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In 1970, Congress repealed most drug-related mandatory minimums, focusing instead more on a public health approach to drugs.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.

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.