Mandatory Minimums
1. Impact of Mandatory Minimum Penalties on the Federal Criminal Justice System "[D]rug mandatory minimum penalties continue to have a significant impact on the sentencing of drug offenders and on the federal prison population. The data demonstrates that offenders convicted of an offense carrying a drug mandatory minimum penalty continue to receive longer sentences than offenders not convicted of an offense carrying a drug mandatory minimum. These longer sentences, coupled with the fact that drug offenses are the most common offenses carrying mandatory minimum penalties, considerably affect the prison population. At the end of the last fiscal year, nearly half of all federal inmates were drug offenders and nearly three-quarters of those drug offenders in prison were convicted of an offense carrying a drug mandatory minimum penalty. The data also demonstrates that the effects of mandatory minimum penalties on sentencing occur for drug offenders across the culpability spectrum and regardless of an offender’s role in the offense." "Mandatory Minimum Penalties for Drug Offenses in the Federal Criminal Justice System," US Sentencing Commission, October 2017, p. 66. |
2. Drug mandatory minimum penalties continue to result in long sentences in the federal system " 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. "Mandatory Minimum Penalties for Drug Offenses in the Federal Criminal Justice System," US Sentencing Commission, October 2017, p. 4. |
3. Mandatory minimum penalties continue to have a significant impact on the size and composition of the federal prison population " As of September 30, 2016, 49.1 percent of federal inmates were drug offenders. "Mandatory Minimum Penalties for Drug Offenses in the Federal Criminal Justice System," US Sentencing Commission, October 2017, p. 4. |
4. Number and percentage of offenders convicted of an offense carrying a mandatory minimum has decreased since 2010 " 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. "Mandatory Minimum Penalties for Drug Offenses in the Federal Criminal Justice System," US Sentencing Commission, October 2017, p. 5. |
5. Convictions for drug offenses with mandatory minimums were more serious in 2016 than 2010 "Convictions for offenses carrying a drug mandatory minimum penalty were more likely to involve the use of a weapon, as evidenced by the application of a guideline enhancement for having a weapon involved in the offense (17.4% in fiscal year 2016 compared to 12.5% in fiscal year 2010) or a conviction for a firearms offense carrying a mandatory minimum (5.4% in fiscal year 2016 compared to 5.1% in fiscal year 2010). Similarly, convictions for offenses carrying a drug mandatory minimum penalty were also more likely to have resulted in bodily injury (4.1% in fiscal year 2016 compared to 1.9% in fiscal year 2010). "Mandatory Minimum Penalties for Drug Offenses in the Federal Criminal Justice System," US Sentencing Commission, October 2017, p. 5. |
6. Drug mandatory minimum penalties applied more broadly than Congress admitted " 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. "Mandatory Minimum Penalties for Drug Offenses in the Federal Criminal Justice System," US Sentencing Commission, October 2017, p. 6. |
7. Statutory relief results in significantly reduced sentences when applied " More than half (51.6%) of offenders convicted of an offense carrying a drug mandatory minimum penalty received relief at sentencing. "Mandatory Minimum Penalties for Drug Offenses in the Federal Criminal Justice System," US Sentencing Commission, October 2017, p. 6. |
8. Drug mandatory minimum penalties appear to provide a significant incentive to provide substantial assistance to the government " 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%). "Mandatory Minimum Penalties for Drug Offenses in the Federal Criminal Justice System," US Sentencing Commission, October 2017, p. 7. |
9. There were significant demographic shifts in data relating to mandatory minimum penalties from 2010 through 2016 " As they did in fiscal year 2010, Hispanic offenders continued to represent the largest group of offenders (51.9%) convicted of an offense carrying a drug mandatory minimum penalty in fiscal year 2016. However, other demographic data has shifted. "Mandatory Minimum Penalties for Drug Offenses in the Federal Criminal Justice System," US Sentencing Commission, October 2017, p. 8. |
10. Powder Cocaine Offenders Facing Federal Mandatory Minimums FY2010, 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). "Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System" (Washington, DC: US Sentencing Commission, October 2011), pp. 173-174. |
