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AG Garland takes a big step on addressing sentencing disparities

As Senate Republicans delay consideration of a bill to overhaul racist sentencing disparities in drug cases, Merrick Garland acted on his own.

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The Democratic-led House took a surprisingly bipartisan step last year, approving a bill called the Eliminating a Quantifiably Unjust Application of the Law — better known as the EQUAL Act. The goal was simple: end the sentencing disparities between crack cocaine and powder.

To the delight of reformers, the House passed the bill easily, with 143 Republicans joining a unanimous Democratic conference in the majority. The satisfaction, however, did not last: As is often the case, the EQUAL Act, despite its merits and apparent bipartisan support, has stalled in the Senate, where it needs at least 60 votes to advance.

But as proponents of the legislation scramble in the waning days of the lame-duck session, the Justice Department altered the debate unexpectedly late last week. The Washington Post reported:

Attorney General Merrick Garland on Friday instructed federal prosecutors to end charging and sentencing disparities in cases involving the distribution of crack and powder cocaine, after decades of law enforcement policy disproportionately treating crack offenders more punitively. Garland’s move effectively seeks to eliminate the significant difference in the amount of powder cocaine relative to crack cocaine that is required to be in a suspect’s possession to trigger mandatory minimum federal sentences upon conviction.

If you’re new to this story, let’s revisit our earlier coverage and review how we arrived at this point.

In the Reagan era, as part of the so-called “war on drugs,” sentencing disparities in drug crimes reached levels that were difficult to believe. The Associated Press reported several years ago, “[A] person selling five grams of crack faces the same five-year mandatory minimum sentence as someone selling 500 grams of powder cocaine.”

The racism at the heart of the policy was unsubtle, since most crack convictions involved Black defendants.

In 2010, at then-President Barack Obama’s urging, congressional Democrats successfully reduced the disparity, though a Senate compromise prevented them from eliminating it altogether. This was an important step — it was the first time in four decades that Congress had repealed a mandatory minimum — but it was incomplete.

President Joe Biden and congressional Democrats have been eager to finish the job, though they’ve faced predictable opposition from some — not all, but some — key congressional Republicans.

Garland, however, had the option of acting outside of the fight on Capitol Hill, directing U.S. attorneys’ offices to end the disparities in federal drug cases.

Maya Wiley, president and chief executive of the Leadership Conference on Civil and Human Rights, told the Post, “This is an example of the Department of Justice doing exactly what it has the power to do without an active Congress — to say: ‘We as prosecutors are going to be fair and just and not treat Brown and Black people as if they are somehow worse than White people.’”

Republican Sen. Chuck Grassley of Iowa complained that the attorney general’s move risked undermining legislative talks. Perhaps. But as my MSNBC colleague Jordan Levin explained last week, those talks haven’t gone especially well, and the Senate “might not even pass a watered-down version” of the EQUAL Act.

It’s tough to blame Garland and the Justice Department for wanting to do the right thing while GOP senators drag their heels.

To be sure, the attorney general’s move is an important step, but it doesn’t negate the need for a legislative solution: The next time there’s a Republican president, Garland’s directive would likely be undone. A permanent, statutory solution is still needed, despite the news from the Justice Department.

There’s still time for the Senate to do the right thing, but if there’s no breakthrough before the end of the lame-duck session, the chances of progress under a GOP-led House are effectively zero.