Melissa Harris-Perry: Welcome to The Takeaway. I'm Melissa Harris-Perry.

Last week, Attorney General Merrick Garland issued a memo to all federal prosecutors advising them not to seek disparate sentences for crack and powder cocaine offenses. It's a memo that applies to all cases brought under Title 21 of the US Code. Now, the 1986 Anti-Drug Abuse Act created these sentencing disparities, and for 24 years after the 1986 bill was passed, someone caught with five grams of crack cocaine would be incarcerated in a federal prison for just as long as someone caught with 500 grams of powder cocaine.

It was a 100 to 1 ratio for mandatory minimum sentencing. This made sentences more harsh for using a different form of the same drug. In 2010, Congress passed the Fair Sentencing Act, and it reduced the disparity between crack cocaine and powder down to 18 to 1, but the deal is there's no actual chemical difference between crack and powder cocaine. They produce very similar results in consumption. The real difference between these two forms is who accesses them. Crack tends to be cheaper and easier to get than powder.

The 2016 National Drug Survey on drug use and health shows that similar rates of Black and white Americans use crack in their lifetime, but Black Americans are incarcerated at much higher rates for crack-related offenses. According to the US Sentencing Commission, more than three quarters of those convicted by 2020 for crack trafficking were Black. White offenders for the same crime made up just over 6% of convictions. I sat down with Rashad Robinson, president of Color of Change, to talk about what this new guidance from the attorney general means for the long fight to end sentencing disparity.

Rashad Robinson: Well, what this means is that the attorney general is using the power that he has, and his power really exists with prosecutions at the federal level, so not what's happening in the states, but what happens federally. Where prosecutors are making charges, 30 days from his memorandum moving forward, they will treat crack and powder cocaine the same. We were seeing differences of sentences up to 18 times longer or even more, and so that's what it shifts. It's not retroactive. It doesn't impact what happens in terms of state prosecution, but at the federal level, it does make some changes.

According to the folks at the Justice Department that I talked to, upwards of 8% of drug-related cases are crack cocaine, and so it will have an impact moving forward. The other thing, Melissa, that I think it's important is this is a recognition of the power of elections, the power of putting people in office who are open to listening to communities, responding to communities, because this is a directive related to prosecutor discretion. Now, if there's an administration change, a new administration could come in and reverse what Merrick Garland has done here, which is why it's so important that this gets codified into law.

Melissa Harris-Perry: It is maybe surprising in certain ways that this is happening under President Biden, who had quite a different history with this question as senator. He actually co-sponsored that 1986 Anti-Drug Abuse Act, which is part of laying the groundwork for this massive disparity in sentencing.

Rashad Robinson: There's been a number of things that we're seeing from this administration that I think is a result of both pressure and the type of culture change that we've been able to make possible. Now, I think it's important that the true sign of President Biden will happen when he signs legislation that moves this forward. These directives from the attorney general do sit outside. Of course, Biden appointed him and perhaps maybe Biden gave his blessing to this, but the real change will happen when legislation that codifies this into law and gives us the ability to not just have this related to prosecutor discretion, but related to the actual law on the books.

Melissa Harris-Perry: All right, y'all. We have to take a break. More of this conversation in just a moment. Rashad Robinson is the president of Color of Change. This is not just symbolic. This is a real policy move. Just how important is this particular move by the attorney general in terms of moving us towards a somewhat more just system?

Rashad Robinson: It's incredibly important. The attorney general stepping out and making this decision, knowing that there would be attacks, knowing that the right-wing would try to use this against those who make those changes, against prosecutors around the country locally. It's also, I think, powerful just from a narrative perspective. I think it sends a really powerful message to the states where this is still being debated. It also sends a message to Congress, which is currently right now debating something called the Equal Act that will actually close some of the gaps both retroactively and moving forward. Now, that is being debated, and what's currently on the table does not go as far as what the attorney general is demanding from prosecutors moving forward.

Melissa Harris-Perry: Robinson here is referring to the Equal Act. It would require that all future federal sentencing for crack and powder cocaine be the same for the same amounts. The bill's co-sponsor, Senator Cory Booker of New Jersey, believes he has secured the 11 Republican votes necessary to filibuster-proof the measure and to move it through these final days of the 117th Congress before the end of the year, as part of the omnibus funding package.

Rashad Robinson: This is happening all at that same time. For us, we will be doing the accountability work of watching what federal prosecutors in the regions around the country actually do as a result of this directive. We will be calling out where it doesn't happen, and raising up where it does happen. I think what the attorney general does is he's given us that ability to make sure that the changes that we've won and fought for actually get implemented, and that communities now have something else to build on.

Around the country I know that advocates like ours at Color of Change and others are going to be now fighting in the states to make this a reality in states around the country, and what's happened federally also gives us more narrative power around that as well. It's incredibly important. It's another step of righting wrongs, and we're going to keep working to build on it, to make sure that our justice system actually is a system that is just.

Melissa Harris-Perry: Rashad Robinson is the president of Color of Change. Rashad, as always, thanks so much for joining us.

Rashad Robinson: Thanks for having me.

[00:07:41] [END OF AUDIO]

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