"• In fiscal year 2016, over half (52.8%) of offenders convicted of an offense carrying a drug mandatory minimum penalty faced a mandatory minimum penalty of ten years or greater.
"• In fiscal year 2016, the average sentence for offenders who were convicted of an offense carrying a drug mandatory minimum penalty was 94 months of imprisonment, more than double the average sentence (42 months) for drug offenders not convicted of an offense carrying a mandatory minimum penalty.
"• Offenders who qualified for relief received significantly lower sentences (64 months) than those offenders who remained subject to a mandatory minimum penalty at sentencing (126 months). Even when offenders received relief from a mandatory minimum penalty, the average sentence (64 months) was still one and half times greater than the average sentence for those not convicted of an offense carrying a drug mandatory minimum.
"• The guidelines also contributed to the sentence length as nearly three-quarters of offenders who remained subject to a drug mandatory minimum penalty (72.6%) had a guideline minimum that exceeded the statutorily required minimum, and the majority of offenders (58.8%) who remained subject to a drug mandatory minimum penalty received a sentence above the statutorily required minimum."

"• Less than half (44.7%) of all drug offenders sentenced in fiscal year 2016 were convicted of an offense carrying a mandatory minimum penalty, which was a significant decrease from fiscal year 2010 when approximately two-thirds (66.1%) of drug offenders were convicted of such an offense. In fact, the number of offenders convicted of a drug mandatory minimum penalty has decreased by 44.7 percent since fiscal year 2010, falling from 15,831 offenders to 8,760 such offenders in fiscal year 2016.
"• The downward trend in the prevalence of offenders convicted of such penalties occurred across all drug types, but the largest decrease occurred in the context of crack cocaine offenders. Following the passage of the Fair Sentencing Act of 2010, the percent of crack cocaine offenders convicted of an offense carrying a mandatory minimum penalty has fallen from 80.1 percent in fiscal year 2010 to 46.6 percent in fiscal year 2016."

"• While some legislative history leading up to passage of the Anti-Drug Abuse Act of 1986 suggests that “major” traffickers would be subject to the ten-year drug mandatory minimum penalty and “serious” traffickers would be subject to the five-year penalty, they often apply to offenders who perform relatively low level functions. For example, nearly one-third (32.2%) of Couriers and more than one-quarter of Mules (25.4%) were convicted of such offenses.
"• While the rate of conviction for an offense carrying a drug mandatory minimum penalty tended to decrease with the culpability level of the offender as reflected by their function, a significant percentage of offenders in every function were nevertheless convicted of such offenses. In fact, a majority of offenders in seven of the ten function categories (including some lower-level functions) were convicted of an offense carrying a drug mandatory minimum penalty.
"• Many of the offenders convicted of an offense carrying a drug mandatory minimum penalty had little or no criminal history. Almost half (45.9%) were in Criminal History Category I — 37.7 percent of all offenders convicted of an offense carrying a mandatory minimum received no criminal history points under the guidelines, while 8.1 percent received one criminal history point. On the other end of the spectrum, 14.2 percent of all offenders convicted of an offense carrying a mandatory minimum penalty were in Criminal History Category VI."

"• In fiscal year 2016, offenders convicted of an offense carrying a drug mandatory minimum penalty were nearly twice as likely to have provided substantial assistance to the government as those not convicted of such an offense (29.8% compared to 15.2%).
"• Nearly a quarter of offenders facing a five-year drug mandatory minimum penalty (22.2%) received a substantial assistance reduction, while 36.0 percent of offenders facing a ten-year mandatory minimum penalty and more than half of offenders facing a mandatory minimum penalty of 20 years or more received a substantial assistance reduction (52.3%)."

"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"

"For the last four years, immigration cases have been the largest single type of federal offenses. This trend continued in fiscal year 2012, where immigration cases accounted for 32.2 percent of all federal cases, despite a decrease of 3,169 cases in the total number of immigration cases reported to the Commission. This decrease is the first since fiscal year 2006 and represents a 10.7 percent decrease in this type of case from the prior fiscal year. Even with this decrease, the number of immigration cases has increased by 97.0 percent over the past decade, and represents a much larger portion of the overall federal case load in fiscal year 2012.
"The number of drug cases has been relatively stable over the last five fiscal years. In fiscal year 2012, drug cases accounted for 30.2 percent of all cases. Firearms cases were 9.8 percent of the caseload in fiscal year 2012, a slight increase from the year before but less than the 10.9 percent of the caseload that these cases represented in fiscal year 2008. The proportion of fraud cases over that period also was relatively stable at 10.5 percent in fiscal year 2012, but has increased slightly from 9.8 percent in fiscal year 2008."

"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"

"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."

"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"

In Fiscal Year 2015, according to the US Sentencing Commission:
"In 22.2% of all cases, the offender was convicted of an offense carrying a mandatory minimum penalty.
"• Drug trafficking offenses accounted for over two-thirds (66.2%) of the offenses carrying a mandatory minimum penalty, followed by firearms (15.4%) and child pornography offenses (8.8%).
"• Almost 40 percent (39.2%) of offenders convicted of an offense carrying a mandatory minimum were relieved of the mandatory minimum penalty because:
"•• 20.3% received relief solely by providing the government with substantial assistance;²
"•• 13.0% received relief solely through the statutory safety valve provision,3 and
"•• 5.8% received relief through both the statutory safety valve provision and by providing substantial assistance to the government.
"• After relief was applied, 60.8% of these offenders remained subject to a mandatory minimum penalty at sentencing, reflecting 13.5% of all federal offenders."

