Mandatory Minimum Sentencing

Basic Data

"Statutes carrying mandatory minimum penalties have increased in number, apply to more offense conduct, require longer terms, and are used more often than they were 20 years ago. These changes have occurred amid other systemic changes to the federal criminal justice system, including expanded federalization of criminal law, increased size and changes in the composition of the federal criminal docket, high rates of imposition of sentences of imprisonment, and increasing average sentence lengths. The changes to mandatory minimum penalties and these co-occurring systemic changes have combined to increase the federal prison population significantly."

(Offenders Facing Mandatory Minimums, by Offense Type) "In fiscal year 2010, more than three-quarters (77.4%) of the 19,896 defendants convicted of an offense carrying a mandatory minimum penalty were convicted of a drug trafficking offense, and 11.9 percent were convicted of a firearms offense.⁵⁷⁹ Convictions under just four statutes involving drug trafficking and firearms⁵⁸⁰ accounted for the majority of such convictions (71.6%).⁵⁸¹"

(Federal Inmates Subjected to Mandatory Minimums) "As of the end of fiscal year 2010, there were 191,757 offenders in BOP custody, of whom 111,460 (58.1%) were convicted of an offense carrying a mandatory minimum penalty. Of the 191,757 offenders in BOP custody, 75,579 (39.4%) were subject to that mandatory minimum penalty at sentencing."

(Type of Drug Involved) "Drug offenses have historically represented the largest portion of the federal caseload. In fiscal year 2009, this trend ended when immigration offenses became the most common type of offense reported to the Commission.⁶²⁵ In fiscal year 2010, drug offenses were 28.0 percent of the reported cases, with 23,964 offenders convicted of a drug offense. More than one-quarter (26.0%, n=6,161) of drug offenses involved marijuana, followed by powder cocaine (5,571, n=23.5%), crack cocaine (20.0%, n=4,751), methamphetamine (17.6%, n=4,169), heroin (6.6%, n=1,561) and other drugs (6.4%, n=1,514)."

(Mandatory Minimum Sentences, by Drug Type) "Approximately two-thirds (66.1%, n=15,831) of the 23,964 drug offenders in fiscal year 2010 were convicted of an offense carrying a mandatory minimum penalty. More than one-quarter (28.1%, n=4,447) of drug offenses carrying a mandatory minimum penalty involved powder cocaine, followed by crack cocaine (24.7%, n=3,905), methamphetamine (21.9%, n=3,466), marijuana (17.2%, n=2,725), heroin (6.9%, n=1,098) and other drugs (1.1%, n=172). See Figure 8-1.
"The application of mandatory minimum penalties varies greatly by the type of drug involved in the offense. For example, in fiscal year 2010, a mandatory minimum penalty applied in 83.1 percent (n=3,466) of drug cases involving methamphetamine. In contrast, such a penalty applied in less than 45 percent (n=2,725) of marijuana cases. With respect to other drugs (such as PCP and LSD), such a penalty applied in 11.4 percent (n=172) of cases."

(Length of Sentence) "The most frequently reported drug mandatory minimum penalty in fiscal year 2010 was ten years. In fiscal year 2010, almost half of all drug offenders (48.7%, n=7,716) were convicted of an offense carrying a ten-year mandatory minimum penalty. The second most frequently reported drug mandatory minimum penalty was five years (42.4%, n=6,711). Drug offenses involving a conviction of a statute carrying either a mandatory penalty of 20 years (n=692) or one of life (n=153) accounted for a small proportion (5.3%) of all drug offenses involving a conviction of a statute carrying a mandatory minimum penalty."

(Powder Cocaine Offenders Facing Mandatory Minimums, By Race/Ethnicity) "More than half (54.9%, n=3,054) of all powder cocaine offenders were Hispanic. A similar proportion of Hispanic offenders were convicted of an offense carrying a mandatory minimum penalty (58.5%, n=2,595) and remained subject to a mandatory minimum penalty at the time of sentencing (55.2%, n=947).
"The sentencing of Black powder cocaine offenders was different. Approximately one quarter of all powder cocaine offenders (26.7%, n=1,486) are Black. Although a comparable proportion of powder cocaine offenders were also convicted of an offense carrying a mandatory minimum penalty (24.5%, n=1,087), the proportion of Black powder cocaine offenders subject to the mandatory minimum at sentencing was higher, at almost one-third (32.4%, n=555). In fact, Black offenders have the highest such rate, while the proportions of all other demographic groups subject to the mandatory minimum decrease relative to their proportion of all powder cocaine cases. The majority of Black powder cocaine offenders (64.7%, n=703) did not qualify for safety valve relief from the mandatory minimum penalty due to their criminal history.⁶⁴⁹"

