DOJ makes move to end disparities in crack, powder cocaine cases

The Justice Department (DOJ) has moved to end sentencing differences between crack and powder cocaine offenders to address racial disparities in the law. 

Attorney General Merrick Garland said in a memo to U.S. attorneys on Friday that mandatory minimum sentences based on drug type and quantity have cause significantly different sentences for defendants and led to perceived and real racial disparities in the criminal justice system. 

He cited prior DOJ testimony stating that the difference in sentencing guidelines between crack and powder cocaine are not supported by science as there are no major pharmacological differences between the two. They are instead two forms of the same drugs, and powder can be easily converted into crack. 

Garland said in the memo that the higher sentencing guidelines for crack use are not necessary to achieve and actually undermine law enforcement priorities. 

The memo states that prosecutors should charge a defendant based on the pertinent statutory quantities that apply to powder cocaine offenses if a mandatory minimum sentence for use of crack would be relevant. 

“Where a court concludes that the crack cocaine guidelines apply, prosecutors should generally support a variance to the guidelines range that would apply to the comparable quantity of powder cocaine,” the memo states. 

Garland said prosecutors should be candid with the court, a probation office and the public about a defendant’s conduct and culpability, including the type and quantity of drugs used.

A DOJ spokesperson told The Hill that prosecutors will be instructed to reserve mandatory minimum sentences for those who are violent or have a history of violence, those who lead major drug trafficking organizations or those who cause serious bodily injury or death. They said the memo will go into effect in 30 days.

The Anti-Drug Abuse Act of 1986 created a 100-to-1 ratio of sentencing guidelines between powder and crack cocaine to reach the level needed for mandatory minimums, despite neither being particularly more dangerous. Black people make up most convictions for crack-related offenses, leading to the racial disparity. 

The Fair Sentencing Act of 2010 reduced the ratio to 18-to-1. A bill known as the EQUAL Act to completely eliminate the disparity passed the House last year but has not made progress in the Senate.

Sen. Cory Booker (D-N.J.), the lead sponsor of the EQUAL Act, said in a statement that the memo recognizes the injustice of the disparity and takes steps to fix it, but it is not a permanent answer. 

“I have worked tirelessly to secure a filibuster-proof majority in the Senate for the EQUAL Act and build a bipartisan coalition including 11 Republican senators who support a 1:1 sentencing ratio,” he said. “We must pass the EQUAL Act now to write this policy change into law, following the lead of 41 states that have already done so.”