Mandatory Minimum Sentencing

(mandatory minimum sentencing - harsher sentencing for drug offenses) "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."

(mandatory minimum sentencing - recommended characteristics of penalties) "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."

(mandatory minimum sentencing - unintended consequences)
"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 minimum sentencing - unintended consequences)
"Despite their general leveling effect, mandatory minimums can actually increase sentencing disparities in some cases ..."

"Mandatory minimums are also intended to override judicial discretion, which has been perceived as giving rise to unwarranted disparities in sentencing. However, prosecutors can still bring different charges in similar cases ..."

"Lengthy mandatory minimum sentences provide a stick for inducing cooperation in investigating and prosecuting others involved in the drug trade. ... This provision, however, can conflict with the public interest (expressed through special provisions for "kingpins") in meting out the longest sentences to those most heavily involved in the drug trade."

(mandatory minimum sentencing - 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."

(mandatory minimum sentencing - 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."

Mandatory Minimum Sentencing - Data

(2010 - mandatory minimum sentencing - drug trafficking offenses) "Over three-quarters (77.4%) of convictions of an offense carrying a mandatory minimum penalty were for drug trafficking offenses."

(2010 - mandatory minimum sentencing - number of offenders) "75,579 (39.4%) of the 191,757 offenders in BOP [Bureau of Prison] custody as of September 30, 2010, were subject to a mandatory minimum penalty at sentencing."

(2010 - mandatory minimum sentencing - type of drug) "The type of drug involved in drug cases significantly impacts the application of mandatory minimum penalties. In fiscal year 2010, the highest rate of conviction of such penalties was in methamphetamine cases (83.2%) while the lowest rate for the major drug types was in marijuana cases (44.3%)."

(2010 - mandatory minimum sentencing - drug offenses) "In fiscal year 2010, two of every three offenders convicted of an offense carrying a mandatory minimum penalty were drug offenders. Almost half of all drug offenders (48.7%) who were convicted of an offense carrying a mandatory minimum penalty were convicted of an offense carrying a 10-year penalty."

(2010 - mandatory minimum sentencing - racial mix) "Hispanic offenders accounted for the largest group (38.3%) of offenders convicted of an offense carrying a mandatory minimum penalty, followed by Black offenders at 31.5 percent, White offenders at 27.4 percent and Other Race offenders at 2.7 percent."

(2006 - number of powder cocaine and crack cocaine offenses) "Powder cocaine and crack cocaine offenses together historically have accounted for about half of the federally-sentenced drug trafficking offenders, approximately 11,000 in 2006. In 1992, powder cocaine offenses comprised 74 percent of the 8,972 cocaine offenses and crack cocaine offenses accounted for 26 percent of the cocaine offenses. By 1996, the total number of cocaine offenses decreased slightly to 8,705 and approximately half of cocaine offenses were powder cocaine and half were crack cocaine offenses. This even distribution of types of cocaine has remained consistent through 2006, with 5,744 powder cocaine offenses and 5,397 crack cocaine offenses sentenced in that Fiscal Year."

(2006 - mandatory minimum sentencing - racial disparities) "Historically the majority of crack cocaine offenders are black, but the proportion steadily has declined since 1992: 91.4 percent in 1992, 84.7 percent in 2000, and 81.8 percent in 2006. Conversely, the proportion of white crack cocaine offenders has increased steadily from 3.2 percent in 1992 to 5.6 percent in 2002, to 8.8 percent in 2006. For powder cocaine, Hispanic offenders have comprised a growing proportion of cases. In 1992, Hispanics accounted for 39.8 percent of powder cocaine offenders. This proportion increased to over half (50.8%) by 2000 and continued increasing to 57.5 percent in 2006. There has been a corresponding decrease in the proportion of white offenders for powder cocaine, comprising 32.3 percent of offenders in 1992, decreasing by approximately half to 17.8 percent by 2000, and continuing to decrease to 14.3 percent by 2006."

(2005 - mandatory minimum sentencing - crack cocaine vs. powder cocaine offenders by most serious function)

In 2005, 56.8% of crack cocaine offenders were low-level offenders such as mules or street dealers. Only 8.4% were high-level dealers (importers or organizers).

In 2005, 40.4% of powder cocaine defendants were low-level offenders such as mules or street-dealers. Only 12.8% were high-level dealers (importers or organizers).

