In one of the most sweeping clemency actions in U.S. history, hundreds of people convicted of federal nonviolent drug offenses in North Carolina will return home this year. Days before leaving office in January, former president Joe Biden commuted the sentences of 2,490 such individuals nationwide.
The commutations aimed to correct what the administration called “outdated” sentences, particularly those related to crack cocaine — a category where enforcement and sentencing have historically had a disproportionate impact on Black Americans.
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Commutation is one of the executive clemency powers granted to the president in the U.S. Constitution. It stops just short of a full pardon, allowing the president to shorten the length of a person’s sentence without fully forgiving the crime.
Everyone granted a commutation would have received shorter sentences under today’s policies, Biden said in his announcement of the action.
The case for clemency
Nearly 300 of those commutation recipients were convicted in North Carolina, more than any other U.S. state, according to an analysis from Carolina Public Press. Of those 292 commutation recipients, nearly half were convicted of possession with intent to distribute “cocaine base”, more commonly known as crack.
Since the 1980s, offenses involving crack cocaine have been treated more harshly by prosecutors than powder cocaine. This is despite no chemical difference between the two forms of the drug.
Under federal law, possession of 28 grams or more of crack cocaine merits the same five-year minimum sentence as possession of 500 grams of powder cocaine.
People sentenced for crack cocaine are more likely to be Black, while people sentenced for powder cocaine are more likely to be Latino or white, according to a data brief authored by Princeton University students in December.
Elissa Johnson, a former attorney for the Southern Poverty Law Center who currently leads criminal justice campaigns for bipartisan advocacy group FWD.us, told CPP that 88% of clemency recipients were Black, many of whom were sentenced under the crack and powder cocaine sentencing disparity.
“Clemency was an opportunity to address those past injustices with an understanding that it doesn’t make sense to keep people in prison longer, when we know that those sentences would be shorter today,” Johnson said.
Reform efforts stretch decades
The crack-powder cocaine sentencing disparity was first written into law in 1986 by a bipartisan group of lawmakers including Biden, then the junior senator from Delaware.
The original statute was even more strict — a 100:1 difference in sentencing thresholds between crack and powder cocaine.
The Fair Sentencing Act of 2010 reduced that disparity to 18:1, and in 2018 Donald Trump signed the First Step Act, which retroactively reduced sentences for people convicted of crack cocaine-related offenses prior to 2010.
Four years later, then-Attorney General Merrick Garland directed all federal prosecutors to treat crack cocaine the same as powder cocaine during sentencing. That policy has remained untouched since Trump returned to the White House this year.
Lawmakers have introduced bills to codify the change into federal statute a couple times over the past few congressional cycles, but it has yet to be brought to a vote in either chamber.
A group of current and former Democratic lawmakers signed a letter to Biden in November asking him to use his powers of clemency to reduce the sentences of people convicted of nonviolent drug offenses. Two members of Congress from North Carolina, Rep. Alma Adams, D-Charlotte, and Rep. Valerie Foushee, D-Chapel Hill, signed that letter.
Foushee commended Biden’s actions in an email statement.
“Mass incarceration attacks the most vulnerable Americans — and these pardons, including 263 people incarcerated in North Carolina prisons, helps keep families together and prevents intergenerational trauma,” she said.
The anatomy of federal drug cases
The vast majority (78%) of the 292 people offered commutations for crimes prosecuted in North Carolina were charged with distribution, manufacturing or possession of controlled substances with intent to distribute.
Crack was the most common drug cited in those charges, with powder cocaine in a distant second, followed by heroin, fentanyl, marijuana and methamphetamine.
The crack-powder cocaine sentencing disparity reveals itself in the North Carolina data. Commutation recipients convicted of possessing crack cocaine with intent to distribute served 13 years, five months on average — nearly two years more than powder cocaine cases.
Other common charges among the North Carolina commutation recipients were conspiracy to commit drug offenses, use or possession of a firearm in furtherance of a drug trafficking crime, unlawful possession or transfer of firearms and aiding and abetting.
Most drug crimes are prosecuted at the state, not federal level. The commutations involve only federal cases. Federal law enforcement typically becomes involved in instances of drug trafficking across state or national borders.
However, most people convicted of drug trafficking at the federal level did not hold a leadership or supervisory role in the operation. According to the aforementioned Princeton research, only 6% to 7% of all individuals sentenced for crack cocaine trafficking between 2015 and 2022 held a supervisory role in the operation based on data from the United States Sentencing Commission.
What clemency data doesn’t show
Exactly why North Carolina had the most commutations of any other state is difficult to answer.
One possibility is the location of the Butner federal prison complex in Granville County, which houses 5,000 inmates across four facilities of varying security levels. The complex includes the largest medical complex in the federal Bureau of Prisons system, which operates a drug treatment program.
“It’s the largest prison hospital in the federal system with lots of people who are very sick,” Ben Finholt of the Wilson Center at Duke Law explained in an email.
“And many of those people are worthy clemency recipients.”
Of course, such a designation is subjective, and there are no guidelines given to U.S. presidents about who may be offered clemency. People with medical conditions can often make sympathetic candidates for clemency.
Russ Ferguson, the U.S. Attorney for the Western District of North Carolina, told CPP in an email that while his office respected the authority of the president to grant clemency, he did not think the sentences that Biden commuted were “unfair or disproportionate.”
Sixty people sentenced in the Western District received a commutation from Biden, although Ferguson prosecuted none of them. He replaced a Biden appointee who resigned her position soon after Trump took office in January.
“We put a great deal of effort into calculating and arguing for appropriate and fair sentences for every defendant we prosecute,” Ferguson said.
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