Federal Mandatory Minimum Sentencing Statutes
Congressional research reportSep 9, 2013
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Federal Mandatory Minimum Sentencing
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Senior Specialist in American Public Law
September 9, 2013
Congressional Research Service
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RL32040
Federal Mandatory Minimum Sentencing Statutes
Summary
Federal mandatory minimum sentencing statutes limit the discretion of a sentencing court to
impose a sentence that does not include a term of imprisonment or the death penalty. They have a
long history and come in several varieties: the not-less-than, the flat sentence, and piggyback
versions. Federal courts may refrain from imposing an otherwise required statutory mandatory
minimum sentence when requested by the prosecution on the basis of substantial assistance
toward the prosecution of others. First-time, low-level, non-violent offenders may be able to
avoid the mandatory minimums under the Controlled Substances Acts, if they are completely
forthcoming.
The most common imposed federal mandatory minimum sentences arise under the Controlled
Substance and Controlled Substance Import and Export Acts, the provisions punishing the
presence of a firearm in connection with a crime of violence or drug trafficking offense, the
Armed Career Criminal Act, various sex crimes including child pornography, and aggravated
identity theft.
Critics argue that mandatory minimums undermine the rationale and operation of the federal
sentencing guidelines which are designed to eliminate unwarranted sentencing disparity. Counter
arguments suggest that the guidelines themselves operate to undermine individual sentencing
discretion and that the ills attributed to other mandatory minimums are more appropriately
assigned to prosecutorial discretion or other sources.
State and federal mandatory minimums have come under constitutional attack on several grounds
over the years, and have generally survived. The Eighth Amendment’s cruel and unusual
punishments clause does bar mandatory capital punishment, and apparently bans any term of
imprisonment that is grossly disproportionate to the seriousness of the crime for which it is
imposed. The Supreme Court, however, has declined to overturn sentences imposed under the
California three strikes law and challenged as cruel and unusual. Double jeopardy, ex post facto,
due process, separation of powers, and equal protection challenges have been generally
unavailing.
The United States Sentencing Commission’s Mandatory Minimum Penalties in the Federal
Criminal Justice System (2011) recommends consideration of amendments to several of the
statutes under which federal mandatory minimum sentences are most often imposed.
Lists of the various federal mandatory minimum sentencing statutes are appended, as is a
bibliography of legal materials. This report is available in an abridged version as CRS Report
RS21598, Federal Mandatory Minimum Sentencing Statutes: An Abbreviated Overview, without
the citations to authority, footnotes, or appendixes that appear here.
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Federal Mandatory Minimum Sentencing Statutes
Contents
Introduction...................................................................................................................................... 1
Types of Mandatory Minimums ................................................................................................ 1
History ....................................................................................................................................... 4
Substantial Assistance ............................................................................................................... 7
Upon the Motion of the Government .................................................................................. 8
To Reflect a Defendant’s Substantial Assistance................................................................. 9
Mandatory Minimums and the Sentencing Guidelines ............................................................. 9
First Commission Report .................................................................................................... 9
Second Commission Report .............................................................................................. 12
Constitutional Boundaries.............................................................................................................. 15
Legislative Authority ............................................................................................................... 15
Commerce Clause ............................................................................................................. 15
Necessary and Proper ........................................................................................................ 17
Treaty Power ..................................................................................................................... 17
Territorial and Maritime .................................................................................................... 17
Cruel and Unusual Punishment ............................................................................................... 18
Proportionality................................................................................................................... 18
Juries, Grand Juries, and Due Process ..................................................................................... 26
Separation of Powers ............................................................................................................... 29
Drug Crimes................................................................................................................................... 29
Possession with Intent ............................................................................................................. 34
Drug Kingpin ........................................................................................................................... 36
Safety Valve ............................................................................................................................. 36
One Criminal History Point............................................................................................... 37
Only the Non-violent......................................................................................................... 39
Only Single or Low Level Offenders ................................................................................ 40
Tell All ............................................................................................................................... 40
Firearms Offenses .......................................................................................................................... 41
Section 924(c).......................................................................................................................... 41
Predicate Offenses ............................................................................................................. 43
Possession in Furtherance ................................................................................................. 44
Use or Carry ...................................................................................................................... 45
Discharge and Brandish..................................................................................................... 46
Short Barrels, Semiautomatics, Machine Guns, and Bombs ............................................. 46
Other Sentencing Considerations ...................................................................................... 47
Armor Piercing Ammunition ............................................................................................. 48
Aiding, Abetting, and Conspiracy ..................................................................................... 49
Second Amendment........................................................................................................... 50
Double Jeopardy................................................................................................................ 50
Sentencing Commission .................................................................................................... 51
Armed Career Criminal Act (18 U.S.C. 924(e)) ...................................................................... 52
Predicate Offenses ............................................................................................................. 52
Legislative Authority ......................................................................................................... 55
Second Amendment........................................................................................................... 55
Apprendi and Recidivism .................................................................................................. 55
Eighth Amendment ............................................................................................................ 56
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Federal Mandatory Minimum Sentencing Statutes
Double Jeopardy................................................................................................................ 57
Sex Offenses .................................................................................................................................. 58
Federal Enclaves and Prisons .................................................................................................. 60
Offenses............................................................................................................................. 61
Definitions ......................................................................................................................... 62
