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Amy Sherman
By Amy Sherman January 4, 2022

Biden’s promise to eliminate mandatory minimums stalls

In his first year in office, President Joe Biden did not push for legislation that would repeal federal mandatory minimum sentences. 

As a candidate, Biden promised major changes to the American criminal justice system that include decriminalizing marijuana and eliminating cash bail, in addition to ending mandatory minimum sentencing. 

So far as president, there has been incremental, administrative progress on mandatory minimums that is far short of what Biden pledged to pursue.

Congress began passing mandatory minimum sentencing laws in the 1980s, including one that Biden co-sponsored. Supporters say that mandatory minimums provide uniformity in sentences. Opponents say they have contributed to prison overcrowding and take away power from judges. 

About a week after Biden took office, Monty Wilkinson, the acting attorney general, issued a memo rescinding a 2017 sentencing directive from President Donald Trump's first attorney general, Jeff Sessions. Sessions instructed prosecutors to charge offenses that carry the most substantial sentences, including mandatory minimum sentences. But Wilkinson's three-paragraph memo, intended as an interim step, didn't do away with mandatory minimums. 

Wilkinson reinstated 2010 guidance issued by Eric Holder, the attorney general under President Barack Obama. Holder's guidance didn't mention "mandatory minimums" specifically, but it said that a federal prosecutor should ordinarily charge "the most serious offense that is consistent with the nature of the defendant's conduct, and that is likely to result in a sustainable conviction" — language that referred to longstanding guidance that predated Holder. 

In 2013, Holder went further and directed prosecutors to avoid charges carrying mandatory minimum sentences for low level, nonviolent drug offenders. Holder said that such sentences "do not promote public safety, deterrence, and rehabilitation."

Attorney General Merrick Garland said during his February 2021 Senate confirmation hearing that he supported Biden's goal to eliminate mandatory minimums and give the sentencing authority to judges.

"We don't have to seek the highest possible offense with the highest possible sentence," Garland said. 

But Garland chose not to reinstate Holder's 2013 policy to avoid mandatory minimums for low-level drug offenders, said Alison Siegler, a law professor and founding director of the Federal Criminal Justice Clinic at the University of Chicago Law School.

"After 20 years defending people charged with federal crimes, I've learned that prosecutors are rarely agents of change," Siegler told PolitiFact by email. "This is unfortunate, because Garland has real power to reduce racialized mass incarceration. He can and should instruct federal prosecutors to refrain from charging and seeking mandatory sentences, especially in drug cases, where popular opposition to mandatory minimums is strongest. Half measures won't be effective; empirical work suggests that the Obama administration's efforts to temper mandatory minimums in drug cases did little to reduce sentences or racial disparities."

Kevin Ring, president of FAMM (formerly known as Families Against Mandatory Minimums), said that Garland could issue a memo that directs prosecutors to use mandatory minimums rarely. "He could put a process in to make it more difficult to seek mandatory minimums and make them the exception, not the rule," Ring said.

The Biden administration may not have pursued eliminating mandatory minimums due to other priorities in his first year in office, set against the backdrop of violent crime spikes in some cities. 

Critics of Biden's lack of progress on criminal justice reform also say that his support for a Trump-era policy on fentanyl-like drugs is also counter to his promise to eliminate mandatory minimums. The Biden administration has supported a policy to categorize fentanyl analogs as a Schedule 1 drug, the strictest classification level.

We will watch to see if Biden takes any steps toward his promise to eliminate mandatory minimums, but for now we rate his progress Stalled. 

Our Sources

U.S. Department of Justice, Memo, Jan. 29, 2021

Attorney General Eric Holder, Memo, Aug. 12, 2013

Reuters, Key quotes from U.S. attorney general nominee Garland on criminal justice policies, Feb. 22, 2021

The Marshall Project, Biden Could Have Taken the War on Drugs Down a Notch. He Didn't. June 16, 2021

PolitiFact, Fact-check: Joe Biden's defense of his 1994 crime bill and mass incarceration, May 30, 2019

Alison Siegler, University of Chicago Law School professor, End Mandatory Minimums essay written for the Brennan Center, Oct. 18, 2021

Telephone interview, Kevin Ring, president of FAMM, Jan. 3, 2021

Email interview, Kara Gotsch, deputy director of the Sentencing Project, Jan. 3, 2021

Email interview, Alison Siegler, law professor and founding director of the Federal Criminal Justice Clinic at the University of Chicago Law School, Jan. 3, 2021

 

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