US Attorney General Merrick Garland took action on December 16 to end the federal sentencing disparity between crack and powder cocaine. His order came just as the Senate was failing to reach a deal to eliminate the disparity—which has fueled racialized mass incarceration for decades—from law. Advocates welcome Garland’s move, but its signficant limitations mean that they still stress the urgent need for legislation.
Current federal drug sentences treat crack cocaine 18 times more harshly than the equivalent quantity of powder, even though crack is just cocaine processed with baking soda and water (the main practical difference being a faster, briefer high because crack is smoked). The disparity stems from the 1986 Anti-Drug Abuse Act, coauthored by then-Senator Joe Biden, which set the ratio at 100:1. The Fair Sentencing Act of 2010 cut that to 18:1—a reform that the First Step Act of 2018 made retroactive. The continuing disparity has led to crack convictions making up a quarter of people in federal prison, the overwhelming majority of whom are Black and facing longer sentences than for any other drug. Biden has pledged to end the disparity since his 2020 presidential election campaign.
Garland’s new memo gives guidelines to US attorneys nationwide. He instructs them to be cautious when filing charges in drug cases that will trigger mandatory minimum sentences, because of “disproportionately severe sentences for certain defendants and perceived and actual racial disparities in the criminal justice system.”
He writes that “prosecutors should decline to charge the quantity necessary to trigger a mandatory minimum sentence” if a defendant doesn’t meet certain criteria, including: violence or the threat of it, supplying drugs to minors, involvement in gangs or trafficking organizations, or a past record involving violence or other major charges.
Garland instructs prosecutors to generally charge crack cases as if they are powder.
The second part of the memo directly addresses crack cocaine cases. It restates the justice department’s position in favor of repealing the sentencing disparity: “the crack/powder disparity is simply not supported by science, as there are no significant pharmacological differences between the drugs,” it reads. “The crack/powder sentencing differential is still responsible for unwarranted racial disparities in sentencing.”
Garland instructs prosecutors to generally charge crack cases as if they are powder. For example, current federal law punishes trafficking of 28 grams of crack cocaine with a five-year mandatory minimum sentence; it would take 500 grams of powder cocaine to trigger the same sentence. Under Garland’s guidence, a prosecutor would charge that crack case as 28 grams of powder, so that mandatory minimum won’t be triggered.
“Most people think the judge has the most power in the courtroom and they’re wrong, it’s the prosecutor,” Molly Gill, vice president of policy for Families Against Mandatory Minimums (FAMM), told Filter. “If you have a mandatory minimum sentence, you’re essentially making them the judge, jury and executioner in a case because they decide what the charges are. If the charges carry a mandatory minimum sentence, the prosecutor has also decided your sentence.”
“[Prosecutors must now decide], does this case even warrant a mandatory minimum sentence?” Gill continued. “If there was no violence, you weren’t playing a leadership role in the offense, if there are other sympathetic facts, the prosecutor may decide ‘I’m not even going to charge you a mandatory minimum sentence.’ The second question is, what’s the sentence for powder instead, because that’s the sentence you’re going to get.”
Garland’s guidelines are a big step forward, but have major limitations. There is no retroactivity, meaning people previously charged and sentenced unequally for crack will not be resentenced and released. And people with criminal records for crack can’t apply to have those sealed or expunged.
Crucially, too, an executive policy is only protected by the administration currently in power. A future president could cancel Garland’s guidelines with the stroke of a pen. That’s exactly what happened after President Trump took office: Attorney General Jess Sessions revoked his Obama-administration predecessor’s guideline of non-interference in states’ cannabis legalization or decriminalization laws. An even more harmful example was when Trump ended Deferred Action for Childhood Arrivals (DACA), which offered some basic protections to undocumented people who were brought to the US as minors.
This fragility underlines the magnitude of the Senate’s failure to reach a deal this month. The EQUAL Act, a Democrat-led bill to abolish the crack-powder sentencing disparity and make it retroactive, passed the House in September 2021 with strong bipartisan support. Some senators were negotiating to attach it to a federal government spending bill, thus forcing a vote. Senators then reached a tentative agreement to reduce—but not eliminate—the sentencing disparity, and kill the retroactive provisions. But when the government funding bill was released on December 20, the EQUAL Act was not included.
Gill wants to see the EQUAL Act reintroduced next session.
Despite the support of 11 Republican senators, opposition from the likes of Mitch McConnell (R-KY), Chuck Grassley (R-IA) and Tom Cotton (R-A) prevented the legislation from moving forward, Gill said. “It was a situation where politics trumped fairness and the right thing to do.”
Gill wants to see the EQUAL Act reintroduced next session. The politics are hard to predict—Democrats have gained one more seat in the Senate, while Republicans will take narrow control of the House. The fact that a large number of House Republicans joined Democrats in passing the EQUAL Act last year is no guarantee of a repeat.
“FAMM is not giving up,” Gill said. “We have 7,800 families with loved ones in prison serving crack sentences that are completely unfair … and those people deserve to have those sentences reevaluated.”