By: Maria M. Alfaro
For decades, possessing different forms of cocaine carried different kinds of sentencing. These sentencing differences were directly correlated with existing biases and inequalities in the U.S. prison and criminal justice system. Now, after 36 years, on December 16, 2022, U.S. Attorney General Merrick Garland announced new charging guidelines for crack cocaine possession, potentially signaling the beginning of the end of codified disparities between crack and powder cocaine among other inequalities in U.S. public policy.[1]
According to Garland’s memorandum (the “Memo”), federal prosecutors should avoid charging individuals possessing quantities of crack cocaine that trigger Title 21 mandatory minimum sentences (5-year-minimum sentence) if the defendant did not: (1) use weapons or violence, (2) have significant participation in organized crime, gang or cartels, or (3) have a “significant managerial role in the trafficking of significant quantities of drugs.”[2] Any decision to impose the minimum sentence, must be authorized by a supervising attorney.[3] Additionally, when the above criteria is only partially met, the Memo urges federal prosecutors not to “automatically charge the quantity necessary to trigger the mandatory minimum.”[4] Instead, prosecutors should consider all the circumstances of the defendant and weigh all of the Memo’s considerations to carefully determine whether to apply the minimum sentences.[5] In other words, federal prosecutors have the discretion not to charge defendants with mandatory minimum sentences where the crime does not fit the punishment.[6] And when such minimum sentences are imposed, supervising attorneys now serve as the checks and balances in place to verify prosecutors’ drug charging determinations.
Furthermore, when Title 21 mandatory minimum sentences are triggered in crack cocaine cases, federal prosecutors must “charge the pertinent statutory quantities that apply to powder cocaine offenses” and ask for sentences consistent with powder cocaine instead of crack cocaine sentences.[7] This means that possession of 28 grams of crack cocaine will no longer have the same sentence as possession of 500 grams of powder cocaine, rather crack and powder cocaine quantities will be charged in the same manner as they are chemically the same substance.[8]
Garland’s Memo comes in the context of the stalled EQUAL (Eliminating a Quantifiably Unjust Application of the Law) Act of 2021, which purports to eliminate the federal sentencing discrepancy between crack and powder cocaine drug offenses which treat crack cocaine offenders significantly more harshly than powder cocaine perpetrators despite no chemical difference or effects between the substances.[9] The Act would apply to future and pending cases; and defendants in past cases would be authorized to go to a sentencing court to receive a reduced sentence.[10] The EQUAL Act was passed in the House with bipartisan support in 2021, but it continues to be delayed in the Senate. Even though many advocates and political leaders commend Garland’s move, this change could only be temporary unless Congress acts.[11]
This announcement seems to reconcile lessons learned from two separate drug crises in the U.S. that disproportionately affected two different communities respectively; the crack epidemic of the 80s and 90s, and the ongoing opioid epidemic. The differences in the public policy response to each epidemic has unearthed ample evidence of bias, which has been codified into criminal law and other U.S. institutions.