"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)."

"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."

"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."

Basic Data - Sentencing Guidelines

"Congress charged the [US Sentencing] Commission with promulgating guidelines that are 'consistent with all pertinent provisions' of federal law³³⁸ and with providing sentencing ranges that are 'consistent with all pertinent provisions of title 18, United States Code.'³³⁹ To that end, the Commission has incorporated mandatory minimum penalties into the guidelines since their inception, and has continued to incorporate new mandatory minimum penalties as enacted by Congress.340
"The Commission generally has established guideline ranges that are slightly above the mandatory minimum penalty for offenders convicted of offenses carrying a mandatory minimum penalty, but its methods of incorporating mandatory minimum penalties into the guidelines have varied over time, with the benefit of the Commission’s continuing research, experience, and analysis.³⁴¹ The Commission historically has achieved this policy by setting a base offense level for Criminal History Category I offenders that corresponds to the first guidelines range on the sentencing table with a minimum guideline range in excess of the mandatory minimum."

"The vast majority of federal cases involve an individual defendant. Over the last decade, the number of these cases has generally increased each year; however, in fiscal year 2012 the number of cases reported to the Commission fell by 2,028. This represents a decrease of 2.4 percent from fiscal year 2011.
"For the last decade, cases involving immigration, drugs, fraud, or firearms have been the most common federal criminal cases and make up the vast majority of federal felonies and Class A misdemeanors. In fiscal year 2012, these crimes accounted for 82.7 percent of all cases reported to the Commission."

"The race of drug offenders varied even more widely by the type of drug involved in the offense. More than 45 percent (46.2%) of all drug offenders convicted in federal court were Hispanic, while Black offenders comprised 25.9 percent of all drug offenders and White offenders 25.3 percent of all drug offenders. Yet, in crack cocaine cases, 82.6 percent of those convicted were Black, and in methamphetamine cases 48.1 percent of the offenders were White."

"The vast majority of convicted defendants plead guilty. In fiscal year 2012, 97.0 percent of all offenders did so, the highest rate since fiscal year 2002.
"When offenders pleaded guilty, 45.9 percent received a sentence below the applicable sentencing guideline range, either at the request of the government, at their own request, or initiated by the court. Approximately 62 percent (62.4%) of these below range sentences were requested by the government, usually because the defendant had provided substantial assistance to the government or had agreed to have his or her case handled as part of an early disposition program.
"In the 3.0 percent of cases in which the offender did not plead guilty, 37.1 percent received a sentence below the guideline range. Only 6.1 percent of these below range sentences were requested by the government.
"Most federal offenders convicted of a felony or Class A misdemeanor received a sentence of incarceration. In fiscal year 2012, 7.1 percent of offenders received a sentence of probation (i.e., where no type of confinement was imposed), a rate that over time has decreased from a high of 14.8 percent in 1993. Another 2.9 percent were sentenced to periods of both probation and some type of confinement, and 2.8 percent were sentenced to a combination of imprisonment and community confinement, such as in a half-way house or through home confinement."

"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."

"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."

"For nearly 20 years, federal judges were required to impose sentences within the applicable guideline range unless the court found the existence of an aggravating or mitigating circumstance not adequately taken into consideration by the Commission in formulating the sentencing guidelines.²⁴⁰ This system changed in 2005, when the Supreme Court held in United States v. Booker that the mandatory operation of the guidelines violated the Sixth Amendment right to a jury trial and the associated right to have all 'elements' of the offense proved beyond a reasonable doubt.²⁴¹ The Court remedied the constitutional violation by striking two provisions from the Sentencing Reform Act, thereby rendering the guidelines 'effectively advisory.'²⁴² The Court reasoned that although an advisory guideline system lacked the mandatory features that Congress enacted, it nevertheless 'retains other features that help to further congressional objectives, including providing certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities, and maintaining sufficient flexibility to permit individualized sentences when warranted.'²⁴³ The Court concluded that an advisory guideline system would 'continue to move sentencing in Congress’s preferred direction, helping to avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary.'²⁴⁴
"Booker and its progeny explicitly and repeatedly reinforced the continued importance of the guidelines in the sentencing determination.245 District courts are required to properly calculate and consider the guidelines when sentencing.²⁴⁶ 'The district court, in determining the appropriate sentence in a particular case, therefore, must consider the properly calculated guideline range, the grounds for departure provided in the policy statements, and then the factors under 18 U.S.C. § 3553(a).'²⁴⁷ Most circuits agree on the three-step approach reflected in USSG §1B1.1 (Application Instructions), including the consideration of departure provisions in the Guidelines Manual, in determining the sentence to be imposed.²⁴⁸"

"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.)"

"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"

"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"

"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.'"