U.S. attorney general moves to end sentencing disparities on crack, powder cocaine

Authored by washingtonpost.com and submitted by Not_Campo2
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Attorney General Merrick Garland on Friday instructed federal prosecutors to end charging and sentencing disparities in cases involving the distribution of crack and powder cocaine, after decades of law enforcement policy disproportionately treating crack offenders more punitively. Wp Get the full experience. Choose your plan ArrowRight Garland’s move effectively seeks to eliminate the significant difference in the amount of powder cocaine relative to crack cocaine that is required to be in a suspect’s possession to trigger mandatory minimum federal sentences upon conviction.

Critics of the longtime policy have said it is a relic of Washington’s misguided War on Drugs era that targeted Black and Brown communities, resulted in overpopulated prisons and strained federal and local resources at the expense of more-effective strategies.

Garland had said during his confirmation hearing last year that he opposes the sentencing disparities, and legal experts said his memo to U.S. attorneys is an effort to formally align Justice Department policy.

“This is an example of the Department of Justice doing exactly what it has the power to do without an active Congress — to say: ‘We as prosecutors are going to be fair and just and not treat Brown and Black people as if they are somehow worse than White people,’” said Maya Wiley, president and chief executive of the Leadership Conference on Civil and Human Rights, a coalition of more than 200 groups.

Sen. Charles E. Grassley (R-Iowa), however, assailed Garland’s move. Grassley, who supports significantly reducing the disparity but not eliminating it, said the attorney general risked upsetting legislative negotiations on Capitol Hill.

“A bipartisan group of lawmakers, including myself, just recently came to an agreement on statutory changes that could possibly be included in the year-end funding bill,” Grassley said. “That hard-won compromise has been jeopardized because the attorney general inappropriately took lawmaking into his own hands.”

Proponents of treating crack dealers more punitively have argued that cocaine in crack form is faster-acting and capable of producing more-intense highs. Under current federal policy, possession of 28 grams of crack cocaine would trigger a mandatory minimum prison sentence of five years, compared with 500 grams of powder cocaine.

Support for such a disparity has eroded over the past several decades, including among law enforcement organizations.

“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,” said Jim Pasco, executive director of the National Fraternal Order of Police.

He said the union does not believe the new guidelines on cocaine sentencing will adversely affect the efforts of law enforcement.

Garland’s memo to the nation’s U.S. attorneys directs prosecutors to charge “pertinent statutory quantities that apply to powder cocaine” when pursuing crack cases and to “advocate for a sentence consistent with powder cocaine rather than crack cocaine.”

The move, long sought by civil rights advocates, comes as the Equal Act, a bill that would eliminate the disparity, has been stalled in the Senate amid objections from some Republicans after it passed in the House last year with bipartisan support.

Joe Biden, then a U.S. senator from Delaware, crafted the 1986 crime bill that initially set a 100-to-1 ratio between powder and crack cocaine to trigger mandatory minimum sentences. The Fair Sentencing Act 0f 2010 reduced the ratio to 18 to 1. The Biden administration endorsed the Equal Act last year.

In a statement, Sen. Cory Booker (D-N.J.), one of the co-sponsors of the Equal Act, said Garland’s move is a recognition of the injustice caused by the sentencing disparities.

“But this is not a permanent answer and won’t help those already serving an unjust sentence,” Booker said, reiterating his call for lawmakers to approve the legislation.

Garland aides said the new guidelines, which will take effect within 30 days, are part of a broader set of changes the attorney general is making to the Justice Department’s charging policies. The department under Garland continues to support the passage of the Equal Act, aides said; unlike a potential legislative change to federal policy, they noted, Garland’s memo would not retroactively apply to previous convictions.

In April, Grassley and Sens. Mike Lee (R-Utah), Roger Wicker (R-Miss.) and Lindsey O. Graham (R-S.C.) proposed legislation that would reduce the ratio of powder to crack cocaine that would trigger mandatory minimum sentences to 2.5 to 1.

Unlike the Equal Act, however, that bill would achieve greater parity in part by increasing penalties for powder cocaine users.

Those Republicans cited an analysis in January from the U.S. Sentencing Commission that said studies in 2005 and 2010 found that crack cocaine offenders had higher recidivism rates than those who used marijuana, powder cocaine, heroin or methamphetamines.

“These statistics show the need for a close look at all available government data before we consider an approach to flatten sentencing for crack and powder cocaine offenses,” the senators wrote.

Some conservative groups were supportive of Garland’s directive.

Jeremiah Mosteller, a senior policy analyst at Americans for Prosperity, said his group is “thrilled to see the Biden administration take action to mitigate one of the many harmful and failed policies in federal criminal law. This is an encouraging step towards a fairer criminal justice system.”

During his confirmation hearing in February 2021, Garland said the inequitable sentencing in crack and powder cocaine cases had a “disparate impact on communities of color.”

“There’s no justification for this, and we should end this,” Garland said at the time. He also said that powder cocaine “is as dangerous with respect to crime rates as crack cocaine, both of which have now been unfortunately overtaken by fentanyl and the opioids. But both of those are bad problems, [and] equalizing penalties for crack and powder should have no difference with respect to our ability to fight violent crime.”

Though studies have shown that historically most crack cocaine users have been White or Hispanic, a report from the U.S. Sentencing Commission last year found that 77 percent of those convicted of crack trafficking offenses in 2020 were Black.

Garland’s memo cited Justice Department testimony last year to the Senate Judiciary Committee that sentencing disparities are “simply not supported by science, as there are no significant pharmacological differences between the drugs: they are two forms of the same drug, with powder readily convertible into crack cocaine.”

Federal crack prosecutions have fallen significantly in recent years. The U.S. Sentencing Commission said there were 1,088 crack cocaine trafficking offenders in fiscal 2021, accounting for 6 percent of all offenders sentenced for a drug trafficking offense. The total represented a 32 percent decrease from four years earlier, the commission said.

Eight states maintain sentencing disparities between crack and powder cocaine, after Oklahoma became the latest state to eliminate the gap, according to Families Against Mandatory Minimums, a nonprofit advocacy group. Those are Arizona, Iowa, Maine, Missouri, New Hampshire, North Dakota, Vermont and Virginia.

Kevin Ring, the organization’s president, called Garland’s move a “great step to correct one of the long-standing injustices in the federal code,” though he noted the reach of the federal policy change will be modest given the declining number of crack prosecutions.

“What you’re looking at is a universe in which a couple thousand people a year will have more-proportional sentences,” Ring said. “It’s probably more about the principle” of aligning the Justice Department’s policy priorities.

iAmSamFromWSB on December 16th, 2022 at 23:45 UTC »

so is that down for the crack or up for the powder?

hexbatch on December 16th, 2022 at 21:10 UTC »

30 + years late, hundreds of billions dollars short and millions of ruined lives later

But that was the best time to change these laws. The next best time is now

Not_Campo2 on December 16th, 2022 at 21:05 UTC »

As mentioned in the article, the 2010 Fair Sentencing Act adjusted the ratio from 100-1 to 18-1 under President Obama. This move would change it to 1:1.

The ultimate argument is whether such a disparity is justified at all. While powder cocaine and crack cocaine is derived from the same base substance, opponents to this move argue that crack cocaine is faster acting and can give a stronger high, and thus deserves harsher penalties for less weight.

Garland argues that there is no pharmacological difference between the two, and that powder cocaine can readily be turned into crack cocaine.

Edited for clarity and format.