Back in 1971, Nixon’s “war on drugs” initiated a wave of criminalization of Black people by presuming guilt and inherent dangerousness.[12] This rampage in criminalization was fostered and justified by stories of “crack babies,”[13] causing instant addiction[14] compared to powder cocaine, and dangerously violent “crackheads”[15] regularly portrayed as menacing Black people that needed to be incarcerated.[16] As a result, Congress enacted the bipartisan Anti-Drug Abuse Act of 1986. This Act not only criminalized crack cocaine with a 100-to-1 drug quantity ratio compared to powder cocaine, but it also allocated almost $1.28 billion–out of $1.7 billion–in federal spending to fund incarcerations and police action.[17] Later in 1988, lawmakers passed the Omnibus Anti-Drug Abuse Act, which approved millions of additional dollars to law enforcement and prisons, and authorized harsher criminalization of crack users by punishing the possession of 5 grams of crack cocaine with a 5-year-minimum sentence while punishing possession of the same amount of powder cocaine with only a 1-year-maximum sentence.[18]
Decades later, the consequences of these laws became more evident and many of those who participated in drafting or approving such bills acknowledged the destructive racial repercussions in communities, particularly Black communities.[19] Studies have shown that from 1991 to 2001, Black people were nine times more likely to be sent to prison for crack offenses than white people.[20] In 2003, only 7.8% of Caucasians were sentenced under the severe federal crack laws, while more than 80% of African Americans were sentenced “despite the fact that more than 66% of crack users are White or Hispanic.”[21] Data from 2006 studies show that Black people comprise about 15% of drug users, but embodied 37% of drug arrests, 59% of drug convictions, and 74% of drug related prison sentences.[22] Throughout the years, the general incarceration trends for African Americans have only worsened as law enforcement focuses on crack offenses by Black people, “transforming federal prisons into institutions increasingly dedicated to the African American community.”[23]
In stark contrast to the crack crisis, which was handled with severe and unequal federal criminal laws, is the opioid epidemic, which was declared a national public health emergency.[24] However, racial disparities remained constant.[25] One element became apparent, as White people started becoming more addicted to opioids and began dying from overdoses, the narrative transformed.[26] The Center for Disease Control (CDC) identified three waves in the rise of opioid use and rapidly declared it a nationwide healthcare emergency.[27] Policy was also formulated differently focusing away from sentencing and toward treatment.[28] In 2018, Congress assigned $5.55 billion–out of $7.4 billion–to combat the opioid epidemic, but through treatment, research, and prevention, rather than through law enforcement, as in the crack crisis.[29] However, minorities continued to have limited access to care and treatment.[30] The media also played a vital role.[31] News stories continued portraying Black and Brown people as addicts highlighting their criminal history or court proceedings, without humanizing them.[32] Yet, stories concerning middle-class or White people generally described them as victims or provided a reason for their drug abuse, “often attributed to external factors.”[33] Regarding access to treatment, studies found that there are 38% more opioid overdose deaths from Black people than White people; and African American and Hispanic/Latino communities do not have the same access to medications treating opioid use disorder as White communities.[34] Additionally, the opioid epidemic brought an avalanche of legal action–from states, governmental bodies, and private parties–against corporate entities, such as big pharma companies, and individuals, like the Sackler family.[35] However, to date, individuals or representatives from these companies–who played a significant role in producing and distributing the substances that underpin the opioid crisis as well as misrepresenting the substance’s addictive properties–have not served any prison time.[36] Even amidst the opioid epidemic in 2016, African Americans continued to be twice as likely to be arrested than Caucasians for cocaine.[37] Although illegal and prescription opioids are more lethal than cocaine, “there were nearly four times more arrests for cocaine than opioid drugs in 2016.”[38]
The so-called crack crisis and the opioid epidemic have revealed racial biases that were captured into law, reflected in public policy, and ingrained into the healthcare system. For over a quarter-century, advocates have fought for equality and to eliminate these disparities. The pending EQUAL Act and U.S. Attorney General Garland’s Memo mark the latest developments in efforts to dismantle a racial bias, unconsciously or consciously, codified into law and public policy. And perhaps these changes to the justice system can signify the beginning of a process of amendment of other wrongs and biases embedded into other American structures.
[1] Hannah Rabinowitz, Attorney General Garland Instructs Prosecutors to End Sentencing Disparities Between Crack and Powder Cocaine, CNN (Dec. 16, 2022, 4:30 PM), https://www.cnn.com/2022/12/16/politics/crack-powder-cocaine-sentencing-disparities/index.html.
[2] Memorandum from the Att’y Gen. on Additional Dep’t Policies Regarding Charging, Pleas, and Sent’g in Drug Cases to all Fed. Prosecutors 2 (Dec. 16, 2022) (on file with the Department of Justice) [hereinafter Memorandum from the Att’y Gen.]; Arwa Mahdawi, US Attorney General Moves to End Crack Cocaine Sentencing Disparities, The Guardian (Dec. 17, 2022, 9:45 AM), https://www.theguardian.com/us-news/2022/dec/17/merrick-garland-sentencing-disparities-crack-cocaine.