Aggravated Sexual Abuse ................................................................................................. 62
Sexual Abuse ..................................................................................................................... 63
Abusive Sexual Contact .................................................................................................... 64
Repeated Sex Offenses Against Children .......................................................................... 64
Travel and Commerce.............................................................................................................. 65
Coercion and Enticement .................................................................................................. 66
Transportation of a Minor ................................................................................................. 67
Travel to Sexually Abuse a Child ...................................................................................... 68
Commercial Sex Trafficking of a Child or by Force ......................................................... 69
Murder in the Course of Certain Sexual Offenses ................................................................... 71
Child Pornography................................................................................................................... 71
Production of Child Pornography ..................................................................................... 71
Subsection 2251(a): Use of a Child to Produce ................................................................ 73
Subsection 2251(b): Permitting the Use of a Child to Produce......................................... 73
Subsection 2251(c): Overseas Production......................................................................... 74
Subsection 2251(d): Advertising ....................................................................................... 74
Selling or Buying Children for Pornographic Purposes .................................................... 75
Certain Activities Involving Child Pornography (Real Child) .......................................... 76
Certain Activities Involving Child Pornography (Real and Virtual) ................................. 80
Sentencing Commission .................................................................................................... 86
Identity Theft ................................................................................................................................. 86
Whoever .................................................................................................................................. 87
During and in Relation to ........................................................................................................ 88
Subsection (c) Felony Predicates............................................................................................. 88
Federal Crimes of Terrorism Predicates .................................................................................. 89
Knowingly ............................................................................................................................... 89
Transfers, Possesses, or Uses................................................................................................... 90
Without Lawful Authority ....................................................................................................... 90
A Means of Identification ........................................................................................................ 90
Of Another Person ................................................................................................................... 91
Sentencing ............................................................................................................................... 91
Sentencing Commission Report .............................................................................................. 92
Attachments ............................................................................................................................. 93
Two-Year Predicate Offenses ............................................................................................ 93
Terrorist Predicate Offenses .............................................................................................. 95
Three Strikes (18 U.S.C. 3559(c)) ................................................................................................. 96
Notice and Objections ............................................................................................................. 97
Predicate Offenses ................................................................................................................... 97
Serious Drug Offenses....................................................................................................... 97
Serious Violent Felonies.................................................................................................... 98
Constitutional Considerations ........................................................................................... 99
List of Federal Mandatory Minimum Sentencing Statutes .......................................................... 100
Imprisonment for Not Less Than a Specified Term of Years or Life..................................... 100
Death or Imprisonment for Any Term of Years or for Life.................................................... 107
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Death or Imprisonment for Life............................................................................................. 108
Imprisonment for Any Term of Years or Life ........................................................................ 110
Imprisonment for Life ........................................................................................................... 114
Imprisonment for Any Term of Years .................................................................................... 114
Imprisonment for the Same, or Some Multiple of, the Sentence for a
Predicate Offense When the Predicate Requires Imposition
of a Mandatory Minimum Sentence ................................................................................... 115
Bibliography ................................................................................................................................ 115
Books and Articles................................................................................................................. 115
Notes and Comments ............................................................................................................. 119
Tables
Table 1. Federal Drug Offenses: Mandatory Minimum Terms of Imprisonment .......................... 33
Table 2. Federal Sex Offenses: Mandatory Minimum Terms of Imprisonment ............................ 58
Contacts
Author Contact Information......................................................................................................... 120
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Federal Mandatory Minimum Sentencing Statutes
Introduction
Federal mandatory minimum sentencing statutes (mandatory minimums) demand that execution
or incarceration follow criminal conviction.1 Among other things, they cover drug dealing,
murdering federal officials, and using a gun to commit a federal crime. They have been a feature
of federal sentencing since the dawn of the republic. They circumscribe judicial sentencing
discretion,2 although they impose few limitations upon prosecutorial discretion,3 or upon the
President’s power to pardon.4 They have been criticized as unthinkingly harsh and incompatible
with a rational sentencing guideline system; yet they have also been embraced as hallmarks of
truth in sentencing and a certain means of incapacitating the criminally dangerous. This is a brief
overview of federal statutes in the area and a discussion of some of the constitutional challenges
they have faced.5
Types of Mandatory Minimums
Mandatory minimums come in many stripes, including some whose status might be disputed. The
most widely recognized are those that demand that offenders be sentenced to imprisonment for
1
Although others may differ, this report does not classify as mandatory minimum sentencing statutes those statutory
proscriptions that call for a mandatory minimum fine unless they also call for a mandatory minimum term of
imprisonment.
2
Commentators have defined mandatory minimums in a number of ways, see e.g., Mandatory Minimum Sentences
Coupled with Multi-Facet Interventions: An Effective Response to Domestic Violence, 6 UNIVERSITY OF THE DISTRICT
OF COLUMBIA LAW REVIEW 51, 68 (2001), quoting, Determinate Sentencing and Judicial Participation in Democratic
Punishment, 108 HARVARD LAW REVIEW 947 (1995)(“mandatory minimums require judges to impose a specified
minimum prison term if an offense meets certain statutory criteria”); Lowenthal, Mandatory Sentencing Laws:
Undermining the Effectiveness of Determinate Sentencing Reform, 81 CALIFORNIA LAW REVIEW 61, 64 (1993)
(“mandatory sentencing statutes generally provide that when a specified circumstance exists in connection with the
commission of a crime (1) the court must sentence the defendant to prison and (2) the duration of the defendant’s
incarceration will be substantially longer than it would have been in the absence of the circumstance”); Bernstein,
Discretion Redux—Mandatory Minimums, Federal Judges, and the ‘Safety Valve’ Provision of the 1994 Crime Act, 20
UNIVERSITY OF DAYTON LAW REVIEW 765, 768 (1995)(ellipse in the original)(“[m]andatory minimums, which are most
commonly applied in drug cases, are statutory provisions calling for a sentence of ‘no less than ... ’ for a given offense
(adjusted for criminal record)”).