11. Average Sentence Length Under Federal Mandatory Minimum Sentencing Laws, Fiscal Year 2015 "The average sentence length of offenders who remained subject to a mandatory minimum penalty at sentencing was 138 months, over twice the average sentence of offenders receiving relief from such a penalty (66 months). The average sentence for offenders not convicted of any offense carrying a mandatory minimum penalty was 28 months." US Sentencing Commission, Quick Facts on Mandatory Minimum Penalties, May 2016. |
12. Number of Federal Cases Reported to US Sentencing Commission by Type, FY2012 "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. US Sentencing Commission, "FY 2012 Overview of Federal Criminal Cases" (Washington, DC: USSC, July 2013), pp. 2-3. |
13. 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." "Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System" (Washington, DC: US Sentencing Commission, October 2011), p. 191. |
14. 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. "Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System" (Washington, DC: US Sentencing Commission, October 2011), pp. 224-225. |
15. 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" "Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System" (Washington, DC: US Sentencing Commission, October 2011), p. 240. |
16. Mandatory Minimum Sentences in the Federal System FY2010, 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. "Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System" (Washington, DC: US Sentencing Commission, October 2011), p. 153. |
17. Federal Drug Offenders Sentenced in Fiscal Year 2015, by Drug Type "Of the 20,115 drug offenders sentenced in fiscal year 2015, slightly less than one-half (47.9%) were convicted of an offense carrying a mandatory minimum penalty. US Sentencing Commission, Quick Facts on Mandatory Minimum Penalties, May 2016. |
18. 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" "Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System" (Washington, DC: US Sentencing Commission, October 2011), p. 185. |
19. 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 "Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System" (Washington, DC: US Sentencing Commission, October 2011), p. 203. |
20. Federal Defendants Convicted of Offenses Carrying a Mandatory Minimum Sentence, FY2015, by Offense Type In Fiscal Year 2015, according to the US Sentencing Commission: US Sentencing Commission, Quick Facts on Mandatory Minimum Penalties, May 2016. |
21. Federal Inmates Serving Mandatory Minimum Sentences "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." "Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System" (Washington, DC: US Sentencing Commission, October 2011), p. 140. |
22. 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. "Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System" (Washington, DC: US Sentencing Commission, October 2011), pp. 158-159. |
23. Inconsistent Policies Between Different Federal Attorneys Offices Lead To Unequal Sentencing Practices "Interviews with prosecutors and defense attorneys in thirteen districts across the country revealed widely divergent practices with respect to charging certain offenses that triggered significant mandatory minimum penalties. These differences were particularly acute with respect to practices regarding filing notice under section 851 of title 21 of the United States Code for drug offenders with prior felony drug convictions, which generally doubles the applicable mandatory minimum sentence. In some districts, the filing was routine. In others, it was more selectively filed, and in one district, it was almost never filed at all.12 Our analysis of the data bore out these differences. For example, in six districts, more than 75 percent of eligible defendants received the increased mandatory minimum penalty for a prior conviction, while in eight other districts, none of the eligible drug offenders received the enhanced penalty.13 Statement of Judge Patti B. Saris, Chair, United States Sentencing Commission, For the Hearing on “Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences” Before the Committee on the Judiciary, United States Senate, September 18, 2013, pp. 3-4. |
24. Effect of Mandatory Minimum Sentencing Laws 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." Turner, Susan, RAND Corporation Criminal Justice Program, Justice Research & Statistics Association, "Impact of Truth-in-Sentencing and Three Strikes Legislation on Crime" Crime and Justice Atlas 2000 (Washington, DC: US Dept. of Justice, June 2000), p. 10. |
