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August 1, 2022

Prez Biden "Safer America Plan" seeks more cops and fewer (state) mandatory minimums with a federal drug sentencing kicker

Via this new "Fact Sheet," the While House today provides lots and lots more details on the "Safer America Plan" that Prez Biden announced a few weeks ago.  There are far too many particulars to summarize them here, and here are the points emphasized at the outset of this Fact Sheet:

Today, the President is providing greater details regarding the Safer America Plan. President Biden’s fiscal year 2023 budget requests a fully paid-for new investment of approximately $35 billion to support law enforcement and crime prevention -- in addition to the President’s $2 billion discretionary request for these same programs.  The Safer America Plan details how this $37 billion will be used to save lives and make communities safer.

Specifically, the Plan:

  1. Funds the police and promotes effective prosecution of crimes affecting families today, including by funding 100,000 additional police officers who will be recruited, trained, hired, and supervised consistent with the standards in the President’s Executive Order to advance effective, accountable community policing in order to enhance trust and public safety;
  2. Invests in crime prevention and a fairer criminal justice system, including by investing $20 billion in services that address the causes of crime and reduce the burdens on police so they can focus on violent crime, and by incentivizing the reform of laws that increase incarceration without redressing public safety;
  3. Takes additional commonsense steps on guns to keep dangerous firearms out of dangerous hands, including by calling on Congress to require background checks for all gun sales and ban assault weapons and high-capacity magazines.

The request to fund 100,000 additional police officers and to advance various gun control measure will surely garner the most attention, but there are some items that ought to be of particular interest for sentencing fans. For example:

The Plan establishes a new $15 billion over 10 years Accelerating Justice System Reform grant program that jurisdictions can use to advance strategies that will 1) prevent violent crime and/or 2) ease the burden on police officers so they do not have to respond to non-violent situations that may not merit police intervention.  Doing so not only enhances public safety, but also delivers evidence-based criminal justice reform that advances racial equity....

[I]n order to receive these critical grants, jurisdictions must repeal mandatory minimums for non-violent crimes and change other laws that contribute to increased incarceration rates without making our communities safer.  The Plan calls on Congress to appropriate $14.7 billion in mandatory funding for this new program, which will add on to the $300 million request in the President’s FY23 discretionary budget to fully fund this effort.

In addition, this Plan address drug enforcement and sentencing in two ways:

Impose tough penalties on all forms of fentanyl.  Over 100,000 people have died from drug overdoses in the past 12 months, many of them from the synthetic opioid fentanyl. The federal government regulates fentanyl as a Schedule I drug, meaning it is subject to strict regulations and criminal penalties.  But drug suppliers have found a loophole: they can easily alter the chemical structure of fentanyl — creating “fentanyl related substances” — to enhance the drug’s psychoactive properties and try to evade regulation of fentanyl. The Drug Enforcement Administration and Congress temporarily closed this loophole, but it will reopen in January 2023 unless Congress acts.  The Safer America Plan includes the Administration’s 2021 proposal to permanently schedule all fentanyl related substances into Schedule I so traffickers of these deadly substances face the penalties they deserve....

End the crack-powder disparity and make the fix retroactive. The Safer America Plan calls on Congress to end once and for all the racially discriminatory sentencing disparity between crack cocaine and powder cocaine offenses — as President Biden first advocated in 2007 — and make that change fully retroactive.  This step would provide immediate sentencing relief to the 10,000 individuals, more than 90 percent of whom are Black, currently serving time in federal prison pursuant to the crack/powder disparity.

I cannot help but note that federal law includes lots of mandatory minimum provisions for non-violent crimes (such as drug offenses) that contribute to increased incarceration rates without any clear evidence that those provisions make our communities safer.  Notably, when on the campaign trail, candidate Joe Biden stated that he "supports an end to mandatory minimums" and that "as president, he will work for the passage of legislation to repeal mandatory minimums at the federal level."  Though I am pleased to see Prez Biden fulfill a campaign promise to "give states incentives to repeal their mandatory minimums," I hope he might before too long focus needed attention on federal mandatory minimum repeal as well.

August 1, 2022 at 07:43 PM | Permalink


If we are to take federalism seriously, as we are often encouraged to do when discussing drug prohibition, then the federal government should stay out of states' decisions whether to have mandatory minimum sentencing.

As to federal mandatory minimums: If judges had shown they could be fully trusted, we never would have had either guidelines or MMs at all. Judges should have a degree of discretion, sure, but 100% discretion 100% of the time proved, not surprisingly, to be a bad idea.

Posted by: Bill Otis | Aug 3, 2022 9:07:15 AM

As I have expressed in previous posts, I think mandatory minimums is a buzz phrase that means what the writer wants it to mean.

Most, if not all offenses, have a mandatory minimum in the literal sense of the term in that there is a range of punishment beneath which a court may not go. A court can't sentence a rapist to a two-month sentence. But, as used by most activists, mandatory minimums tend to mean one of two things.

First, when activists talk about mandatory minimums, they often mean probation ineligible offenses. Unlike most offenses, for which the sentencing court can decide, for example, to impose a the minimum sentence and then place the defendant on probation, these offenses require a defendant to actually serve a minimum term. Now, I don't have a problem with the federal government giving a carrot to states to eliminate this type of requirement for actually non-violent offenses, but looking at my state's own criminal code, I am not seeing any significant non-violent offenses (other than repeat driving while intoxicated offenses) that carry such a provision. (And I would strongly oppose any financial incentive to reduce the relatively weak laws most states have on driving while intoxicated).

The second type of thing often mischaracterized as mandatory minimums are "truth in sentencing" laws -- laws that require the service of a significant port of the sentence if a defendant ultimately goes to prison. Most states adopted truth in sentencing laws in response to federal incentives. Based on my own experience, I am generally in favor of truth in sentencing laws. The percent of time that a person serves on a case should not be delegated to an arbitrary parole board. Instead, it should be something that both sides know at the time of the plea. I also think that it adds to public trust in the system. If a six-year sentence means something resembling six years rather than something closer to eight or nine months.

Posted by: tmm | Aug 3, 2022 5:20:06 PM

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