The definition used here—i.e., any statute that effectively requires a federal judge, at a minimum, to sentence a
convicted defendant to a term of imprisonment is a mandatory minimum—is designed to avoid exclusion of any
provisions that should arguably be listed.
3
E.g., 18 U.S.C. 3553(e)(“Upon motion of the Government, the court shall have the authority to impose a sentence
below a level established by statute as minimum sentence so as to reflect a defendant’s substantial assistance in the
investigation or prosecution of another person who has committed an offense ... ”)(emphasis added). Prosecutorial
discretion is somewhat confined, however, by the courts’ authority to accept or reject plea bargains, F.R.Crim.P. 32,
and their consideration of relevant but uncharged misconduct under the federal Sentencing Guidelines, U.S.S.G.
§1B1.3.
4
E.g., U.S.Const. Art. II, §2 (“The President ... shall have power to grant reprieves and pardons for offenses against the
United States ... ”).
5
Various parts of the report are drawn from the author’s earlier reports, principally CRS Report RL30281, Federal
Mandatory Minimum Sentencing Statutes: A List of Citations with Captions, Introductory Comments, and
Bibliography; CRS Report R42386, Mandatory Minimum Sentencing for Federal Sex Offenses: An Overview; CRS
Report R42100, Mandatory Minimum Sentencing: Federal Aggravated Identity Theft; CRS Report R41326, Federal
Mandatory Minimum Sentences: The Safety Valve and Substantial Assistance Exceptions; CRS Report R41412,
Federal Mandatory Minimum Sentencing: The 18 U.S.C. 924(c) Tack-on in Cases Involving Drugs or Violence; CRS
Report R41461, Three Strike Mandatory Sentencing (18 U.S.C. 3559(c)): An Overview.
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Federal Mandatory Minimum Sentencing Statutes
“not less than” a designated term of imprisonment.6 Some are triggered by the nature of the
offense,7 others by the criminal record of the offender.8 A few members of this “not less than”
category are less “mandatory” than others, because Congress has provided a partial escape hatch
or safety valve. For example, several of the drug-related mandatory minimums are subject to a
“safety valve” for small time, first time, non-violent offenders that may render their minimum
penalties less than mandatory, or at least less severe.9 Still others can be avoided at the behest of
prosecution for a defendant’s substantial assistance against his cohorts.10 Some of the other “notless-than” mandatory minimums purport to permit the court to sentence an offender to a fine
rather than to a mandatory term of imprisonment.11
6
E.g., 18 U.S.C. 924(c)(1)(A)(“ ... any person who, during and in relation to any crime of violence or drug trafficking
crime ... for which the person may be prosecuted in a court of the United States uses or carries a firearm ... shall in
addition to the punishment provided for such crime ... (i) be sentenced to a term of imprisonment of not less than 5
years ... ”).
7
E.g., 18 U.S.C. 844(f)(1)(“Whoever maliciously damages or destroys ... by means of fire or an explosive any ...
personal or real property ... owned or possessed by ... the United States ... shall be imprisoned for not less than 5 years
and not more than 20 years ... ”).
8
E.g., 18 U.S.C. 2252(b)(1)(“Whoever violates ... paragraphs (1), (2), or (3) of subsection (a) [relating to commercial
activities with respect child pornography] shall be fined under this title and imprisoned not less than 5 years and not
more than 20 years.... ”).
9
“Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the
Controlled Substances Act (21 U.S.C. 841, 844, 846) or section 1010 or 1013 of the Controlled Substances Import and
Export Act (21 U.S.C. 960, 963), the court shall impose a sentence pursuant to guidelines promulgated by the United
States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the
court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that—
“(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;
“(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon
(or induce another participant to do so) in connection with the offense;
“(3) the offense did not result in death or serious bodily injury to any person;
“(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under
the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the
Controlled Substances Act; and
“(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all
information and evidence the defendant has concerning the offense or offenses that were part of the same course of
conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to
provide or that the Government is already aware of the information shall not preclude a determination by the court that
the defendant has complied with this requirement,” 18 U.S.C. 3553(f).
10
“Upon motion of the Government, the court shall have the authority to impose a sentence below a level established
by statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution
of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and
policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code,” 18
U.S.C. 3553(e).
11
E.g.,, 2 U.S.C. 390 (“Every person who, having been subpenaed as a witness under this chapter [relating to
Congressional contested elections] to give testimony or to produce documents, willfully makes default, or who, having
appeared, refuses to answer any question pertinent to the contested election case, shall be deemed guilty of a
misdemeanor punishable by fine of not more than $1,000 nor less than $100 or imprisoned for not less than one month
nor more than twelve months, or both”)(emphasis added).
The initial Sentencing Commission report included them within its definition of mandatory minimums, United States
Sentencing Commission, Special Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal
Justice System (Commission Report I), 4-5 (1991)(“Under some statutes, a mandatory prison term is only required
when the court otherwise determines to impose a sentence of imprisonment”); the more recent Commission report
includes them in its appended list of mandatory minimum statutes with the notation that they “require a minimum
period of imprisonment only when the court imposes a term of imprisonment,” Report to the Congress: Mandatory
Minimum Penalties in the Federal Criminal Justice System (Commission Report II), A-20 (2011).