25. Unintended Consequences of Mandatory Sentencing Laws "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. Meierhoefer, B. S., "The General Effect of Mandatory Minimum Prison Terms: A Longitudinal Study of Federal Sentences Imposed" (Washington DC: Federal Judicial Center, 1992), p. 25. |
26. 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." Mauer, Marc and King, Ryan S., "A 25-Year Quagmire: The War on Drugs and Its Impact on American Society" The Sentencing Project (Washington, DC: September 2007), p. 7. |
27. Unintended Consequences of Mandatory Sentencing Laws "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." Smith, Alexander, and Polack, Harriet, "Curtailing the Sentencing Power of Trial Judges: The Unintended Consequences", Court Review (Williamsburg, VA: American Judges Association, Summer 1999), p. 6-7. |
28. Interaction of Federal Sentencing Guidelines and Mandatory Minimum Sentences 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 "Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System" (Washington, DC: US Sentencing Commission, October 2011), p. 53. |
29. Offenders Sentenced in Federal Criminal Cases FY2012 "The United States Sentencing Commission1 received information on 84,360 federal criminal cases in which the offender was sentenced in fiscal year 2012.2 Among these cases, 84,173 involved an individual offender and 187 involved a corporation or other 'organizational' offender." US Sentencing Commission, "FY 2012 Overview of Federal Criminal Cases" (Washington, DC: USSC, July 2013), p. 1. |
30. Federal Criminal Offenses Reported to US Sentencing Commission FY2012, by Type "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. US Sentencing Commission, "FY 2012 Overview of Federal Criminal Cases" (Washington, DC: USSC, July 2013), p. 1. |
31. Drug Offense Convictions Reported to US Sentencing Commission, FY2012 "Drug offenses were the second most common federal crime. In fiscal year 2012, 26,560 offenders were convicted of a drug crime, the majority involving the manufacture, sale, or transportation of a drug.5 Of these, 1,451 offenders were convicted of an offense involving simple possession of a drug. US Sentencing Commission, "FY 2012 Overview of Federal Criminal Cases" (Washington, DC: USSC, July 2013), pp. 6-7. |
32. Federal Drug Offense Convictions Reported to US Sentencing Commission, by Race, FY2012 "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." US Sentencing Commission, "FY 2012 Overview of Federal Criminal Cases" (Washington, DC: USSC, July 2013), p. 7. |
33. Relief From Mandatory Minimum Sentences Reported by US Sentencing Commission, FY2012 "Mandatory minimum sentences enacted by Congress played a large part in determining the sentence for these offenders, either outright or through the impact of these statutes on the structure of the guidelines. In fiscal year 2012, crack cocaine offenders and powder cocaine offenders were convicted of an offense that provided for the imposition of a mandatory minimum sentence at rates of 64.0 and 76.4 percent, respectively.6 Powder cocaine offenders obtained relief from a mandatory minimum sentence at a higher rate (32.3%) through the statutory 'safety valve' exception to such sentences, which requires courts to sentence an offender without regard to any otherwise applicable mandatory minimum punishment when certain conditions are met.7 In contrast, 7.6 percent of crack cocaine offenders obtained this relief. US Sentencing Commission, "FY 2012 Overview of Federal Criminal Cases" (Washington, DC: USSC, July 2013), pp. 8-9. |
34. Disposition of Federal Criminal Cases Reported to US Sentencing Commission, FY2012 "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. US Sentencing Commission, "FY 2012 Overview of Federal Criminal Cases" (Washington, DC: USSC, July 2013), pp. 4-5 |
35. Prosecutorial Discretion, Sentencing Guidelines, and Mandatory Minimum Sentences
"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." Caulkins, J., et al., Mandatory Minimum Drug Sentences: Throwing Away the Key or the Taxpayers' Money? (Santa Monica, CA: RAND Corporation, 1997), p. 24. |
36. Downward Departures in Mandatory Minimum Sentencing "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." General Accounting Office, "Federal Drug Offenses: Departures from Sentencing Guidelines and Mandatory Minimum Sentences, Fiscal Years 1999-2001," (Washington, DC: October 2003) GAO-04-105, p. 9-10. |
37. 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." Mauer, Marc and King, Ryan S., "A 25-Year Quagmire: The War on Drugs and Its Impact on American Society" The Sentencing Project (Washington, DC: September 2007), p. 8. |