(Crack Cocaine Offenders Facing Mandatory Minimums, By Race) "The overwhelming majority of crack cocaine offenders convicted of an offense carrying a mandatory minimum were male (92.7%, n=3,620)658 and were United States citizens (97.2%, n=3,796).659 More than three-quarters (78.6%, n=3,728) of all crack cocaine offenders were Black. Black offenders constituted a similar proportion (78.5%, n=3,059) of those crack cocaine offenders convicted of an offense carrying a mandatory minimum penalty. The proportion of Black crack cocaine offenders subject to a mandatory minimum penalty at the time of sentencing (78.7%, n=1,961) was comparable to their proportion in the overall crack cocaine offender population and the population of crack cocaine offenders convicted of an offense carrying a mandatory minimum penalty."

(Methamphetamine Offenders Facing Mandatory Minimums, By Race/Ethnicity and Gender) "The demographic characteristics for methamphetamine offenders convicted of an offense carrying a mandatory minimum penalty differ from those observed for most other major drug types in two ways. First, more than half (51.3%, n=1,776) of methamphetamine offenders convicted of an offense carrying a mandatory minimum penalty are White and another 42.6 percent (n=1,476) are Hispanic. Black methamphetamine offenders constitute only 2.2 percent (n=77) of the methamphetamine offenders convicted of an offense carrying a mandatory minimum penalty. This is the smallest proportion of Black offenders for any major drug type.⁶⁷⁵ In contrast, Other Race offenders constitute 3.8 percent (n=132) of the methamphetamine offenders convicted of an offense carrying a mandatory minimum penalty, which is the largest proportion of Other Race offenders for any drug type.
"Second, female offenders accounted for 18.1 percent (n=627) of all methamphetamine offenders convicted of an offense carrying a mandatory minimum penalty. Although this not a large percentage, it is higher than both the proportion of female offenders in the overall population of drug offenders convicted of an offense carrying a mandatory minimum penalty (10.2%, n=1,611) and the proportion of female offenders convicted of an offense carrying a mandatory minimum penalty for any other drug type.⁶⁷⁶"

(Heroin Offenders Facing Mandatory Minimums, By Race/Ethnicity) "Slightly more than half of heroin offenders convicted of an offense carrying a mandatory minimum penalty were Hispanic (61.3%, n=672) and about one-quarter (23.4%, n=256) were Black. These percentages shift slightly when examining heroin offenders subject to the mandatory minimum penalty at sentencing. Approximately half of heroin offenders subject to the mandatory minimum penalty at sentencing were Hispanic (51.7%, n=247) and about one-third (35.8%, n=171) were Black. The shift is primarily attributable to criminal history differences between the two. The proportion of offenders in each criminal history category who were Black increased with the criminal history category. Conversely, the proportion of offenders in each criminal history category who were Hispanic decreased with the increased criminal history category.⁶⁸⁸"

(Powder Cocaine Offenders by Offender Function) "For powder cocaine offenders, the most common functions for offenders were High Level Supplier/Importer (24.1%), Courier (21.1%) and Wholesaler (20.7%). The least common functions were Grower/Manufacturer (0.0%), Manager (2.0%) and Supervisor (2.1%).⁶⁵⁵"

(Crack Cocaine Offenders by Offender Function) "For crack cocaine offenders, the most common functions for offenders were Street-Level Dealer (47.0%) and Wholesaler (27.9%). The least common functions were Mule (0.2%), Supervisor (0.5%), High Level Supplier/Importer (0.5%), and Manager (0.7%).⁶⁶⁷
"Over three-quarters (77.8%) of Street-Level Dealer offenders were convicted of an offense carrying a mandatory minimum penalty. Wholesaler offenders were convicted of an offense carrying a mandatory minimum penalty at a rate of 93.5 percent in crack cocaine cases. High-Level Supplier/Importer, Organizer/Leader, Manager, Supervisor, and Mule offenders were convicted of statutes carrying a mandatory minimum penalty in all cases."

(State Mandatory Minimum Sentencing Laws) "Currently, 36 states have instituted mandatory minimum sentences for drug convictions. New York's laws were the earliest and harshest. They were adopted in 1973 at the behest of then-Governor Nelson A. Rockefeller, whose views on criminal punishment had hardened dramatically in the wake of the Attica prison riot in upstate New York in 1970."