(1999-2001 - mandatory minimum sentencing - drug sentence downward departures) "Similar to federal sentences overall, of the 69,279 drug sentences for which complete departure information was available, we found that most sentences were within guideline ranges (56 percent). Unlike federal sentences overall, from fiscal years 1999 to 2001, federal drug sentences departed downward more frequently due to substantial assistance (28 percent) than other reasons (16 percent), as shown in table 1. Other reasons that drug sentences departed downward included early disposition, that is, fast track, programs initiated by prosecutors; plea agreements; and judges' consideration of mitigating circumstances."

(1999-2002 - mandatory minimum sentencing - racial disparities) "Table 2 presents a bivariate analysis of who received the mandatory sentence. As can be seen in the table, overall, about 82% of the offenders received the two-year mandatory sentence, or longer. Hispanic offenders [96%] were more likely than black offenders [75%] or white offenders [65%]to receive the mandatory sentence."

Mandatory Minimum Sentencing - Law and Policy

(mandatory minimum sentencing - authority of judges) "... 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."

(mandatory minimum sentencing - 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."

(mandatory minimum sentencing - drug prosecutions in state or federal jurisdictions) "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."

(mandatory minimum sentencing - United States 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)."

(mandatory minimum sentencing - history) "In the middle of the twentieth century Congress instituted a series of mandatory minimum sentences for drug offenses.²⁷ In 1951, Congress passed a comprehensive narcotics control measure known as the Boggs Act.²⁸ The Boggs Act contained mandatory minimum sentences for narcotic offenses with no chance for parole or probation after the first offense: two years for the first offense, five years for the second, and ten years for the third.²⁹ These sentences became even harsher through amendments contained in the Narcotics Control Act of 1956.³⁰"

(mandatory minimum sentencing - 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"

(mandatory minimum sentencing - 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"

(mandatory minimum sentencing - 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"

Mandatory Minimum Sentencing - Research

(mandatory minimum sentencing - 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."

(mandatory minimum sentencing - effect on crime 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."

(mandatory minimum sentencing - 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.'"

Mandatory Minimum Sentencing - Crack Cocaine vs. Powder Cocaine

(mandatory minimum sentencing - cocaine/crack cocaine sentencing disparity) "Because it takes 100 times more powder cocaine than crack cocaine to trigger the same mandatory minimum penalty, this penalty structure is commonly referred to as the '100-to-1 drug quantity ratio.'"

(mandatory minimum sentencing - cocaine/crack cocaine sentencing disparity) "Under current law, possession of five grams or more of crack cocaine triggers a mandatory minimum sentence of five years in prison; simple possession of any quantity of any other controlled substance (except flunitrazepan) by a first-time offender – including powder cocaine – is a misdemeanor offense punishable by a maximum of one year in prison."

(mandatory minimum sentencing - cocaine/crack 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."

(cocaine - law - mandatory minimum disparity) "In establishing the mandatory minimum penalties for cocaine, Congress differentiated between the two principal forms of cocaine – cocaine hydrochloride [hereinafter referred to as powder cocaine] and cocaine base [hereinafter referred to as crack cocaine] – and provided significantly higher punishment for crack cocaine offenses.⁹ As a result of the 1986 Act, federal law¹⁰ requires a five-year mandatory minimum penalty for a first-time trafficking offense involving five grams or more of crack cocaine, or 500 grams or more of powder cocaine, and a ten-year mandatory minimum penalty for a first-time trafficking offense involving 50 grams or more of crack cocaine, or 5,000 grams or more of powder cocaine. Because it takes 100 times more powder cocaine than crack cocaine to trigger the same mandatory minimum penalty, this penalty structure is commonly referred to as the '100-to-1 drug quantity ratio.'"

(mandatory minimum sentencing - cocaine and crack disparity) "The inconsistency in sentencing between crack and powder cocaine is illustrative of the racial disparities in drug enforcement, and is mainly a result of inaccurate perceptions of its different effects on behavior, and the reality that cocaine, being more expensive, enjoyed greater popularity with the affluent and powerful. Previously, a five-gram possession of crack cocaine received a five-year federal mandatory minimum sentence.⁸⁵ In contrast, a person would have had to sell 500 grams of powder cocaine to get the same sentence. In August 2010, the Fair Sentencing Act of 2010 was signed into law, reducing the federal sentencing disparity between federal crack and powder cocaine offenses. Instead of the 100:1 ratio, the rule adopts an 18:1 ratio amount of powder cocaine versus crack cocaine triggering the same sentence. The rule also eliminates the mandatory minimum sentence for simple possession of crack;⁸⁶ it is the first time in 40 years that a mandatory minimum has been repealed."

(mandatory minimum sentencing - eliminating the crack cocaine/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"

(mandatory minimum sentencing - eliminating the crack cocaine/powder cocaine disparity) To enact the Fair Sentencing Act of 2010, "... 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."