Attorney General Makes Changes to Drug Offenses

On December 16, 2022, Attorney General Merrick Garland issued a memorandum instructing all federal prosecutors to make significant changes in prosecution decisions for certain types of drug offenses. This is being done as part of an effort to end sentencing disparities in cases that involve the distribution of crack and powder cocaine. Historically, offenses involving crack cocaine have been treated much more harshly than powder cocaine, which has led to disproportionately severe sentences for some defendants and has also led to racial disparities within the criminal justice system.

Before this change, powder cocaine and crack cocaine were treated differently under the law. Penalties for a relatively small amount of crack cocaine were much higher than a similar amount of powder cocaine. Going forward, prosecutors are instructed to treat any offense involving crack cocaine as if it were powder cocaine, and to make a sentence recommendation consistent with penalties for powder cocaine.

The memo recognized the Justice Department’s support to eliminate the crack-to-powder sentencing disparity, given that crack and powder have no significant pharmacological difference. Crack and powder cocaine are the same drug but in two different forms. In addition to the racial disparities that have been created by the distinction between crack and powder prosecutions, substantially higher sentences for crack cocaine offenses do not achieve any meaningful goal of law enforcement.

This change also impacts the application of mandatory minimum sentences in drug cases. If a defendant does not involve the use of violence or weapons, does not have ties to drug trafficking organizations or gangs, and does not have a significant criminal record relating to violence or drug distribution, then prosecutors should not charge the defendant with an offense that would trigger a mandatory minimum sentence. In instances where some, but not all, of these criteria are met, prosecutors are instructed to exercise their discretion in determining whether a charge with a mandatory minimum sentence is appropriate.

These changes represent a major victory against racial disparities in the criminal justice system and unfair sentences resulting from the different treatment of crack and powder cocaine. If you or a loved one is facing federal drug charges, make sure to contact LGR Law, LLC, for a dedicated advocate to fight for your freedom.

To discuss the federal criminal defense update or criminal law more generally, reach out to New Jersey and New York criminal defense lawyer Lorraine Gauli-Rufo at 973-239-4300 or LGR LAW for a consultation today. For more information about the firm, please visit LGR LAW’s website.

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