(Relief from Mandatory Minimum Penalties, by Race and Gender) "In fiscal year 2010, more than half (54.4%, n=8,619) of drug offenders convicted of an offense carrying a mandatory minimum penalty received relief from the mandatory minimum penalty. Approximately one quarter (26.1%, n=4,136) of the drug offenders received relief through operation of the safety valve alone. Drug offenders who did not qualify for the safety valve but who provided substantial assistance to the government accounted for 19.3 percent (n=3,062) of all drug offenders convicted of an offense carrying a mandatory minimum penalty. An additional 9.0 percent (n=1,421) of drug offenders received relief from the mandatory minimum penalty by qualifying for application of both the safety valve and substantial assistance provisions. See Figure 8-4.
"The rate at which offenders received relief from the mandatory minimum penalty through these provisions varied by race, gender, and citizenship.⁶²⁹ For example, White offenders qualified for some form of relief from a mandatory minimum penalty most often, with 63.7 percent (n=2,328) of all White offenders convicted of an offense carrying such a penalty obtaining relief from the penalty. Black offenders qualified for relief from mandatory minimum penalties least often, in 39.4 percent (n=1,890) of cases in which they were convicted of an offense carrying such a penalty.
"Almost three-fourths of all female drug offenders (73.0%, n=1,176) received relief from the mandatory minimum penalty, compared to just over half (52.3%, n=7,443) of male offenders. Non-citizen offenders received relief from the mandatory minimum penalty more often (69.5%, n=3,300) than United States citizens (48.0%, n=5,317)."

(Unintended Consequences) "After eleven years, it should be obvious that the system has failed and that it cannot be fixed -- even by the Supreme Court -- because the criminal justice system has been distorted: the enhanced power of the prosecutor in sentencing has diminished the traditional role of the judge. The result has been even less fairness, and a huge rise in the prison population."

(Unintended Consequences) "Mandatory minimum sentence laws appear to be contributing to increased sentence length, making more emphatic a trend in drug cases that predated their enactment. Mandatory minimum statutes and the guidelines seem also to have narrowed the difference in the sentences imposed for equally serious offenses involving marijuana and opiates, and to have red uced the importance of age and the distinction between leadership and middleman roles in the sentencing decision. In all instances, the narrowing of differences stems from more severe sentencing of the previously advantaged group.
"Mandatory minimum sentence laws do not seem to have ensured that all of those involved in the proscribed behaviors receive at least the minimum term: just under one-half of those who would apparently be eligible received lesser sentences. Further, despite the laws' emphasis on offense behavior, sentences still vary by offender characteristics. As in the past, the least culpable offenders, and offenders who are women, continue to receive less severe sentences than others involved in similar offenses. Further, both black and Hispanic offenders now receive noticeably more severe sentences than their white counterparts.
"The latter trend suggests that there may be questions to be considered concerning the impact of shifting discretion affecting sentencing from the court to the prosecutor's office."

(Harsher Sentencing for Drug Offenders) "Along with the stepped-up pace of arrests in the 1980s, legislatures throughout the country adopted harsher sentencing laws in regard to drug offenses. The federal system, in particular, led the way with the passage of the Anti-Drug Abuse Act of 1986 and the Anti-Drug Abuse Act of 1988. Among a number of provisions, these laws created a host of severe mandatory minimum sentencing laws for drug offenses and affected the calibration of the federal Sentencing Guidelines, which were being formulated simultaneous to these statutory changes. The result of these developments was to remove discretion from the sentencing judge to consider the range of factors pertaining to the individual and the offense that would normally be an integral aspect of the sentencing process, thereby increasing the number of individuals in federal court exposed to a term of incarceration for a drug offense."

Laws and Policies

(Judges' Authority Transferred to Prosecutors) "As indicated above, the authority once possessed by judges to decide on sentences within broad guidelines has, in the case of mandatory minimums, not been narrowed so much as it has been transferred to prosecutors. Though judges are required to impose specified sentences in certain situations, prosecutors are generally not required to charge a count carrying a mandatory minimum if other options are available. Prosecutors may use this flexibility as a bargaining chip in securing cooperation or a guilty plea for a lesser charge."

