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Attorney General Garland Orders Federal Prosecutors to End Sentencing Disparities Between Crack and Powder Cocaine

by Matt Clarke

On December 16, 2022, U.S. Attorney General Merrick Garland issued a memorandum to all federal prosecutors instructing them to seek to have defendants charged with drug offenses involving crack cocaine charged such that the sentence would be the same as if it involved powder cocaine, unless the defendant threatened or employed violence during the offense or in past offenses, had a significant managerial role in the trafficking of drugs, or has ties to a large-scale criminal organization or violent gang.

The sentencing disparity had its origin in a moral panic during the mid-1980s brought about by largely fictitious reports about “crack babies” and “cracked out” teenagers committing horrific crimes. Congress responded to the manufactured crisis by passing the Anti-Drug Abuse Act of 1986 (“Act”), which was co-sponsored by then-Senator Joe Biden. The Act required that persons convicted of crimes involving crack cocaine be sentenced as if the crime involved 100 times as much powder cocaine. Thus, a person convicted of possession of 5 grams of crack cocaine would receive the same sentence as a person convicted of possessing 500 grams of powder cocaine.

Because most of the people who used crack cocaine were Black while most who used powder cocaine were white, the Act generated decades of racial disparities in sentencing for drugs that are pharmacologically similar. This racial disparity was first addressed in the Fair Sentencing Act of 2010, which reduced the multiplier for crack cocaine from 100 to 1 down to 18 to 1, hardly “fair” but at least an improvement. In 2018, the First Step Act made those changes retroactive, resulting in the release of around 3,000 federal prisoners, some of whom had been imprisoned for decades after having been convicted of possession of small amounts of crack cocaine.

The Garland memorandum specifically instructs prosecutors to avoid triggering minimum sentences based on drug type and quantity if (1) the crime does not involve the use or threat of violence, possession of a weapon, trafficking drugs to minors, or serious bodily injury or death of any person and (2) the defendant did not have a managerial role in the trafficking of significant amounts of drugs, ties to a large-scale criminal organization or violent gang, or a criminal history involving the use or threaten of violence, possession of illegal firearms or multiple instances of distributing significant quantities of drugs.

If the foregoing criteria are met, prosecutors are instructed to reduce the amount of crack cocaine in the charged crime sufficiently enough to eliminate the sentencing disparity. If only some of the criteria are met, prosecutors are instructed to weigh the considerations set out in the memorandum and the General Policies Regarding Charging, Pleas, and Sentencing memorandum issued earlier in 2022 to determine whether charging a crime with a mandatory minimum sentence is appropriate. The evaluation is to be done without regard to the defendant’s eligibility for a below-mandatory-minimum sentence based on the safety valve in 18 U.S.C. § 3553(f) or substantial assistance under 18 U.S.C. § 3553(e).

The memorandum instructs prosecutors to apply the same criteria when determining whether to file for a recidivist enhancement under 21 U.S.C. § 851 and directs them not to seek such an enhancement “simply to exert leverage to induce a plea or because a defendant elected to exercise his right to trial.”

Garland supports the EQUAL act, proposed legislation that was intended to equalize the sentencing for crack and powder cocaine. The bill has floundered in Congress, and a compromise resulted in a reduction to 2.5 to 1 instead of equalization. Even so, it has yet to pass the Senate. 

Sources: Garland memorandum, reason.com, axils.com

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