[3] Memorandum from the Att’y Gen., supra note 2.
[4] Id.
[5] Id.
[6] See id.
[7] Id. at 5.
[8] Id.; Rabinowitz, supra note 1.
[9] H.R. 1693, 117th Cong. (2021).
[10] Id.
[11] Mahdawi, supra note 2.
[12] Racial Double Standard in Drug Laws Persists Today, Equal Just. Initiative (Dec. 9, 2019), https://eji.org/news/racial-double-standard-in-drug-laws-persists-today/.
[13] Deborah J. Vagins & Jesselyn McCurdy, Cracks in the System: Twenty Years of the Unjust Federal Crack Cocaine Law 5 (ACLU, 2006), https://www.aclu.org/other/cracks-system-20-years-unjust-federal-crack-cocaine-law (“In 2002, Dr. Ira J. Chasnoff, President of the Children’s Research Triangle, testified before the Sentencing Commission that since the composition and effects of crack and powder cocaine are the same on the mother, the changes in the fetal brain are the same whether the mother used crack cocaine or powder cocaine. . . . [Additionally,] Dr. Deborah Frank, Professor of Pediatrics at Boston University School of Medicine, in her 10-year study . . . [found that] children exposed to powder and crack cocaine in the womb . . . [have identical] biologic thumbprints.”).
[14] “In 1996, JAMA published a study that found that the physiological and psychoactive effects of cocaine are similar regardless of whether it is in the form of powder or crack. The study concluded that the propensity for dependence varied by the method of use, the amount used, and frequency, not by the form of the drug. The study also indicated that people who are incarcerated for the sale or possession of cocaine, whether powder or crack, are better served by drug treatment than imprisonment.” Id.
[15] “In 1988, a study of homicides in New York City found that in all of the 414 homicide cases that year, there were only 3 homicides associated with behavior caused by using crack and in 2 of those cases the crack user was the victim. The study also found that 85% of all crack-related deaths resulted from the nature of the illegal drug market and not from the actual use of the drug. This violence occurred between dealers or between dealers and users in an illegal drug market that is inherently violent, regardless of what drug is being bought or sold. [Furthermore,] in 2000, . . . [statistics showed that] only 2.3% of crack offenders actively used weapon.” Id.
[16] Equal Just. Initiative, supra note 12.
[17] Id.
[18] Id.; Taylor N. Santoro & Jonathan D. Santoro, Racial Bias in the US Opioid Epidemic: A Review of the History of Systemic Bias and Implications for Care (Cureus, 2018), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6384031/ (emphasis added).
[19] Equal Just. Initiative, supra note 12 (Eric E. Sterling, then legal counsel to the House of Representative’s Subcommittee on Crime and who helped write the Anti-Drug Abuse Act in 1986 said, “The racial implications of the 1986 law were devastating.”).
[20] Id.
[21] Vagins & McCurdy, supra note 13, at i, 3 (Before the enactment of the Anti-Drug Abuse Act of 1986, studies conducted by the ACLU showed that “the average federal drug sentence for African Americans was 11% higher than for whites; in 1990, “four years later, the average sentence for African Americans was 49% higher.”).
[22] Vagins & McCurdy, supra note 13, at i.
[23] Vagins & McCurdy, supra note 13, at 3.
[24] Santoro, supra note 18.
[25] See id.
[26] Equal Just. Initiative, supra note 12.
[27] Opioid Data Analysis and Resources, Centers for Disease Control and Prevention, https://www.cdc.gov/opioids/data/analysis-resources.html (last visited Jan. 3, 2023, 10:30 AM) (The first wave began in the late 1990s with deaths caused by overdose of prescription opioids, the second wave started in 2010 with increasing deaths caused by heroin overdose, and the third wave began in 2013 with overdose deaths connect to synthetic opioids such as fentanyl, which can also be found mixed with counterfeit pills, heroin, and cocaine.).