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Federal Mandatory Minimum Sentencing Statutes
A second generally recognized category of mandatory minimums consists of the flat or single
sentence statutes, the vast majority of which call for life imprisonment.12 Closely related are the
capital punishment statutes that require imposition of either the death penalty or imprisonment for
life, or death or imprisonment either for life or for some term of years.13
The “piggyback” statutes make up a third class. The piggyback statutes are not themselves
mandatory minimums but sentence offenders by reference to underlying statutes including those
that impose mandatory minimums.14
Until the Supreme Court intervened in Booker v. United States to eliminate the binding effect of
the Sentencing Guidelines,15 the final and least obvious group was comprised of statutes whose
violation resulted in the imposition of a mandatory minimum term of imprisonment by operation
of law, or more precisely by operation of the Sentencing Reform Act and the Sentencing
Guidelines issued in its name.16 After Booker and the line of cases that followed, the Guidelines
cannot fairly be characterized as a source of mandatory minimum sentences, although they
continue to tilt heavily toward incarceration.17
(...continued)
They highlight instances where Congress might have been thought to establish a mandatory minimum but where its
treatment of the fine to be imposed may leave its intentions in doubt. See e.g., 18 U.S.C. 242 (Whoever ... willfully
subjects any person ... to the deprivation of any rights ... if death results ... shall be fined under this title, or imprisoned
for any term of years or for life, or both..... ”)(emphasis added).
12
E.g., 18 U.S.C. 1651 (“Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and
is afterwards brought into or found in the United States shall be imprisoned for life”)(emphasis added).
13
E.g., 18 U.S.C. 1201(a)(“Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away
and holds for ransom or reward or otherwise any person ... if death of any person results, shall be punished by death or
life imprisonment”).
Most observers might exclude from this category capital crimes made punishable by death, life imprisonment, or
imprisonment for any term of years, under the theory that a sentence of imprisonment for zero years is a sentence of
“any term of years.” Yet this can hardly have been the intent of Congress given the seriousness of the offense to which
the sentence attaches.
14
E.g., 18 U.S.C. 1114 (“Whoever kills ... any officer or employee of the United States ... shall be punished – (1) in the
case of murder, as provided under section 1111.... ”).
15
543 U.S. 220 (2005). Booker left the Guidelines in place and essentially intact, but they continue to have a large,
rather than a commanding, presence within the federal sentencing scheme, see e.g., Rita v. United States, 551 U.S. 338
(2007)(appellate courts may consider a sentence within the accurately identified Guideline range reasonable); Gall v.
United States, 552 U.S. 38, 49-51 (2007)(sentencing courts must begin by determining the appropriate Guideline range
for the case at hand and then consider the other sentencing factors identified in 18 U.S.C. 3553(a); they may not accept
a sentence within the Guideline range per se reasonable nor one outside that range per se unreasonable; appellate courts
are to review trial court sentences under a deferential abuse of discretion standard).
16
The Sentencing Commission did not think of its Guidelines as mandatory minimum provisions, Commission Report
I, 4 (footnote 3 of the Commission’s Report in brackets) (“‘Mandatory minimums,’ ‘mandatory minimum sentencing
provisions,’ and related terms refer to statutory provisions requiring the imposition of at least a specified minimum
sentence when criteria specified in the relevant statute have been met. [Consistent with the intent of the statutory
directive for this Report, only minimums required by statute are considered to be ‘mandatory minimums.’ Not included
in the definitions (and in fact contrasted with mandatory minimums in a later chapter of this Report) are sentences
required by the federal sentencing guidelines ... ]”). The Sentencing Guidelines, however, are promulgated pursuant to
statutory authority and before Booker often curtailed the authority of a sentencing court to impose a sentence that did
not include a term of imprisonment—upon conviction for violation of a statute which on its face is not a mandatory
minimum.
17
This is particularly so because the Guidelines impose constraints on the option of probation that make a sentence
other than incarceration more uncommon than was once the case: “Prior to the [Sentencing Reform Act], the prison to
probation ratio in federal criminal sentencing was about sixty to forty. Congress said nothing in the statute about
(continued...)
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Federal Mandatory Minimum Sentencing Statutes
History
Mandatory minimums have been with us from the beginning. In fact, the history of our criminal
sentencing practices is the story of increased reliance upon judicial or administrative discretion in
order to mute the law’s severity in individual cases,18 followed by increased limitations on such
discretion in order to curb the resulting arbitrary and discriminatory disparities in punishment.19 It
is a saga in which “competing theories of mandatory and discretionary sentencing have been in
varying degrees of ascendancy or decline.”20
Severity and a want of discretion marked the early criminal law. The sentence which followed a
felony conviction was death; except in rare instances no other punishment could be imposed.
Over time the courts were given some discretion over sentencing, but the choices were hardly
lenient; and corporal punishment and banishment were common.21
(...continued)
abolishing or even drastically curtailing probation.... The Commission, however, drafted guidelines containing a
presumptive sentence of imprisonment for every felony in the United States Code. Near the bottom of the scale of
crimes, it established several ranges in which a court could select either prison or probation.... The result is that the
incidence of probation since the guidelines has been cut by more than half (15.5%),” Freed, Federal Sentencing in the
Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers, 101 YALE LAW JOURNAL 1681, 1706-707
(1992). According to the most recent statistics, the current incidence of probation is 5.6% with an additional 3.0% of
offenders sentenced to some mix of confinement and probation, U.S. Sentencing Commission’s 2012 Sourcebook of
Federal Sentencing Statistics, Table 16, available at
http://www.ussc.gov/Research_and_Statistics/Annual_Reports_and _Sourcebooks/2012/Table16.pdf.
18
Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND (1765); Chitty, A PRACTICAL TREATISE ON CRIMINAL LAW
(3d Amer. ed. 1836); Stephen, HISTORY OF THE CRIMINAL LAW OF ENGLAND (1883); Rubin, THE LAW OF CRIMINAL
CORRECTION (2d ed. 1973).
