Washington, DC (Dec. 16, 2022) – On December 16, U.S. Attorney General Merrick Garland issued a memo instructing federal prosecutors to stop the practice of sentencing crack cocaine and powder cocaine distribution differently, ending the practice of disproportionately punishing crack cocaine offenses, with a disparate impact on Black communities.
"NACDL applauds Attorney General Garland’s memorandum setting forth new charging policies to eliminate the sentencing disparity between crack cocaine and powder cocaine," said NACDL President Nellie King. "As widely recognized, crack cocaine and powder cocaine are the same drug and should be subject to the same penalties. Unfortunately, the new charging policy will not help the thousands of persons serving unjustly long sentences under current sentencing laws. Congress must finally eliminate this longstanding stain on the federal justice system by reducing crack cocaine penalties to the level of powder cocaine and making that change fully and unconditionally retroactive."
In 1986, the passage of the Anti-Drug Abuse Act in Congress established a 100:1 sentencing disparity for offenses related to crack cocaine versus powder cocaine. Under this statute, an individual charged with having 1 gram of crack cocaine would face the same penalties as someone charged with having 100 grams of powder cocaine. In 2010, the Fair Sentencing Act cut that disparity to 18:1 by increasing the quantities of crack cocaine that triggered mandatory minimums in federal drug trafficking cases. The First Step Act, enacted in 2018, made the Fair Sentencing Act retroactive, applying the law to the remaining 3,000 people who were convicted of crack offenses before 2010. Garland’s announcement represents a major change in sentencing practices, one for which advocates have long fought. In issuing this guidance, Garland recognized the lack of scientific evidence differentiating crack and powder cocaine and acknowledged that there is no public safety justification for this disparity.
NACDL has advocated for these changes at every juncture, calling for the passage of the First Step Act and Fair Sentencing Act, and now for the EQUAL Act.
"As we witness the continued disparate impact of the War on Drugs, we know it is long past time to end the racist policing, prosecution, and sentencing that continues to this day," said NACDL Executive Director Lisa Wayne. "The vast majority of those convicted of crack cocaine offenses are Black. This is indefensible. NACDL now calls on Congress to follow of Department of Justice’s lead and pass the EQUAL Act."
