Merrick Garland's New Charging Policy Aims To Ameliorate the Damage His Boss Did As a Drug Warrior

The attorney general's memo to prosecutors is an improvement, but it is no substitute for legislation.

The guidance regarding drug cases that Attorney General Merrick Garland gave federal prosecutors on Friday, which aims to limit the imposition of mandatory minimum sentences, reinstates and extends a policy that one of his predecessors, Eric Holder, announced during the Obama administration. Another predecessor, Jeff Sessions, reversed Holder's policy during the Trump administration.

The history behind those three decisions shows how arbitrary and draconian federal drug sentences can be. Since President Joe Biden played a leading role in creating that system, Garland's memo is an effort to ameliorate the damage that his boss did as a senator, which Biden now says he regrets. Unreformed drug warriors, by contrast, see little or nothing wrong with Biden's handiwork. They reflexively resist efforts to reduce drug penalties, whether through prosecutorial discretion or through new legislation.

In cases involving drug amounts that would trigger mandatory minimums, Garland's memo says, prosecutors should not include that information in the charges if the defendant meets certain criteria. A defendant does not qualify for such relief if his "relevant conduct" involved the use or threat of violence, possession of a weapon, drug sales to minors, or "the death or serious bodily injury of any person." A defendant is also ineligible if he has "a significant managerial role in the trafficking of significant quantities of drugs"; "significant ties to a large-scale criminal organization or cartel, or to a violent gang"; or "a significant history of criminal activity that involved the use or threat of violence, personal involvement on multiple occasions in the distribution of significant quantities of illegal drugs, or possession of illegal firearms."

Those criteria are similar to those laid out in a memo that Holder issued in August 2013, which Sessions rescinded in May 2017, a few months after he took office. But Garland's memo goes further by addressing the irrational sentencing disparity between the smoked and snorted forms of cocaine, which treats the former more severely even when the quantities are the same. The memo instructs prosecutors to "promote the equivalent treatment of crack and powder cocaine offenses" in two ways. If they decide that a mandatory minimum is appropriate for a particular defendant, Garland says, they should "charge the pertinent statutory quantities that apply to powder cocaine offenses." And at sentencing, "prosecutors should advocate for a sentence consistent with the guidelines for powder cocaine rather than crack cocaine."

These two changes could have a substantial impact on the punishment that some drug offenders receive. Federal law prescribes five- and 10-year mandatory minimums for defendants involved in the production or distribution of drugs in specified quantities. In methamphetamine cases, for example, five grams or more triggers a five-year sentence, while 50 grams or more triggers a 10-year sentence.

Those sentences can apply even to nonviolent offenders who played a minor or ancillary role in a drug transaction or operation. But if prosecutors, per Garland's policy, do not specify the weight of methamphetamine because a defendant meets the new criteria, he could receive a sentence closer to a year under federal guidelines.

How many defendants stand to benefit from this new policy? After Holder issued his memo, Paul Hofer, a policy analyst at Federal Public and Community Defenders, estimated that it might result in shorter sentences for 500 or so defendants each year. Hofer took into account two preexisting policies that limited the impact of mandatory minimums: Defendants already could escape those sentences if they qualified for a statutory "safety valve" or if the Justice Department certified that they had provided "substantial assistance" to the government.

In FY 2021, the U.S. Sentencing Commission reports, 80 percent of federal methamphetamine defendants were convicted of crimes that made them eligible for mandatory minimums. But 58 percent "were relieved of that penalty" because they qualified for the safety valve (33 percent), because they provided "substantial assistance" (16 percent), or for both reasons (9 percent). According to a Justice Department report, the FY 2021 breakdown was similar for all federal drug offenders in cases involving drug amounts above the mandatory-minimum cutoffs: About three-fifths received relief, typically through the safety valve, which applied to 45 percent of them.

The requirements for the safety valve are broadly similar to the criteria listed in Garland's memo: a limited criminal history, no violence or weapons, no deaths or serious injuries, and no management role. The defendant also must provide all information he has about the offense and other offenses that were part of the same course of conduct, although he is still eligible for the safety valve if he does not have information that is helpful to the government.

Garland's criteria are less strict in at least one respect: While a defendant is not eligible for the safety valve if he has more than four criminal history "points" (excluding one-point offenses), he could still meet Garland's requirements as long as his record does not include "the use or threat of violence, personal involvement on multiple occasions in the distribution of significant quantities of illegal drugs, or possession of illegal firearms." That additional latitude could have a meaningful effect on defendants who would not qualify for the safety valve.

When Congress established the safety valve in 1994, it was a concession that the inflexible rules created by Biden-backed legislation in the 1980s had resulted in unreasonably severe penalties for low-level, nonviolent drug offenders. With the FIRST STEP Act, which Donald Trump signed into law at the end of 2018, Congress acknowledged that such injustice was still a problem. The law loosened the safety valve's criminal history requirement, raising the maximum number of points from one to four.

In effect, Garland's memo makes the criminal history criterion more permissive still. But as an exercise of prosecutorial discretion rather than an act of Congress, that change can be reversed at any time by the current administration or a future one.

That is what happened when Sessions took over as attorney general. "It is a core principle that prosecutors should charge and pursue the most serious, readily provable offense," he wrote in his May 2017 memo. "This policy affirms our responsibility to enforce the law, is moral and just, and produces consistency. This policy fully utilizes the tools Congress has given us. By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences."