19
Frankel, CRIMINAL SENTENCES: LAW WITHOUT ORDER (1973); Frankel, Lawlessness in Sentencing, 41 UNIVERSITY OF
CINCINNATI LAW REVIEW 1 (1972); O’Donnell, Churgin & Curtis, TOWARD A JUST AND EFFECTIVE SENTENCING
SYSTEM: AGENDA FOR LEGISLATIVE REFORM (1977); Stith & Cabranes, FEAR OF JUDGING (1998).
20
Harmelin v. Michigan, 501 U.S. 957, 999 (Kennedy, J. concurring).
21
Blackstone’s summary on the eve of the Revolutionary War marks the evolution of English sentencing law to that
point: “ ... [T]he court must pronounce that judgment, which the law hath annexed to the crime.... Of these some are
capital, which extend to the life of the offender, and consist generally in being hanged by the neck till dead; though in
very atrocious crimes other circumstances of terror, pain, or disgrace are superadded: as, in treasons of all kinds, being
drawn or dragged to the place of execution; in high treason affecting the king’s person or government, embowelling
alive, beheading, and quartering; and in murder, a public dissection. And, in case of any treason committed by a
female, the judgment is to be burned alive. But the humanity of the English nation has authorized, by a tacit consent, an
almost general mitigation of such part of these judgments as savour of torture or cruelty: a sledge or hurdle being
usually allowed to such traitors as are condemned to be drawn; and there being very few instances (and those accidental
or by negligence) of any person’s being embowelled or burned, till previously deprived of sensation by strangling.
Some punishments consist in exile or banishment, by abjuration of the realm, or transportation to the American
colonies; others in loss of liberty, by perpetual or temporary imprisonment. Some extent to confiscation, by forfeiture
of lands, or movables, or both, or of the profits of lands for life: others induce a disability, of holding offices or
employments, being heirs, executors, and the like. Some, though rarely, occasion a mutilation or dismembering, by
cutting off the hand or ears: others fix a lasting stigma on the offender by slitting the nostrils, or branding the hand or
face. Some are merely pecuniary, by stated or discretionary fines: and lastly there are others, that consist principally in
their ignominy, though most of them are mixed with some degree of corporal pain; and theses are inflicted chiefly for
crimes, which arise from indigence, or which render even opulence disgraceful. Such as whipping, hard labour in the
house of correction, the pillory, the stocks, and the ducking stool.” 4 Blackstone, COMMENTARIES ON THE LAWS OF
ENGLAND 369-70 (1769).
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Yet even early on there were efforts to ease the law’s severity. Both the accused and the convicted
could be pardoned at the King’s will.22 While Parliament regularly increased the number of
crimes, it often replaced common law capital offenses with statutory crimes defined as
misdemeanors or subject to the benefit of clergy. The result was the same in either case, a reduced
number of capital offenses.23 In our own country, state legislatures drastically curtailed the
number of capital offenses soon after the Revolution.24
When the first Congress assembled, it enacted several mandatory minimums, each of them a
capital offense.25 The 19th century, however, witnessed the appearance of a host of discretionary
schemes designed to ease the harshness of criminal law in individual cases. The courts could
suspend sentence and were vested with broad authority in the selection of those sentences they
chose to impose.26 Probation and parole were born and became prominent.27
By late in the century at the federal level, the number of mandatory capital offenses had been
reduced,28 and while the number of mandatory minimums had increased,29 most federal criminal
statutes merely established a maximum penalty and left to the discretion of the courts the
sentences to be imposed within the maximum. The 1909 federal criminal code revision eliminated
most mandatory minimums;30 soon thereafter federal prisoners were made eligible for parole after
22
ID. at 390; Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power From the King, 69 TEXAS LAW
REVIEW 569, 583-89 (1991).
23
Hall, THEFT, LAW AND SOCIETY, 114-32 (1952); Rubin, supra footnote 22 at 180.
24
1 Blumstein, Cohen, Martin & Tonry, RESEARCH ON SENTENCING: THE SEARCH FOR REFORM, 58 (1983); Rothman,
THE DISCOVERY OF THE ASYLUM: SOCIAL ORDER AND DISORDER IN THE NEW REPUBLIC, 61 (rev.ed. 1990).
25
The Act of April 30, 1790 declared that “persons ... adjudged guilty of treason against the United States ... shall
suffer death,” 1 Stat. 112; the same sentence awaited those who committed murder within the exclusive jurisdiction of
the United States, 1 Stat. 113, or engaged in piracy, 1 Stat. 113-14, or counterfeiting, 1 Stat. 115.
26
Rubin, THE LAW OF CRIMINAL CORRECTION, 180-84 (2d ed. 1973).
27
Zalman, The Rise and Fall of the Indeterminate Sentence, 24 WAYNE LAW REVIEW 45 (1977); Lindsay,
Indeterminate Sentence and Parole System, 16 JOURNAL OF CRIMINAL LAW & CRIMINOLOGY 9 (1925).
28
Even treason was made punishable by imprisonment at hard labor for not less than five years rather than by death, at
the discretion of the court, Rev.Stat. §5332; and the penalty for forgery or counterfeiting of U.S. securities was reduced
from death to imprisonment for not more than 15 years, Rev.Stat. §5414.
29
Mail robbery, for instance, became punishable by imprisonment at hard labor for not less than five years and not
more than ten years; by imprisonment for life for a 2d offense or if the custodian of the mail were wounded or his life
placed in jeopardy by the use of dangerous weapons, Rev.Stat. §5472.
30
As the Joint Committee on Revision of the Laws explained: “The committee has also adopted a uniform method of
fixing in all offenses not punishable by death the maximum punishment only, leaving the minimum to the discretion of
the trial judge.
