Attorney General Merrick Garland told prosecutors in December to promote the equal treatment of crack and powder cocaine offenses and limit the use of mandatory minimum sentences.
These steps are in line with President Joe Biden's campaign promise to eliminate mandatory minimums, although it doesn't go as far as Biden promised.
In 1970, Congress repealed most drug-related mandatory minimums, focusing instead more on a public health approach to drugs. But then the pendulum swung in the other direction in the 1980s and Congress began passing mandatory minimum sentencing laws including one that Biden co-sponsored as a senator. Supporters say that mandatory minimums provide uniformity in sentences. Opponents say they have contributed to prison overcrowding and take away power from judges.
"Prosecutors' use of mandatory minimums in over half of all federal cases disproportionately impacts poor people of color and has driven the exponential growth in the federal prison population in recent decades," wrote Alison Siegler, a University of Chicago Law School professor.
Garland issued memos Dec. 16 that call for scaling back mandatory minimums, including for drug crimes.
Charges that subject a defendant to a mandatory minimum sentence should be reserved for instances in which the remaining charges would not sufficiently reflect the seriousness of the defendant's criminal conduct, danger to the community or harm to victims, Garland wrote.
But his memo did not call for eliminating mandatory minimum sentences. Garland wrote that some cases will require prosecutors to charge offenses that impose a mandatory minimum sentence "for example, for defendants who have committed or threatened violent crimes, or who have directed others to do so."
In his drug crimes memo, Garland wrote that the Justice Department supports eliminating the crack-to-powder sentencing disparity and supports the EQUAL Act, which would remove that disparity. That House passed the bill in 2021, but the Senate did not vote on it.
As a Delaware senator, Biden co-sponsored the Anti-Drug Abuse Act of 1986 that treated crack cocaine, which was ravaging Black communities, far more harshly than powdered cocaine, which was more common among white drug users. Selling 5 grams of crack triggered the same penalty as 500 grams of cocaine powder. That 100-to-1 ratio was reduced to 18-to-1 when Congress in 2010 passed the Fair Sentencing Act.
After controlling for pre-charge case characteristics, prosecutors were nearly twice as likely to bring such a charge against Black defendants, researchers found in an article published in the Yale Law Review in 2013.
For cases involving crack, Garland told prosecutors they should charge the pertinent statutory quantities that apply to powder cocaine offenses and advocate for a sentence consistent with the guidelines for powder cocaine rather than crack cocaine.
Kevin Ring, president of FAMM (formerly known as Families Against Mandatory Minimums), said anything that reduces reliance on mandatory minimums is a good step.
"The president can't eliminate mandatory minimums — Congress has to do that," Ring said.
Even if Congress were to eliminate federal mandatory minimums, states can still continue their own mandatory minimum laws. But Ames Grawert, senior counsel at the Brennan Center for Justice at New York University school of law, said the federal government could offer money to states that repeal mandatory minimum laws.
The Biden administration could also apply clemency to certain groups of convicts. In October, Biden said he would pardon anyone with a federal conviction of simple possession of marijuana, a step toward his promise to decriminalize marijuana. Expanding clemency would let Biden eliminate the effect of mandatory minimums when he can't get a bill through Congress to eliminate them, Grawert said.
Biden has not eliminated mandatory minimums, but Garland's memos are a step in that direction. We will revisit this promise again during Biden's tenure, but for now, we rate it In the Works.