(Downward Departure) "As previously noted, various drug offenses carry a mandatory minimum. For such offenses, the mandatory minimum precludes judges from sentencing at a lower guideline range minimum or from granting a downward departure that might otherwise be available, unless one of two statutory provisions applies. First, a judge may impose a sentence below the applicable mandatory minimum if the government (the federal prosecutor) files a motion with the court for such sentencing relief because of the defendant's 'substantial assistance' in the investigation or prosecution of another person. The discretion to make such a motion rests solely with the prosecutor. Second, in the absence of a substantial assistance motion, the 'safety valve' provision affords relief from any otherwise applicable mandatory minimum sentence for drug offenders who have minimal criminal history (i.e., no more than 1 criminal history point); were not violent, armed, or high-level participants; and provided the government with truthful information regarding the offense. In these cases, the court is directed by statute to impose a sentence pursuant to the sentencing guidelines without regard to a mandatory minimum."

(Sentencing Commission Recommendations to Congress) "If Congress decides to exercise its power to direct sentencing policy by enacting mandatory minimum penalties, the Commission believes that such penalties should (1) not be excessively severe, (2) be narrowly tailored to apply only to those offenders who warrant such punishment, and (3) be applied consistently. Sentencing data and interviews with prosecutors and defense attorneys indicate that mandatory minimum penalties that are considered excessively severe tend to be applied inconsistently."

(Transferring Drug Prosecutions from State to Federal Jurisdiction) "The prosecution of many drug offenders is discretionary and can be subject to either state or federal jurisdiction. Frequently, state cases are transferred to federal prosecutors in order for the defendant to face stiffer penalties in the federal system. The potential of facing a mandatory minimum or a Guideline range sentence that is significantly longer than what one would face in state court increases the likelihood that a defendant will accept a plea bargain."

"Unintended Consequences of Mandatory Minimum Sentences:
"- Significant increases in the costs of corrections due to longer prison terms and an increasing prison population;
"- Removal from consideration of other sentencing options that may prove to be less costly and/or more effective than mandatory incarceration;
"- Impact on all aspects of the criminal justice system, including pleas or verdicts and offender eligibility for rehabilitation programs and early release;
"- Limiting the discretion of the sentencing judge."

(Mandatory Minimums vs. Sentencing Guidelines) "Despite their general leveling effect, mandatory minimums can actually increase sentencing disparities in some cases. For example, as the US Sentencing Commission (1991, p. 31) points out, the law provides for large sentencing step-ups or "cliffs" over tiny quantity ranges. A first-time offender found to be in possession of 5.1 grams of crack must be sentenced to at least 5 years in prison. But a first-time offender found to be in possession of 5.0 grams of crack misses the mandatory minimum criterion and can be imprisoned for at most one year. Thus, these two very similar offenders draw sentences differing by at least four years. (Of course, any sentencing regime based at least partly on amounts possessed is likely to include such step-ups. But sentencing guidelines allow for smaller and more numerous steps or ranges that may overlap, and they allow other factors to be considered within those ranges.)"

(US v Booker Supreme Court Opinion) "Justice Breyer delivered the opinion of the Court in part, concluding that 18 U. S. C. A. §3553(b)(1), which makes the Federal Sentencing Guidelines mandatory, is incompatible with today's Sixth Amendment 'jury trial' holding and therefore must be severed and excised from the Sentencing Reform Act of 1984 (Act). Section 3742(e), which depends upon the Guidelines' mandatory nature, also must be severed and excised. So modified, the Act makes the Guidelines effectively advisory, requiring a sentencing court to consider Guidelines ranges, see §3553(a)(4), but permitting it to tailor the sentence in light of other statutory concerns, see §3553(a)."

(History) "High levels of drug use and experimentation in the 1960s resulted in numerous long prison sentences under the Boggs Act.³¹ In 1970, Congress responded to the concerns of prosecutors, wardens, and families of those convicted, repealing virtually all provisions imposing mandatory minimum sentences for drug violations.³² Congress commented that lengthening prison sentences 'had not shown the expected overall reduction in drug law violations.'³³"

(History) "The movement towards the current state of sentencing for federal drug crimes began with the passage of the Sentencing Reform Act of 1984 (SRA).³⁵ In passing the SRA, a bipartisan Congress fundamentally changed sentencing by rejecting the rehabilitation model of punishment.³⁶ The Act announced new objectives:
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.³⁷
"A revolutionary feature of the SRA was its creation of the United States Sentencing Commission, an independent expert panel within the judicial branch charged with refining sentencing.³⁸"

