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Congress Has One Last Chance to Abolish the Crack Cocaine Sentencing Disparity

Merrick Garland’s recent memo was an important first step, but only Congress can fully end the sentencing disparities.

U.S. Attorney General Merrick Garland announces charges against former Honduran President Juan Orlando Hernández for cocaine trafficking in April 2022. While Garland took steps toward ending the sentencing disparity between crack and powder cocaine last week, the Justice Department is still engaged in a "war on drugs" ravaging Central America and the lower-income communities across the U.S.

Reformers applauded Attorney General Merrick Garland on Friday for instructing federal prosecutors to treat crack cocaine and powder cocaine as the same drug when seeking “mandatory minimum” prison sentences. However, the Justice Department’s new policy carves out several exceptions for prosecutors seeking lengthy sentences. To finally put an end to this historic injustice, advocates say, Congress must strike the cocaine sentencing disparities from the federal books and free people from prison who are currently serving mandatory minimum sentences. Such legislation passed the House but has stalled in the Senate as lawmakers face year-end deadlines.

A pillar of institutionalized racism during the drug war’s darkest hours, sentencing disparities between crack and powder cocaine at the state and federal level are one reason why the United States incarcerates more of its population than any other nation on the planet. In the 1980s and 1990s, powder cocaine was associated with the white and wealthy, while crack carried massive stigma and was associated with poor people and people of color. As Garland wrote in a memo to federal prosecutors, the sentencing disparity is “simply not supported by science,” as crack and powder cocaine are two versions of the same drug.

The so-called “crack epidemic” invited a brutal, nationwide police crackdown in Black neighborhoods, but when opioid overdoses in white communities began to rise in the 2000s, policy makers changed their tune and began to see drug use as a public health issue rather than a criminal one. Research as recent as 2015 shows that crack cocaine users tend to be lower-income and much more likely to be arrested than powder cocaine users, which is likely the result of police profiling.

“I think it’s really frustrating how long this change has taken, especially because for a long time now we’ve known that the crack versus cocaine disparity is not based in science, it was based in racist sentiments toward the people that the federal government believed used and sold crack cocaine, especially Black communities,” said Michael Collins, the senior director of government affairs at the racial justice group Color Of Change, in an interview.

As the media peddled racist hysteria about crack cocaine, then-Sen. Joe Biden and other lawmakers passed anti-drug legislation in 1986 that targeted crack and would disproportionately fill prisons with Black men for decades, tearing families and communities apart. By 1990, the average prison sentence for a Black defendant facing drug charges was 49 percent longer than the average sentence for white drug defendants, according to the American Civil Liberties Union. Several states have reduced their own cocaine sentencing disparities, but even in state prisons, Black people on average are locked up longer than whites. A large federal sentencing disparity remains.

At the urging of then-President Obama, Congress passed compromise legislation in 2010 reducing the disparity between the amount of powder and crack cocaine needed to trigger mandatory minimum sentencing from a 100:1 to 18:1 ratio. Under the current federal policy, possession of 28 grams of crack cocaine would trigger a mandatory five years in prison in addition to any other charges, but no less than 500 grams of powder cocaine would trigger the same mandatory sentence. That’s a massive difference in the volume of drugs seized by police, who use the threat of mandatory minimums to extract confessions and plea deals, including from innocent people.

Now, thanks to years of campaigning by Black activists and civil rights groups, Biden and his Justice Department support the EQUAL Act, a bill that would finally strike the mandatory minimum sentencing disparity from the federal books. Crucially, the bill would work retroactively, allowing courts to reduce sentences for people currently serving mandatory prison time for crack cocaine. House Democrats passed the EQUAL Act with a number of Republicans in September, but partisan bickering has reportedly stalled the bill in the Senate.

Remetta Mims, a Black advocate who says her husband is in prison due to the cocaine sentencing disparity, said lawmakers must act now to pass the EQUAL Act before its momentum is crushed under the legislative scramble as year-end deadlines quickly approach.

“I came to [Washington] D.C. earlier this year to talk to lawmakers about fixing this injustice with the EQUAL ACT,” Mims said in a statement shared by the FAMM Foundation, a group that seeks to abolish the criminalization of families. “Well, I am talking again because it still hasn’t passed, and time is running out.”

At some point, lawmakers in both parties realized the cocaine sentencing disparity is deeply unfair but have so far been unable to agree on reform. Republicans have argued for reducing the disparity to a 2.5:1 ratio with exceptions for people suspected of violence or major drug trafficking. The GOP spent much of the midterm election season spreading misinformation and scaring the public about “crime,” drugs crossing the border and even lifesaving harm reduction policies.

“It’s frustrating in so many ways that we are still having this debate over 100:1 or 18:1 and I’ve seen 2.5:1, and that is not based in science,” Collins said.

Sen. Chuck Grassley (R-Iowa), a longtime champion of Republican plans to reduce the cocaine sentencing disparity but not eliminate it, told the Washington Post that Garland “jeopardized” a bipartisan compromise that could be included in year-end legislation by taking “lawmaking into his own hands.”

“The demonization of the drug still seems to work politically for Republicans and conservatives, and Democrats still haven’t reckoned with that,” Collins said.

Progressives and civil rights groups, on the other hand, want to nix the disparity without exceptions and start helping people reduce their sentences after years in prison. Unlike the EQUAL Act, Garland’s memo does nothing for convicted prisoners and reflects a more conservative, law enforcement–oriented approach. Garland advises prosecutors to avoid charging defendants with a volume of drugs that would trigger a mandatory minimum sentence — unless they were arrested in possession of a weapon or are suspected to be members of a “violent gang,” for example.

Even with sentencing enhancements for crack cocaine off the table, the memo still gives prosecutors wide latitude to reach for mandatory minimums in cases where police seize firearms or larger amounts of drugs. Collins said crack cocaine remains a dominant drug in the U.S., including in Black communities, and drug users should benefit from greater access to health care and harm reduction services, which the Biden administration has worked to expand despite howling protests from Republicans. (However, after conservatives wrongly accused Biden of handing out “free crack pipes,” the administration said it would not fund safe smoking supplies that prevent injuries and the spread of disease.)

While Collins said Garland’s memo is a welcome change in that regard, it’s unclear whether the Justice Department will follow up and enforce the guidance.

“Prosecutorial guidance is just what it is: guidance,” Collins said.

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