“The criminal law necessarily subjects to its corrective discipline all who violate its provisions. The weak and the
vicious, the first offender and the atrocious criminal, the mere technical transgressor and the expert in crime are alike
guilty of the same offense. In the one case the utmost severity of punishment can scarcely provide the protection to
which society is entitled; in the other anything except as nominal punishment may effectually prevent the reclamation
of the offender.
“The argument most frequently urged against leaving the minimum punishments to the discretion of the trial judge is
that it affords parties convicted of crime of a heinous character an opportunity to obtain immunity because of the
weakness or dishonesty of judges. It has been well said by a distinguished authority upon this subject that—
Instances of the former are rare, and of the latter none is believed ever to have existed. The purity of our judiciary
is one of things which calumny has as yet left untouched.
“This recommendation will be found to be in accordance with the humane spirit of advanced criminal jurisprudence.
The early English statutes were proverbially cruel; the gravest crimes and the most trivial offenses alike invoked the
penalty of death. Our own crimes act of 1790 reflected this barbarous spirit and denounced the death penalty for
(continued...)
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service of a third of their sentences (after 15 years in the case of prisoners with life sentences);31
and federal courts shortly thereafter received the authority to suspend the imposition or execution
of sentence and impose probation.32 The 1948 federal criminal code revision took much the same
tack as its predecessor: it eliminated many, but not all, of the “not-less-than” mandatory
minimums and continued in place most of the “flat” sentence mandatory minimums.33
By mid-20th century, a well-respected commentator could observe that “[t]he individualization of
penal dispositions, principally through the institutions of the indeterminate sentence, probation,
and parole, is a development whose value few would contest.”34 The contest was joined soon
thereafter.35
Driven by concerns that broad discretion had led to rootless sentencing, unjustifiable in its
leniency in some instances and in its severity in others, legislative bodies moved to curtail
discretionary sentencing on several fronts. Determinate sentencing,36 sentencing commissions and
guidelines,37 and mandatory minimum sentences became more prevalent.38 Parole and probation
were abolished or greatly restricted in several jurisdictions.39
(...continued)
thirteen distinct offenses, but this spirit of vindictive retribution has entirely disappeared. We have abolished the
punishment of death in all except three cases—treason, murder, and rape—and have provided that even in these cases it
may be modified to imprisonment for life; and as humane judges in England availed themselves of the most technical
irregularities in pleadings and proceedings as an excuse for discharging prisoners from the cruel rigors of the common
law, so jurors here often refuse to convict for offenses attended with extenuating circumstances rather than submit the
offender to what in their judgment is the cruel requirement of a law demanding a minimum punishment,” S.Rep.No.10,
60th Cong., 1st Sess. 14 (1908).
31
Act of June 25, 1910, §1 36 Stat. 819, and Act of Jan. 23, 1913, 37 Stat. 650.
32
Act of March 4, 1925, 43 Stat. 1259.
33
“The minimum punishment provisions were omitted because of the court’s power, under 3651 of this title, to suspend
sentence whenever the crime or offense is not punishable by death or life imprisonment, and, also, to conform with
policy adopted by the codifiers of the 1909 Criminal Code,” H.R.Rep. 304, 80th Cong., 1st Sess. Reviser’s Notes A16
(1947).
34
Kadish, Legal Norm and Discretion in the Police and Sentencing Process, 75 HARVARD LAW REVIEW 904, 915
(1962).
35
Davis, DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY (1969); Packer, THE LIMITS OF THE CRIMINAL SANCTION
(1968); Frankel, CRIMINAL SENTENCES: LAW WITHOUT ORDER (1973).
36
A determinate sentence is a sentence for a fixed period of time, a flat sentence; an indeterminate sentence is one
whose duration is not specifically fixed but is determined by prison and/or parole authorities, BLACK’S LAW
DICTIONARY 1367 (7th ed. 1999); see generally, Indeterminate Sentencing: An Analysis of Sentencing in America, 70
SOUTHERN CALIFORNIA LAW REVIEW 1717 (1997); Gardner, The Determinate Sentencing Movement and The Eighth
Amendment: Excessive Punishment Before and After Rummel v. Estelle, 1980 DUKE LAW JOURNAL 1103, 1104-105; Do
Judicial “Scarlet Letters” Violate the Cruel and Unusual Punishments Clause of the Eighth Amendment?, 16
HASTINGS CONSTITUTIONAL LAW QUARTERLY 115, 118-19 (1988) (contrasting 7 indeterminate sentencing structure
states with 9 determinate sentence states).
37
Robinson, A Sentencing System for the 21st Century?, 66 TEXAS LAW REVIEW 1, 24-5 (1987). Sentencing guidelines
do not necessarily circumscribe judicial sentencing discretion; the guidelines may simply be advisory. Sentencing
Commissions and sentencing guidelines have become common, see e.g., Ala.Code §§12-25-1 to 12-25-12; Alaska Stat.
§12.55.125(c) to (e); Ark.Code Ann. §§16-90-801 to 16-90-804; Conn.Gen.Stat.Ann. §54-300; Del.Code Ann. tit.11,
§§6580 to 6581A; Fla.Stat. Ann. §§921.001 to 921.00265; Ill. Comp.Stat.Ann. ch.730, §§5/5-5-3.1, 5/5/-5-3.2;
Kan.Stat.Ann. §§21-6801 to 21-6828; La.Rev. Stat.Ann. §§15:321 to 15:324; Md.Crim.Pro. §§6-201 to 6-216;
Mass.Gen.Laws Ann. ch.211E, §§1-4; Mich.Comp.Laws Ann. ch. 777; Minn.Stat.Ann. ch.244 App.; Mo.Ann.Stat.
