By David M. Greenwald
Washington, DC – One of the biggest legacies of the so-called war on drugs and the crack hysteria of the 1980s was federal sentencing disparities that punished possession of crack cocaine, a drug used overwhelmingly by Blacks, much harsher than the punishment for possession of powder cocaine, a drug used predominantly by whites.
In several attempts to alleviate this policy that many consider racist, Congress has narrowed the gap, but not alleviated it.
In a memo last week from Attorney General Merrick Garland, he has attempted to address these issues within the Justice Department through General Policies regarding Charging, Pleas and Sentencing in Drug Cases.
The Justice Department, the memo states, “supports elimination of the crack-to-powder sentencing disparity and has testified before Congress in support of the EQUAL Act, S. 79, which would remove that disparity.”
As the Department has explained: “First, the crack/powder disparity is 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.”
As documented by the Sentencing Commission, “the crack/powder sentencing differential is still responsible for unwarranted racial disparities in sentencing.”
Finally the AG notes, “the higher penalties for crack cocaine offenses are not necessary to achieve (and actually undermine) our law enforcement priorities, as there are other tools more appropriately tailored to that end.”
The ACLU said in a release in response to the memo, “The disparity between crack and powder cocaine, which are chemically identical, is a 36-year vestige of the racist war on drugs.”
While that disparity was reduced in 2020 from 100 to 1 to 18 to 1, it remains discriminatory in the view of many reformers.
“Attorney General Garland’s instruction is a bold move toward ending the 18:1 disparity that currently exists in federal sentencing laws — a disparity that punishes crack offenses with greater severity than offenses involving the same amount of powder cocaine,” the ACLU stated.
“We applaud Attorney General Merrick Garland for taking a step no other attorney general has taken, and moving to end a decades-long, unjustifiable, and racist policy,” said Anthony Romero, executive director of the ACLU.
For years, civil rights leaders like the Reverend Al Sharpton have cited the law as “unfair and racially tinged” in helping to drive racial disparities in federal sentencing.
In a statement he applauded the Justice Department for this move.
“This was not only a major prosecutorial and sentencing decision – it is a major civil rights decision,” he said in a statement. “The racial disparities of this policy have ruined homes and futures for over a generation.”
But not everyone agreed. Senator Chuck Grassley called the move a “usurpation of legislative authority.
“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,” he said in a statement Friday.
He added, “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. That hard-won compromise has been jeopardized because the attorney general inappropriately took lawmaking into his own hands.”
Because in the federal system, like the state system, the vast majority of cases plead out rather than go to trial, the DOJ has a great deal of discretion with respect to pleas and sentencing in drug cases.
The memo notes that “mandatory minimum sentences based on drug type and quantity have resulted in disproportionately severe sentences for certain defendants and perceived and actual racial disparities in the criminal justice system.”
Thus, Garland lays out that “in cases in which Title 21 mandatory minimum sentences are applicable based on drug type and quantity, prosecutors should decline to charge the quantity necessary to trigger a mandatory minimum Sentence…” under certain conditions.
These include: “The defendant’s relevant conduct does not involve: the use of violence, the direction to another to use violence, the credible threat of violence, the possession of a weapon, the trafficking of drugs to or with minors, or the death or serious bodily injury of any person.”
For charging crack cocaine, the AG recommends, “If charging a mandatory minimum term of imprisonment under Title 21 for a drug offense involving crack cocaine is deemed warranted under this memorandum, prosecutors should charge the pertinent statutory quantities that apply to powder cocaine offenses.”
They add, “At sentencing, prosecutors should advocate for a sentence consistent with the guidelines for powder cocaine rather than crack cocaine. 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.”
“For 36 years, the sentencing disparity between crack and powder cocaine has fueled mass incarceration and devastated communities of color and Black families in particular, while failing to provide any public safety or public health benefit.,” the ACLU’s Romero said.
He added, “Attorney General Garland’s actions today take a meaningful step toward addressing one of the most egregious policies created by the war on drugs.”
Cynthia W. Roseberry, acting director of the ACLU’s Justice Division added, “The sentencing disparity between crack and powder cocaine is racist, was never based in sound policy, and has not improved public safety. Far from it — it is science fiction that has driven racial disparities, bloated our carceral system, and ruined thousands of lives.”