38. Sentencing Commission Recommendations to Congress on Mandatory Minimum Sentencing "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." "Executive Summary: Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System" United States Sentencing Comission (Washington, DC: October 2011), p. xxx. |
39. Establishment of US Sentencing Guidelines "Prior to the Sentencing Reform Act, federal judges possessed almost unlimited authority to fashion an appropriate sentence within a broad statutorily prescribed range and 'decided [] the various goals of sentencing, the relevant aggravating and mitigating circumstances, and the way in which these factors would be combined in determining a specific sentence.'232 Sentences were limited only by statutory minimums and maximums. Because each judge was 'left to apply his own notions of the purposes of sentencing,' the federal sentencing system exhibited 'an unjustifiably wide range of sentences to offenders convicted of similar crimes.'233 Neither party had any meaningful right of appellate review. In addition, the parole system, which applied to only a portion of those sentenced and which permitted the release of prisoners based on inconsistent ideas regarding the potential for rehabilitation, exacerbated the lack of uniformity.234 "Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System" (Washington, DC: US Sentencing Commission, October 2011), pp. 37-38. |
40. US Sentencing Guidelines Post-Booker Decision "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 "Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System" (Washington, DC: US Sentencing Commission, October 2011), pp. 39-40. |
41. Unintended Consequences of Mandatory Minimum Sentences "Unintended Consequences of Mandatory Minimum Sentences: Pennsylvania Commission on Sentencing: Report to the House of Representatives, House Resolution 12, Session of 2007, "A Study on the Use and Impact of Mandatory Minimum Sentences," (Harrisburg, PA: October 2009), p. 5. |
42. 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.)" Caulkins, J., et al., Mandatory Minimum Drug Sentences: Throwing Away the Key or the Taxpayers' Money? (Santa Monica, CA: RAND Corporation, 1997), p. 16. |
43. Supreme Court Opinion in Case of US v Booker "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)." Decision of the United States Supreme Court, United States v. Booker, Case No. 04-104, Argued Oct. 4, 2004, Decided Jan. 12, 2005. |
44. Development of Mandatory Minimum Sentencing Laws "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" Mascharka, Christopher, "Mandatory Minimum Sentences: Exemplifying the Law of Unintended Consequences," Florida State University Law Review (Tallahassee, FL: Florida State University, Summer 2001) Volume 28, Number 4, p. 939. |
45. History of Mandatory Minimum Sentencing "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: Mascharka, Christopher, "Mandatory Minimum Sentences: Exemplifying the Law of Unintended Consequences," Florida State University Law Review (Tallahassee, FL: Florida State University, Summer 2001) Volume 28, Number 4, p. 939-940. |
46. History of Mandatory Minimum Sentencing "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" Mascharka, Christopher, "Mandatory Minimum Sentences: Exemplifying the Law of Unintended Consequences," Florida State University Law Review (Tallahassee, FL: Florida State University, Summer 2001) Volume 28, Number 4, p. 941. |
47. Effect of Sentence Length and Mandatory Sentencing 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." Pennsylvania Commission on Sentencing: Report to the House of Representatives, House Resolution 12, Session of 2007, "A Study on the Use and Impact of Mandatory Minimum Sentences," (Harrisburg, PA: October 2009), p. 3. |
48. Judges and Mandatory Minimums "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.'" Smith, Alexander, and Polack, Harriet, "Curtailing the Sentencing Power of Trial Judges: The Unintended Consequences", Court Review (Williamsburg, VA: American Judges Association, Summer 1999), p. 6. |
49. Reducing 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" Graham, Kyle, "Sorry seems to be the hardest word: The Fair Sentencing Act of 2010, Crack, and Methamphetamine, "University of Richmond Law Review (Richmond, VA: Richmond School of Law, March 2011) Vol. 45, Issue 3, p. 765. |
50. Reducing 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." Graham, Kyle, "Sorry seems to be the hardest word: The Fair Sentencing Act of 2010, Crack, and Methamphetamine, "University of Richmond Law Review (Richmond, VA: Richmond School of Law, March 2011) Vol. 45, Issue 3, pp. 792-793. |