Sessions conceded that "there will be circumstances in which good judgment would lead a prosecutor to conclude that a strict application of the above charging policy is not warranted." But in such cases, he said, "prosecutors should carefully consider whether an exception may be justified" and get approval from a U.S. attorney, assistant attorney general, or a designated supervisor. In theory, Sessions admitted that "fully utiliz[ing] the tools Congress has given us" does not always produce a just outcome. But he was determined to make sure that such exceptions would be rare or nonexistent in practice.

The other main issue that Garland's memo addresses, crack penalties, shows that the tools Congress gives prosecutors are more like an ax than a scalpel. With the Anti–Drug Abuse Act of 1986, which Biden wrote, Congress created a sentencing scheme that treated smokable cocaine as if it were 100 times worse than the snorted kind. Under that law, possessing five grams of crack with intent to distribute it triggered the same five-year mandatory minimum sentence as 500 grams of cocaine powder; likewise, the 10-year mandatory minimum required five kilograms of cocaine powder but only 50 grams of crack.

Two years later, Biden co-sponsored another Anti–Drug Abuse Act, which created new mandatory minimums, including five years for crack users caught with as little as five grams, even if they were not involved in distribution. As Biden explained it on the Senate floor in 1991 while holding up a quarter, "we said crack cocaine is such a bad deal that if you find someone with this much of it—a quarter's worth, not in value, but in size—five years in jail." To be clear: Biden was not marveling at the blatant injustice of that punishment but touting his anti-drug bona fides.

Because federal crack offenders were overwhelmingly black, while cocaine powder offenders were more likely to be white or Hispanic, the rule Biden championed meant that darker-skinned defendants received substantially heavier penalties than lighter-skinned defendants for essentially the same offenses. As that trend became clear, the African-American legislators who had supported the law turned against it. By the early 1990s, pressure was building for reform of crack penalties.

"We may not have gotten it right," Biden conceded 16 years after he helped establish the 100-to-1 rule. Five years later, during an unsuccessful bid for his party's 2008 presidential nomination, he introduced a bill to equalize crack and cocaine powder sentences.

Congress still has not gone that far. But with the Fair Sentencing Act of 2010, it reduced the weight ratio, making it 18–1 rather than 100–1. The law also eliminated the five-year mandatory minimum for simple crack possession that Biden had cited as evidence of his seriousness. The FIRST STEP Act made the change in the weight ratio retroactive, authorizing the early release of about 2,400 federal prisoners.

If you do the math, you will see that the current rule is precisely 82 percent less insane than the original one. But it still has no basis in science.

The distinction between smoked and snorted cocaine "was a big mistake when it was made," Biden admitted in a speech he gave just before entering the presidential race in 2019. "We thought we were told by the experts that crack…was somehow fundamentally different. It's not different." The misconception, he added, "trapped an entire generation."

Thought we were told by the experts? Biden did not say which experts he had in mind, or what they said that he misconstrued. But his explanation gives you a sense of how much attention Congress pays to facts when it legislates, especially when the main point is to show how tough legislators are by putting more people in cages for longer periods of time.

Like Garland's more general directive concerning mandatory minimums, his new crack policy will last only until another attorney general decides it was a mistake, so a legislative solution is still important. "The Justice Department supports elimination of the crack-to-powder sentencing disparity," Garland says in his memo, which quotes a 2021 DOJ position statement to that effect:

First, the crack/powder disparity is simply not supported by science, as there are no significant pharmacological differences between the drugs: they are two forms of the same drug, with powder readily convertible into crack cocaine. Second, as documented by the Sentencing Commission, the crack/powder sentencing differential is still responsible for unwarranted racial disparities in sentencing. Third, the higher penalties for crack cocaine offenses are not necessary to achieve (and actually undermine) our law enforcement priorities, as there are other tools more appropriately tailored to that end.

Twelve years ago, the Fair Sentencing Act passed the House by a voice vote and passed the Senate by unanimous consent. By that point, pretty much everyone—even Jeff Sessions—agreed that the 100-to-1 ratio was crazy. But eliminating the disparity altogether still was not politically feasible, and even today Republicans who think further reform is necessary propose "reduc[ing] the current crack-to-powder cocaine sentencing disparity from 18:1 to 2.5:1."

That is what the inaptly named SMART Cocaine Sentencing Act, which was introduced by Sen. Chuck Grassley (R–Iowa) in April, would do. Grassley's bill attracted three co-sponsors, all Republicans. By contrast, the EQUAL Act, which Rep. Hakeem Jeffries (D–N.Y.) introduced in March 2021, would make the ratio 1 to 1. It passed the House six months later, when 143 Republicans joined 218 Democrats in endorsing that solution. But as Reason's C.J. Ciaramella notes, the bill "has languished in the Senate, despite intense lobbying from criminal justice advocacy groups."

Yesterday The Hill reported that "Senate Democrats are expressing optimism" about enacting crack sentencing reform before the end of the current lame-duck session. The Senate version of the EQUAL Act has 21 co-sponsors, including 11 Republicans, enough to overcome a filibuster. But it looks like the bill will still need to be watered down if it is to be included in an end-of-year omnibus spending package. "As part of a bipartisan deal," The Hill says, "lawmakers are planning to reduce the sentencing gap from 18-to-1 to 2.5-to-1, as some Republicans have pushed against completely eliminating differences in the mandatory sentencing minimums for cocaine offenses."

Today Reuters reported that negotiations on that deal have "stalled," and its success is "no longer seen as likely." Garland's memo, it seems, "upset some Republican legislators, who accused the Justice Department of usurping congressional authority." You might think that would be all the more reason to exercise "congressional authority," but apparently not. Thirty-six years after it was enacted amid a drug-induced panic, Biden's "big mistake" lives on.