warranted to equalize the penalties between powder cocaine and crack cocaine, NAAUSA would urge members to give strong consideration to lowering the quantity thresholds for powder cocaine to match the existing thresholds for crack cocaine, thereby achieving the goal of equality of punishment across the board,” Wasserman suggested.