President Joe Biden has a long and mixed record on criminal justice policy. He started as a public defender. As a senator amid rising crime he passed in 1994 what decades later he still called the “Biden Crime Bill.” Its history and impact is often misunderstood, as the Brennan Center has discussed. It did good things, such as adding 100,000 community police and banning assault weapons. And it did destructive things, such as sending funds to states to build more prisons if they increased sentence lengths, thus deepening mass incarceration with all its racial, social, and economic costs. When he ran for president in 2020, Biden pledged to “rethink who we’re sending to jail, how we treat those in jail, and how we help them get the health care, education, jobs, and housing they need to successfully rejoin society after they serve their time.”
For decades, crime fell even as states implemented reforms, and it remains far lower than in previous eras. Yet undeniably crime and violence have increased across the country. President Biden and Attorney General Merrick Garland have a challenge: They must find ways to shift the federal government’s policy toward a less punitive approach, one less rife with racially discriminatory policies and consequences. They must do this while ensuring public safety. And they must keep at bay the rising clamor for harsh and misguided new policies.
How are they doing? The administration took an important, if underreported, step forward in December. As my colleagues Lauren-Brooke Eisen and Ames Grawert detail in their assessment of the Biden administration’s progress toward criminal justice reform, Garland directed federal prosecutors to exercise their criminal charging discretion in a way that minimizes unnecessary incarceration.
Garland’s December 16 directive restores many of Obama-era AG Eric Holder’s reforms — which were rescinded during the Trump administration — and adds new and welcome recommendations.
First and foremost, the Garland order directs prosecutors to avoid charging drug crimes in ways that trigger federal mandatory minimum sentences, absent aggravating factors. This is a critically important step.
Mandatory minimums emerged in the 1970s in an attempt to ensure uniformity in sentencing. Reformers worried that judges had too much discretion in the process, which could be exercised in arbitrary or discriminatory ways. But the remedy has been worse than the disease. Decades of mandatory minimum sentencing have resulted in both disparate racial impacts and unnecessary incarceration, which disrupts communities, exacerbates poverty, and traps people in a lifelong engagement with the criminal justice system.
Today, mandatory minimums are commonly used in federal court, especially in drug cases. In fact, recent research shows that mandatory minimums are imposed in more than half of all federal criminal cases. Garland’s order is not a comprehensive solution, but it’s an important start.
The Garland memo also seeks to address the federal sentencing scheme around crack cocaine. The Anti-Drug Abuse Act of 1986 required at least five years’ imprisonment for simple possession of five grams of crack cocaine. To receive a five-year minimum sentence for powder cocaine possession, a defendant had to possess 100 times that amount. Critically, though crack and powder cocaine are all but chemically identical, Black Americans were more likely to be arrested for crack possession — meaning this sentencing disparity resulted in the Black community facing disproportionate punishment.
The disparate treatment of crack and powder cocaine persists in the federal criminal sentencing regime despite repeated bipartisan attempts at reform. The EQUAL Act would end the sentencing disparity between crack and powder cocaine once and for all, and the bill garnered support from 11 Republican cosponsors. In the last Congress, the House voted overwhelmingly to address the problem, but the Senate failed to advance the measure.
To partially remedy these imbalances, Garland has directed prosecutors to charge crack cocaine cases in a way that may circumvent the sentencing disparity with powder cocaine. When Congress can’t act to advance substantial justice, the executive branch must.
Garland’s move is welcome. But it comes two years into a four-year presidential term. Time is short until the next election.
The administration can do more to improve the criminal justice system. It has taken a few halting steps toward fixing the Bureau of Prisons, rocked in recent years by allegations of sexual abuse and corruption. The president has only just begun to exercise his broad powers of clemency to address overincarceration.
Rising crime creates the conditions for demagoguery. Certainly we’ve seen that in recent months. We can expect more yelling and sloganeering in Congress. We’ll all need to do our best to keep the momentum going for bipartisan reform. And Biden and Garland will need to keep pressing forward to act on their own as they can. They can prove that public safety and fairness go hand in hand. Much rides on their success.