The change, outlined in a pair of internal memos released by the US justice department on Friday, is a major 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.
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Mandatory minimum sentences for crack-related offences 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 minimum sentences to situations in which there are certain aggravating factors, such as the leadership of an organised crime group.
Advocates welcomed the move but added that codifying the change into law was key.
“Today’s announcement recognises this injustice and takes steps to finally strike parity between powder and crack cocaine sentences when there are no pharmacological differences in the substances,” Democratic Senator Cory Booker, a sponsor of the legislation regarding cocaine sentencing, said in a statement.
The move comes as Senate negotiators close in on a deal to tuck a measure narrowing sentencing disparities between crack and powder cocaine into a year-end spending bill.
In 1986, Congress passed a law to establish mandatory minimum sentences for drug trafficking offences, which treated crack and powder cocaine offences using a 100-to-1 ratio. Under that formula, a person convicted for selling 5gm of crack cocaine was treated the same as someone who sold 500gm 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.