« New crack sentence reductions (but not equalization or retroactivity) reportedly in Congress's year-end lawmaking | Main | Highlighting still more notable new Inquest essays »

December 16, 2022

US Attorney General Garland releases new federal charging guidelines that include instructions to treat crack like powder cocaine

I thought the increasing prospects for statutory sentencing reforms from Congress might be the big federal sentencing news of this week, but this new Washington Post piece suggests that even bigger news is coming from the Department of Justice.   Here are the (incomplete) details from the first press piece:

Attorney General Merrick Garland on Friday instructed federal prosecutors to end sentencing disparities in cases involving the distribution of crack and powder cocaine after decades of law enforcement policy disproportionately treating crack offenders more punitively.  Garland’s move effectively seeks to eliminate the significant difference in the amount of powder cocaine relative to crack cocaine that is required to be in a suspect’s possession to trigger mandatory minimum federal sentences if convicted.

Critics of the longtime policy have said it is a relic of the Washington’s misguided war-on-drugs era that targeted Black and Brown communities, resulted in overpopulated prisons and strained federal and local resources at the expense of more effective strategies. Proponents of treating crack dealers more punitively have said that form of the drug is faster acting and capable of producing more intense highs. Under current federal policy, possession of 28 grams of crack cocaine would trigger a mandatory minimum prison sentence of five years, compared to 500 grams of powder cocaine.

Garland’s memo to the nation’s U.S. attorneys directs prosecutors to charge “pertinent statutory quantities that apply to powder cocaine” when pursuing crack cases and to “advocate for a sentence consistent with powder cocaine rather than crack cocaine.” The move, long sought by civil rights advocates, comes as the Equal Act, a legislative bill that would eliminate the disparity, has been stalled in the Senate amid objections from some Republicans after passing the House last year with bipartisan support.

Joe Biden, then a U.S. senator from Delaware, crafted the 1986 crime bill that initially set a 100-to-1 ratio between powder and crack cocaine to trigger mandatory minimum sentences. The Fair Sentencing Act 0f 2010 reduced the ratio to 18-to-1. The Biden administration endorsed the Equal Act last year....

Garland’s memo cited Justice Department testimony last year to the Senate Judiciary Committee that such a 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.”

During his confirmation hearing in February 2021, Garland told Sen. Cory Booker (D-N.J.), a co-sponsor of the Equal Act, that the inequitable sentencing in crack and powder cocaine cases had a “disparate impact on communities of color.” “There’s no justification for this, and we should end this,” Garland said at the time. He also said that powder cocaine “is as dangerous with respect to crime rates as crack cocaine, both of which have now been unfortunately overtaken by fentanyl and the opioids. But both of those are bad problems [and] equalizing penalties for crack and powder should have no difference with respect to our ability to fight violent crime.”

Garland aides said the new guidelines, which will take effect within 30 days, are part of a broader set of changes the attorney general is making to the Justice Department’s charging policies.  The department under Garland continues to support the passage of the Equal Act, aides said; unlike a legislative change to federal policy, they noted, Garland’s memo would not retroactively apply to previous convictions.

Jim Pasco, executive director of the National Fraternal Order of Police, said in an interview that he supported Garland’s directive. Though the group has opposed eliminating the sentencing disparity in the past, and it did not take a position on the Equal Act, Pasco said the police union’s views have evolved “as there’s been more clarity around the science.” Pasco said the Biden administration has supported police with additional resources to fight a rise in violent crime, and the union does not believe the policy changes on cocaine sentencing will adversely affect the efforts of law enforcement.

Garland’s action could face blowback from Republicans who have championed a bill that would reduce the sentencing disparity but not eliminate it entirely. In April, Sens. Charles E. Grassley (Iowa), Mike Lee (Utah), Roger Wicker (Miss.) and Lindsey O. Graham (S.C.) proposed legislation that would reduce the ratio of powder-to-crack cocaine that would trigger mandatory minimum sentences to 2.5-to-1. Unlike the Equal Act, however, that bill would achieve greater parity in part by increasing penalties for powder cocaine users.

Aggravatingly, as of 2pm EST, the new AG Garland crack charging memo is not available on the Justice Department's website.  I am very eager to see thsi memo, as well as whatever else appears in the "broader set of changes the attorney general is making to the Justice Department’s charging policies" before commenting at length.  But I will start by noting that federal law does provide at least one possible means for Garland’s memo to retroactively apply to some previous crack convictions: AG Garland could have prosecutors bring, and vocally and consistently support, motions for sentence reductions under 3582(c)(1)(A) for crack offenders who are still serving unduly long and unfair crack sentences based in the unjust disparity.

UPDATE:  A helpful reader made sure to get me copies of these new charging memos from AG Garland.  Here they are (with commentary to follow in coming days):

Download Attorney General Memorandum - General Department Policies Regarding Charging Pleas and Sentencing

Download Attorney General Memorandum - Additional Department Policies Regarding Charges Pleas and Sentencing in Drug Cases

December 16, 2022 at 01:57 PM | Permalink


So the real question for now is, how will courts view this change for the thousands of already convicted crack offenders?

Can people argue its an "extraordinary and compelling reason" to reduce a sentence? Certainly not in the 11th Circuit. Probably not in the 6th.

Which, once again, leaves it in the hands of the Sentencing Commission to act quickly on 3582(c)(1)(A) reform.

Posted by: Zachary Newland | Dec 17, 2022 4:07:55 PM

Zach's observation is quite correct. I would add, however, that even where the DOJ's changed policy could not rise to an extraordinary and compelling reason for a § 3582(c)(1)(A) sentence reduction, the AG's arguments about the essential equivalency of crack to powder and the terms of the charging policy can be cited in arguing that a sentence reduction for other extraordinary and compelling reasons is consistent with the § 3553(a) sentencing factors (especially "just punishment" and a setence reflective of the seriousness of the offense.

Posted by: Tom Root | Dec 18, 2022 6:15:16 AM

Merrick Garland is a lawless twit. Why would anyone take anything he says seriously?

Posted by: federalist | Dec 19, 2022 4:35:33 PM

The comments of the 'federalist' in the last post exemplifies everything wrong with America. I'm sure that this person who refers to the AG as a 'lawless twit' is among those who thinks that the participants in the January 6th insurrection or the Colfax massacre of 1872 were 'great patriots.'

The roots of disparate treatment between crack and powder offenders began far before the SRA of 1984. Kudos to anyone who believes that anything other than a 1:1 ratio is a miscarriage of justice including the AG.

For decades far too many politicians (on both sides) have allowed a false narrative to thrive as it relates to mass incarceration and 'whose' bodies would fill those cells. Political expediency---and the bottomlessly cruel approach that it endorses---has left our country in a state of moral bankruptcy when it comes to reform. I commend the AG for having the courage to do what Congress should have had the temerity to do decades ago. His decision reminds those of us that there is still some beacon of light and remnants of decency that remains in our country.

Posted by: Eric A. Hicks | Dec 20, 2022 6:48:23 AM

Ah yes, once again, a 'rat bootlicker shows up to defend someone like Merrick Garland. Let's examine Merrick's DOJ--Deputy AG rails against a Supreme Court decision and then weaponizes the FACE Act to go after someone defending his son from a deranged person getting in his minor son's face screaming obscenities. (All the while, ignoring actual violence against crisis centers). Then there's the lack of action on Hunter and the investigation of parents complaining at school boards.

Posted by: federalist | Dec 20, 2022 10:56:21 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB