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Regular readers likely recall some of my posts over the last two years about the EQUAL Act, a bill to reform federal crack cocaine sentencing by finally treating crack and powder cocaine the same at sentencing. In short form, passage of the bill looked somewhat likely when the US House of Representatives passed it overwhelmingly in September 2021; but, as detailed in posts here and here from the first half of 2022, opposition from some key Republican Senators prevented the bill from getting to the desk of President Biden. And, as detailed in this post, a lame-duck session compromise bill to the finish line.
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Notably, but not surprisingly, this letter to Congress makes no mention of the fact that, as discussed here, US Attorney General Garland released last month new federal charging guidelines that including instructions to federal prosecutors to treat crack like powder cocaine at sentencing. Though these new charging guidelines do not have the legal force of statutory reform, they might readily lead members of Congress to see less urgency in advancing reform or even to be more resistance to reform as we saw late last year. Fingers crossed that EQUAL can gather momentum again and actually finally eliminate the pernicious and unjustified crack/powder disparity once and for all.
Remarkably, it has already been almost a month since Attorney General Merrick Garland issued new charging and sentencing policy guidance for Justice Department prosecutors through two memoranda (basics here). These memos received some press attention (and some blog commentary) when first issued in mid December. But, somewhat surprisingly, I have not since seen all that much continued commentary or further echoes concerning AG Garland's instructions to federal prosecutors to "promote the equivalent treatment of crack and powder cocaine offenses" and other notable aspects of these notable memos.
These latest DOJ policies are generally consistent in many respects with past policies issued by Attorney General Garland's predecessors, but they break new ground (or revive previously-rescinded policies) in several areas: mandatory minimum statutes, statutory sentencing enhancements, the crack/cocaine sentencing disparity, and pre-trial diversion. All of these new policies tack in the same direction: ameliorating the harshness of the modern-era federal sentencing regime.
On the executive front, I will be watching closely for early impacts of Attorney General Garland's new charging and sentencing memos (basics here). It will be particular interesting to see the effect of AG Garland's instructions to federal prosecutors to "promote the equivalent treatment of crack and powder cocaine offenses." And, with Prez Biden having used his clemency powers a few times in 2022 (with grants in April, October and December), maybe executive grace as well as prosecutorial discretion will continue to impact federal sentencing realities in the coming year.
As its name suggested, the First Step Act was just the first step, and there are many more steps that be taken to make our federal justice system fairer and more effective. Even while there is so much we are divided on as a country, when it comes to reforming our broken criminal justice system, there are plenty of promising paths forward. One of those next steps is ending one of the most unjust laws we have on the books: the cocaine and crack sentencing disparity....
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