[28] See Equal Just. Initiative, supra note 12.
[29] Equal Just. Initiative, supra note 12.
[30] Santoro, supra note 18.
[31] See Equal Just. Initiative, supra note 12.
[32] Id.
[33] Santoro, supra note 18.
[34] Disparities in Opioid Overdose Deaths Continue to Worsen for Black People, Study Suggests, Nat’l Inst. on Drug Abuse (Sept. 9, 2021), https://nida.nih.gov/news-events/news-releases/2021/09/disparities-in-opioid-overdose-deaths-continue-to-worsen-for-black-people-study-suggests (“[R]esearchers observed a 38% overall increase in the opioid overdose death rate for non-Hispanic Black individuals from 2018 to 2019, across these four states. . . . The study authors note that these data add to the evidence of increasing disparities in opioid overdose deaths by race and ethnicity.”); William C. Goedel et al., Association of Racial/Ethnic Segregation with Treatment Capacity for Opioid Use Disorder in Counties in the United States (JAMA Network), https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2764663 (“In this cross-sectional study of all 3142 counties or county-equivalent units in the US in 2016, counties with highly segregated African American and Hispanic/Latino communities had more facilities to provide methadone per capita, while counties with highly segregated white communities had more facilities to provide buprenorphine per capita. . . . These findings suggest that the racial/ethnic composition of a community was associated with which medications residents would likely be able to access when seeking treatment for opioid use disorder.”).
[35] Opioid lawsuits Generate Payouts, Controversy, Am. Bar Ass’n, https://www.americanbar.org/news/abanews/aba-news-archives/2019/09/opioid-lawsuits-generate-payouts-controversy/ (last visited Jan. 3, 2023, 5:03 PM) (The Sackler family are the principal owners of Purdue Pharma, which created and marketed the highly addictive opioid OxyContin).
[36] See Jan Hoffman & Katie Benner, Purdue Pharma Pleads Guilty to Criminal Charges for Opioid Sales, The New York Times, https://www.nytimes.com/2020/10/21/health/purdue-opioids-criminal-charges.html (Sept. 1, 2021) (“[Purdue] pleaded guilty to marketing opioids to more than 100 doctors that it suspected of writing illegal prescriptions and lying about this to the federal Drug Enforcement Administration. . . . The Purdue settlement also . . . relate[s] to allegations that the company violated the False Claims Act by using aggressive marketing tactics to convince doctors to unnecessarily prescribe opioids—frivolous prescriptions that experts say helped fuel a drug addiction crisis that has ravaged America for decades. . . . OxyContin, which came on the market in the mid-90s, is seen as an early, ferocious driver of the opioid epidemic and Purdue is regarded as the architect of muscular, misleading drug marketing.”) (“Massachusetts attorney general [said,] ‘Justice in this case requires exposing the truth and holding the perpetrators accountable, not rushing a settlement.’”); Ed Bisch, My Son Died of an Oxy Overdose. Drug Company Execs Who are Responsible Should be Sent to Jail, STAT (July 13, 2022), https://www.statnews.com/2022/07/13/opioid-pushing-executives-should-get-jail-time-not-fines/ (“‘I see fines with some frequency and think that they are expensive licenses for criminal misconduct,’ said the late Sen. Arlen Specter . . . , shortly after Purdue Pharma pled guilty in federal court to fraudulent marketing practices. ‘I do not know whether that applies in this case, but a jail sentence is a deterrent, and a fine is not.’”) (“With frightening regularity, new opioid settlements are struck. The one thing they share is that the corporations involved pay back only a fraction of the profits they made off the ever-worsening overdose crisis. . . . Until white-collar criminals go to jail, these behaviors will continue.”).
[37] Equal Just. Initiative, supra note 12 (“Black people in 21 states were arrested at a rate at least three times higher than white people for narcotics and cocaine offenses combined in 2016.”).
[38] Id. (“[In 2016, f]ar more Black people (85,640) were arrested for cocaine than white people were arrested for heroin and other opioids (66,120).”).
