Attorney General Merrick Garland issued new guidance on Friday essentially eliminating the disparity in federal sentencing for the distribution of crack cocaine versus powder cocaine, a policy that has long punished crack offenders, and people of color, more severely.
In two memos, Garland said the sentencing disparity was “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.”
Prior to the guidance, which takes effect in 30 days, crack cocaine triggered harsher sentencing than its powder form.
Offenses involving 500 grams of powder cocaine carried the same 5-year mandatory minimum prison time as offenses involving 28 grams of crack cocaine, according to a report by the Congressional Research Service, a nonpartisan public policy research institute. The report stated that the disparity was even higher prior to the passage of the Fair Sentencing Act of 2010, which brought the sentencing ratio down to 18 to 1, from 100 to 1.
This disparity has long been seen as unfairly targeting people of color, which Garland addressed in his guidance, stating that the “crack/powder sentencing differential is still responsible for unwarranted racial disparities in sentencing,” and that 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.”
According to the United States Sentencing Commission, in 2020, 77% of individuals convicted of crack cocaine offenses were Black, while historically 66% of crack cocaine users have been white or Hispanic.
Crack cocaine became prevalent in the 1980s, sparking a nationwide “war on drugs” and leading to the passage of two federal sentencing laws concerning crack cocaine in 1986 and 1988 that created the discrepancies, according to The Sentencing Project, which advocated for overhauling the sentencing guidelines.
The road to sentencing reform for crack offenders was partly put into motion in 2018 with the First Step Act, which, in part, shortened mandatory federal prison sentences, including for those in prison for pre-2010 crack cocaine offenses.
The new guidance was applauded by several groups, including the Leadership Conference on Civil and Human Rights, which called it "a big win and a historic step in the right direction toward eliminating the unjust disparity between crack and powder cocaine sentencing."
"The crack/powder disparity created a harmful and racially discriminatory sentencing scheme that continues to target and criminalize Black and Brown communities. We commend Attorney General Garland for addressing this wrong, and we are proud to support him," Maya Wiley, president and CEO of the organization, said in a statement.
In the new guidance, Garland also reaffirmed how prosecutors should approach each phase of the criminal justice process, stressing that federal prosecutors should ensure the “fair administration of justice” by making “individualized assessments in charging and sentencing based on the facts and circumstances of each case.”
This includes cutting down on the proliferation of mandatory minimum sentences, he said, reserving them for situations in which they pose a danger to the community, or harm to others, among other considerations.
He also pointed to the Justice Department prioritizing “prosecutorial resources on combating violent crime.”