U.S. Justice Department moves to eliminate cocaine sentencing disparity

By Gram Slattery

WASHINGTON (Reuters) -U.S. Attorney General Merrick Garland instructed federal prosecutors on Friday to end disparities in the way they charge offenses involving crack cocaine and powder cocaine.

The change, outlined in a pair of internal memos released by the Justice Department on Friday, is a win for criminal justice reform advocates, who point out that the current sentencing regime has led to the disproportionate incarceration of Black Americans since the policy was adopted nearly 40 years ago.

Some lawmakers and congressional aides warned, however, that the memo could complicate ongoing legislative efforts to address the issue.

Mandatory minimum sentences for crack-related offenses are currently 18 times lengthier than those for powder cocaine. The Justice Department has supported eliminating that disparity and a bipartisan group of lawmakers is working on legislation that would significantly reduce it.

In the memos, Garland instructs prosecutors to treat "crack cocaine defendants no differently than for defendants in powder cocaine cases" when they are charging defendants and making sentencing recommendations.

They also instruct prosecutors to reserve charges involving mandatory minimums to situations in which there are certain aggravating factors, such as leadership of an organized crime group.

Advocates welcomed the move, but added that codifying the change into law was key.

"Today's announcement recognizes this injustice and takes steps to finally strike parity between powder and crack cocaine sentences when there is no pharmacological differences in the substances," Democratic Senator Cory Booker, a sponsor of legislation regarding cocaine sentencing, said in a statement.

Some lawmakers expressed concern the announcement could trip up a deal to tuck a measure narrowing sentencing disparities between crack and powder cocaine into a year-end spending bill.

"A bipartisan group of lawmakers, including myself, just recently came to an agreement on statutory changes that could possibly be included in the year-end funding bill," Grassley said in a statement. "That hard-won compromise has been jeopardized because the attorney general inappropriately took lawmaking into his own hands."

In 1986, Congress passed a law to establish mandatory minimum sentences for drug trafficking offenses, which treated crack and powder cocaine offenses using a 100-to-1 ratio. Under that formula, a person convicted for selling 5 grams of crack cocaine was treated the same as someone who sold 500 grams of powder cocaine. That proportion was narrowed to 18 to 1 in 2010.

The guidance from Garland goes into effect in 30 days. It does not apply retroactively.

(Reporting by Gram Slattery; Editing by Scott Malone and Aurora Ellis)