§558.019; N.C.Gen. Stat. §§15A-1340.13 to 1340.17; Ohio Rev. Code ann. §§181.21 to 181.56; Ore.Rev.Stat.
§§137.667 to 137.671; Pa.Stat.Ann. tit. 42, §§2151-2156; S.C. Code §§24-26-10 to 24-26-60; Tenn.Code Ann. §§4035-101 to 40-35-122; Utah Code Ann. §§63-25a-301 to 63-25a-306; Va.Code §§17.1-800 to 17.1-806, 19.2-298.01; Vt.
(continued...)
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The Sentencing Reform Act of 1984 brought this trend to the federal criminal justice system.40 It
repealed the authority of the federal courts to suspend criminal sentences.41 It abolished federal
parole.42 It created a sentencing guideline system, applicable within the statutory maximum and
minimum penalties established by Congress that tightly confined the sentencing discretion of
federal judges.43 The armed career criminal, three strikes, and several of the other prominent drug,
child pornography, and gun related mandatory minimums followed in the ensuing years.44
Substantial Assistance
Upon motion of the Government, the court shall have the authority to impose a sentence
below a level established by statute as a minimum sentence so as to reflect a defendant’s
substantial assistance in the investigation or prosecution of another person who has
committed an offense. Such sentence shall be imposed in accordance with the guidelines and
policy statements issued by the Sentencing Commission pursuant to section 994 of title 28,
45
United States Code.
This substantial assistance provision was enacted with little fanfare in the twilight of the 99th
Congress as part of the massive Anti-Drug Abuse Act of 1986, legislation which established or
increased a number of mandatory minimum sentencing provisions.46 The section passed between
(...continued)
Stat.Ann. tit. 13, §§5451-5452; Wash.Rev. Code Ann. §§9.94A.401 to 9.94A.702; Wis.Stat.Ann. §973.017.
38
Do Judicial “Scarlet Letters” Violate the Cruel and Unusual Punishments Clause of the Eighth Amendment, 16
HASTINGS CONSTITUTIONAL LAW QUARTERLY 115, 119 n.32 (1988) (listing 33 states with mandatory minimum
sentencing structures).
39
See e.g., Alaska Stat.§§12.55.125 to 12.55.185; Cal.Pen.Code §1170; Colo.Rev.Stat. §§16-11-304, 18-1-105;
Ind.Code Ann. §35-50-6-1; Minn.Stat.Ann. §244.05; N.M.Stat.Ann. §§31-18-15, 31-21-10. Note that some of the
jurisdictions that have abolished parole as a discretionary means of reducing an offender’s term of imprisonment
authorize “reentry parole” or terms of “supervised release” under which the offender is subject to supervision after
service of his or her full term of imprisonment.
40
The Sentence Reform Act is chapter II, 98 Stat. 1987, of the Comprehensive Crime Control Act of 1984, 98 Stat.
1976, enacted as title II of P.L. 98-473, 98 Stat. 1837 (1984).
41
18 U.S.C. 3651 (1982 ed.).
42
18 U.S.C. 4201 to 4218 (1982 ed.).
43
28 U.S.C. 991 to 998.
44
The mandatory minimum applicable when a firearm is used during the course of a federal crime of violence, 18
U.S.C. 924(c), originated in the same legislation as the Sentence Reform Act, P.L. 98-473, 98 Stat. 2138 (1984). The
armed career criminal provisions, 18 U.S.C. 924(e), first surfaced in the Firearms Owners Protection Act, P.L. 99-308,
100 Stat. 458 (1986); the mandatory minimums for drug trafficking, 21 U.S.C. 841(b), in the Anti-Drug Abuse Act of
1986, P.L. 99-570, 100 Stat. 3207-2; the mandatory minimums for crack possession, 21 U.S.C. 844, in the Anti-Drug
Abuse Act of 1988, P.L. 100-690, 102 Stat. 4370; the three strikes and child pornography provisions, 18 U.S.C.
3559(c) and 18 U.S.C. 2251-2252A, in the Violent Crime Control and Law Enforcement Act of 1994, P.L. 103-322,
108 Stat. 1982, 2037.
The drug kingpin mandatory minimum, 21 U.S.C. 848, enacted as part of the original Controlled Substances Act in
1970, P.L. 91-513, 84 Stat. 1265 (1970), and most of the mandatory minimums cited in the appendix predate their more
well-known fellows.
The safety valve feature of 18 U.S.C. 3553(f) available to nonviolent, first-time drug offenders and passed in 1994, P.L.
103-322, 108 Stat. 1985, might be seen as a break in the trend toward greater use of mandatory minimums even though
it does not enhance federal judicial sentencing discretion.
45
18 U.S.C. 3553(e).
46
Section 1007(a) of P.L. 99-570, 100 Stat. 32-07-7 (1986).