(History) "Two years after enacting the SRA, Congress passed the Anti-Drug Abuse Act of 1986 (ADAA),⁴⁸ which incorporated a tiered system of minimum sentences for crack, powder cocaine, and other commonly abused substances based on the quantity of the drugs involved.⁴⁹ The ADAA was passed in the midst of public paranoia and outcry over the crack epidemic and the fear of AIDS being spread through drug use.⁵⁰ This political climate led to broad bipartisan support for the ADAA, with the bill passing the House by a 392-16 vote and the Senate on a voice vote.⁵¹"

Sociopolitical Research

(Effect on Recidivism) "The study by the [Pennsylvania Sentencing] Commission found that neither length of sentence nor the imposition of a mandatory minimum sentence alone was related to recidivism. In the four recidivism studies conducted as part of this project, the recidivism rates (i.e., arrest for a new crime or technical violation resulting in reincarceration) three years after release were as follows: drug delivery offenders (54%), school zone offenders (57%), repeat violent offenders (54%) and firearms offenders (50%). Younger offenders, those with a greater number of prior arrests and/or convictions, and those sentenced to prison were more likely to recidivate; those sentenced for a drug mandatory were more likely to be re-arrested for a drug offense and those sentenced for a repeat violent offense or firearms mandatory were more likely to be re-arrested for an offense against a person. Consistent with finding of other research on deterrence and recidivism, the certainty of incarceration may be more important than the duration of the confinement."

(Effect on Crime and Arrest Rates) "Though it is still too early to make a final judgment, RAND found that three strikes and truth-in-sentencing laws have had little significant impact on crime and arrest rates. According to the Uniform Crime Reports, states with neither a three strikes nor a truth-in-sentencing law had the lowest rates of index crimes, whereas index crime rates were highest in states with both types of get-tough laws."

(Opinion of Judges) "Most of the judges we interviewed were quite bitter about the operation of the sentencing guidelines. As one of them remarked: 'The people who drew up these guidelines never sat in a court and had to look a defendant in the eye while imposing some of these sentences.'"

Crack v Powder Cocaine Sentencing Disparity

"Current data and information continue to support the core findings contained in the 2002 Commission Report, among them: (1) The current quantity-based penalties overstate the relative harmfulness of crack cocaine compared to powder cocaine. (2) The current quantity-based penalties sweep too broadly and apply most often to lower level offenders. (3) The current quantity-based penalties overstate the seriousness of most crack cocaine offenses and fail to provide adequate proportionality. (4) The current severity of crack cocaine penalties mostly impacts minorities.
"Based on these findings, the Commission maintains its consistently held position that the 100-to-1 drug quantity ratio significantly undermines the various congressional objectives set forth in the Sentencing Reform Act."

(Eliminating the Crack/Powder Cocaine Disparity) "On August 3, 2010, President Obama signed the Fair Sentencing Act of 2010 into law.¹ This measure eliminated the five-year mandatory minimum prison sentence that previously adhered under federal law upon a conviction for possession of five grams or more of crack cocaine.² The Act also increased the amount, in weight, of crack that must be implicated for either a five- or a ten-year mandatory minimum sentence to apply upon conviction of any of several federal drug trafficking crimes.³"

(Eliminating the Crack/Powder Cocaine Disparity) "The precise terms of the legislation that would address the discrepancy were somewhat more difficult to devise. Eventually, however, it was agreed that (1) the threshold quantity of crack necessary to implicate the five-year mandatory minimum would be increased to twenty-eight grams, or approximately one ounce (effectively creating an 18:1 powder-to-crack ratio);¹⁴² (2) a similar upward adjustment would be made to the quantity of crack necessary for a defendant to receive a ten-year minimum term;¹⁴³ (3) the five-year mandatory minimum sentence applicable to mere possession of crack would be abolished;¹⁴⁴ and (4) more severe penalties would apply to drug crimes involving violence, threats of violence, or other aggravating circumstances.¹⁴⁵ Retention of some disparity between crack and powder cocaine was essential to pas-sage of the Act, because many members of Congress continued to believe (with some justification)¹⁴⁶ that given its customary methods of distribution and administration, crack was at least somewhat more powerful, more addictive, and more closely tied to violent crime than powder cocaine was.¹⁴⁷ To these Senators and Representatives, these differences supported some distinction be-tween powder and crack cocaine—just not a 100:1 discrepancy.¹⁴⁸ By adopting an 18:1 ratio, instead of equalizing the penalties attached to crack and powder cocaine, the measure that would be-come the Fair Sentencing Act assuaged these concerns and facilitated its enactment into law."