"• As of September 30, 2016, 49.1 percent of federal inmates were drug offenders.
"• Among drug offenders in federal prison as of September 30, 2016, almost three-quarters (72.3%) were convicted of an offense carrying a mandatory minimum penalty, and more than half (50.4%) remained subject to that penalty at sentencing."

"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).
"• Offenders convicted of such offenses were also more likely to have played a leadership role, as evidenced by application of a guideline adjustment for aggravating role (11.9% in fiscal year 2016 compared to 7.7% in fiscal year 2010), and were less likely to receive a mitigating role adjustment (12.1% compared to 16.3%).
"• Consistent with increased likelihood of the above aggravating factors, the rate at which offenders convicted of an offense carrying a drug mandatory minimum penalty received relief through the statutory safety valve decreased from 35.1 percent in fiscal year 2010 to 30.0 percent in fiscal year 2016."

"• More than half (51.6%) of offenders convicted of an offense carrying a drug mandatory minimum penalty received relief at sentencing.
"• In fiscal year 2016, 21.8 percent of offenders convicted of a drug mandatory minimum penalty qualified for relief under the safety valve, 21.5 percent received relief for providing substantial assistance, and 8.2 percent received relief for both safety valve and substantial assistance.
"• Offenders who received safety valve relief (57 months) or provided substantial assistance (81 months) received significantly lower sentences than those offenders who remained subject to a drug mandatory minimum penalty at sentencing (126 months). Offenders who received both safety valve relief and provided substantial assistance had even lower average sentences (41 months)."

"• 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.
"• White offenders and Black offenders shared the highest average sentence among offenders convicted of an offense carrying a drug mandatory minimum penalty (103 months) in fiscal year 2016. White offenders also had the highest average sentence among both offenders relieved of the application of a drug mandatory minimum penalty at sentencing (69 months) and offenders subject to a drug mandatory minimum penalty at sentencing (136 months). This is a change from fiscal year 2010, when Black offenders had the longest average sentences in each of the above categories.
"• While Black offenders convicted of an offense carrying a drug mandatory minimum penalty continued to receive relief from the drug mandatory minimum penalty least often, the gap between Black offenders and White offenders has narrowed. In fiscal year 2016, 64.5 percent of Black offenders convicted of an offense carrying a drug mandatory minimum penalty remained subject to that penalty compared to 50.8 percent of White offenders convicted of such an offense (a difference of 13.7 percentage points). By comparison, the difference was 24.2 percentage points in fiscal year 2010 (59.5% of Black offenders convicted of an offense carrying a drug mandatory minimum penalty compared to 35.3% of White offenders)."

"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."

"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."

"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"

"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 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."

"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."

"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
"Similarly, the Commission’s interviews revealed vastly different policies in different districts in the charging of cases under section 924(c) of title 18 of the United States Code for the use or possession of a firearm during a crime of violence or drug trafficking felony. In that statute, different factors trigger successively larger mandatory minimum sentences ranging from five years to life, including successive 25-year sentences for second or subsequent convictions. The Commission found that districts had different policies as to whether and when they would bring charges under this provision and whether and when they would bring multiple charges under the section, which would trigger far steeper mandatory minimum penalties.¹⁴ The data bears out these geographic variations in how these mandatory minimum penalties are applied. In fiscal year 2012, just 13 districts accounted for 45.8 percent of all cases involving a conviction under section 924(c) even though those districts reported only 27.5 percent of all federal criminal cases that year. In contrast, 35 districts reported 10 or fewer cases with a conviction under that statute.
"When similarly situated offenders receive sentences that differ by years or decades, the criminal justice system is not achieving the principles of fairness and parity that underlie the SRA [Sentencing Reform Act]."

"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."

"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."

"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."

"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.
"Offenses involving cocaine, in either powder form or base (crack) form, were the most common drug crimes, accounting for 38.0 percent of the offenders sentenced under the drug guidelines. These cases were almost evenly split between the two forms of the drug until fiscal year 2008. After that year, crack cocaine cases began decreasing steadily from 24.4 percent in fiscal year 2008 to 13.8 percent in fiscal year 2012. After cocaine cases (powder and crack cases combined), marijuana offenses were the next most common, representing 27.6 percent of all drug crimes. In fact, marijuana cases were more prevalent than either crack cocaine or powder cocaine cases individually. Drug offenses involving methamphetamine represented 19.5 percent of all drug crimes. Heroin cases were the least common of the major drug offenses, accounting for 8.6 percent of all drug crimes.
"Most drug offenders were United States citizens, but the percentage of drug offenders who are citizens varied widely depending on the type of drug involved in the offense. For example, 97.8 percent of crack cocaine offenders were United States citizens, while only 51.1 percent of marijuana offenders were United States citizens."

"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.
"This difference is largely due to the differing criminal histories of powder cocaine and crack cocaine trafficking offenders. In fiscal year 2012, 58.3 percent of powder cocaine offenders were assigned to Criminal History Category I (offenders with a criminal history score under the sentencing guidelines of zero or one) while only 21.5 percent of crack cocaine offenders were assigned to that category. Only offenders assigned to Criminal History Category I are eligible to receive the benefit of the safety valve.
"Overall, crack cocaine offenders continue to have, on average, a more serious criminal history than any other category of drug offender.⁸ Crack cocaine offenders were assigned to the most serious criminal history category (CHC VI) in 26.8 percent of all crack cocaine cases. In contrast, powder cocaine offenders were assigned to CHC VI in only 8.8 percent of cases. By comparison, 14.7 percent of heroin offenders were assigned to CHC VI and 10.3 percent of methamphetamine offenders were assigned to CHC VI. Offenders convicted of marijuana offenses generally had the least serious criminal histories, with 66.2 percent assigned to CHC I and only 3.4 percent to CHC VI.⁹"

Laws and Policies

"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."

"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."

"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
"The Sentencing Reform Act, the culmination of lengthy bipartisan efforts, sought to eliminate unwarranted disparity in sentencing and to address the inequalities created by indeterminate sentencing.²³⁵ Congress determined that sentencing should be tailored:
"(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.²³⁶
"To this end, the Sentencing Reform Act created the Commission as an independent agency within the judicial branch of the federal government²³⁷ and directed it to promulgate guidelines that were required to be used for sentencing within the prescribed statutory maximum.²³⁸"

"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.)"

"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)."

"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"

"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."

"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"