Justice Dept. Revises Rules for Drug Cases to Address Racial Disparities

WASHINGTON — Attorney General Merrick B. Garland told federal prosecutors on Friday to pursue the same charges and to seek equivalent sentences for powder as crack cocaine offenses, part of an effort to address glaring racial disparities in the criminal justice system.

Under current federal law, people convicted of possessing 28 grams of crack cocaine face a mandatory five-year prison sentence — the same sentence imposed on those convicted of having nearly 20 times that amount in powder cocaine.

A report by the U.S. Sentencing Commission in 2021 showed that 78 percent of people convicted of crack trafficking were Black. By comparison, 25 percent of those convicted of trafficking powder cocaine were Black, according to the commission.

“The crack/powder disparity in sentencing has no basis in science, furthers no law enforcement purposes and drives unwarranted racial disparities in our criminal justice system,” the Justice Department said in a statement, reflecting testimony Mr. Garland has given before Congress.

The move reflects an informal policy the department has pursued during the Biden administration. It comes as President Biden’s efforts to pass legislation erasing the disparity have been blocked by congressional Republicans.

The new rules were a long time in coming. In early 2021, soon after Mr. Garland took over, prosecutors were told to expect a memo that would allow them to forgo harsh mandatory minimum sentences, including those for nonviolent drug dealers who had sold crack rather than cocaine.

Mr. Garland said the new charging instructions reflected his larger commitment to addressing documented racial disparities in the application of federal mandatory minimum sentences, many of them passed during the crime wave of the 1980s and 1990s.

The new guidance also covers sentences sought in plea agreements, the most common mode of sentencing in the criminal justice system.

Mr. Garland, a former federal prosecutor, brushed aside the original justification for the harsh crack sentences, which Mr. Biden embraced as a senator: that crack should be treated differently because it is a more addictive drug in smaller amounts.

Individual prosecutors will still be able to exercise discretion on a case-by-case basis. Mr. Garland emphasized that prosecutors also account for other factors, including the defendant’s criminal history, if they are charged with violent crimes, and whether they acted in a “supervisory” capacity in a drug-trafficking operation.

Prosecutors typically seek the most severe possible penalty when issuing charges in drug cases, in part to give the government greater leverage in plea negotiations. But Mr. Garland’s new guidance flips that calculus, requiring that prosecutors seek approval from a supervising lawyer before asking for the mandatory minimum in cases involving crack cocaine.

The memo singled out charges against anyone who is used by powerful dealers as a conduit as well as lower-level dealers, even those caught with “a large quantity of drugs” that would have incurred the mandatory minimum sentence in the past.

“In such cases, prosecutors should consider supporting a downward departure or variance,” Mr. Garland wrote.