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the date authorizing the Sentencing Guidelines and the date they became effective. Rather than
replicate the language of section 3553(e), the Guidelines contain an overlapping section which
authorizes a sentencing court to depart from the minimum sentence called for by the Guidelines.47
Upon the Motion of the Government
As a general rule, a defendant is entitled to a sentence below an otherwise applicable statutory
minimum under the provisions of §3553(e) only if the government agrees.48 The courts have
acknowledged that due process or equal protection or other constitutional guarantees may provide
a narrow exception. “Thus, a defendant would be entitled to relief if a prosecutor refused to file a
substantial-assistance motion, say, because of the defendant’s race or religion.”49 A defendant is
entitled to relief if the Government’s refusal constitutes a breach of its plea agreement.50 A
defendant is also “entitled to relief if the prosecutor’s refusal to move was not rationally related to
any legitimate Government end.”51 Some courts have suggested that a defendant is entitled to
relief if the prosecution refuses to move under circumstances that “shock the conscience of the
court,” or that demonstrate bad faith, or for reasons unrelated to substantial assistance.52
A majority of the judges who answered the Sentencing Commission’s survey agreed that relief
under §3553(e) should be available even in the absence of motion from the prosecutor.53
A motion under §3553(e) for a sentence beneath the mandatory minimum and a motion under
U.S.S.G. §5K1.1 for a sentence beneath the applicable Sentencing Guideline range are not the
same. Thus, a motion under §5K1.1 will ordinarily not be construed as a motion under
§3553(e).54
47
U.S.S.G. §5K1.1; see also, F.R.Crim.P. 35(b) which authorizes a court to reduce the sentence it imposed upon the
defendant upon the government’s motion based on the defendant’s substantial assistance.
48
Melendez v. United States, 518 U.S. 120, 125-26 (1996)(“We believe that §3553(e) requires a government motion
requesting or authorizing the district court to impose a sentence below a level established by statute as a[a] minimum
sentence before the court may impose such a sentence”); United States v. Massey, 663 F.3d 852, 860 (6th Cir. 2011).
49
Wade v. United States, 504 U.S. 181, 186 (1992); United States v. Gomez, 705 F.3d 68, 79 (2d Cir. 2013).
50
United States v. Motley, 587 F.3d 1153, 1159 (D.C. Cir. 2009); United States v. Smith, 574 F.3d 521, 525 (8th Cir.
2009); United States v. Doe, 445 F.3d 202, 207 (2d Cir. 2006).
51
Wade v. United States, 504 at 186.
52
United States v. Freemont, 513 F.3d 884, 889 (8th Cir. 2008)(“The district court may review the government’s refusal
to make a motion in limited circumstances. First, the district court may review the government’s decision for an
unconstitutional motive.... Second, a district court can compel a §3553(e) motion if the government acknowledges the
defendant provided substantial assistance, but refuses to make a motion expressly because the defendant engaged in
unrelated misconduct – a reason unrelated to the quality of the defendant’s assistance.... Third, the district court may be
able to compel a motion if the government acted in bad faith by refusing to make a motion”); but see United States v.
Perez, 526 F.3d 1135, 1138 (8th Cir. 2008)(citing cases evidencing a split within the circuit over whether bad faith
provides a sufficient based to compel a government motion).
53
Survey, Question 15. Substantial Assistance. Only 35% of the respondents disagreed with the statement that
“Congress should amend 18 USC §3553(e) to authorize judges to sentence a defendant below the applicable statutory
mandatory minimum to reflect a defendant’s substantial assistance, even if the government does not make a motion,”
Id.
54
Melendez v. United States, 518 U.S. 120, 126 (1996).
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To Reflect a Defendant’s Substantial Assistance
Any sentence imposed below the statutory minimum by virtue of section 3553(e) must be based
on the extent of the defendant’s assistance; it may not reflect considerations unrelated to such
assistance.55 It has been suggested that a court may use the section 5K1.1 factors for that
determination, that is, “(1) the court’s evaluation of the significance and usefulness of the
defendant’s assistance, taking into consideration the government’s evaluation of the assistance
rendered; (2) the truthfulness, completeness, and reliability of any information or testimony
provided by the defendant; (3) the nature and extent of the defendant’s assistance; (4) any injury
suffered, or any danger or risk of injury to the defendant or his family resulting from his
assistance; [and] (5) the timeliness of the defendant’s assistance.”56
The substantial assistance exception makes possible convictions that might otherwise be
unattainable. Yet, it may also lead to “inverted sentencing,” that is, a situation in which “the more
serious the defendant’s crimes, the lower the sentence – because the greater his wrongs, the more
information and assistance he had to offer to a prosecutor”; while in contrast the exception is of
no avail to the peripheral offender who can provide no substantial assistance.57 Perhaps for this
reason, most of the judges who responded to the Sentencing Commission survey agreed that a
sentencing court should not be limited to assistance-related factors and should be allowed to use
the generally permissible sentencing factors when calculating a sentence under §3553(e).58
Mandatory Minimums and the Sentencing Guidelines
First Commission Report
Even though guidelines work to reduce judicial sentencing discretion and might once have been
characterized as creating a host of new members of the species of mandatory minimums, the notless-than mandatory minimums have been criticized as incompatible with the federal sentencing
55
United States v. Williams, 687 F.3d 283, 286 (6th Cir. 2012); United States v. Span, 682 F.3d 565, 566 (7th Cir. 2012);
United States v. Winebarger, 664 F.3d 388 (3d Cir. 2011)(“Congress’s chosen language explicitly indicates that the
reduction below the statutory minimum is to ‘reflect’ a defendant’s assistance to the government in investigating and
prosecuting other offenders. This language does not give a court carte blanche to sentence a defendant below a
statutory minimum sentence based on non-assistance-related factors once it is established that the defendant provided
assistance to the government”); United States v. Burns, 577 F.3d 887, 894 (8th Cir. 2009)(en banc)(“Where a court has
authority to sentence below a statutory minimum only by virtue of a government motion under §3553(e), the reduction
below the statutory minimum must be based exclusively on assistance-related considerations”); United States v.
Jackson, 577 F.3d 1032, 1036 (9th Cir. 2009); United States v. Hood, 556 F.3d 226, 234 n.2 (4th Cir. 2009), citing inter
alia United States v. Richardson, 521 F.3d 149, 159 (2d Cir. 2008) and United States v. Desselle, 450F.3d 179, 182 (5th
Cir. 2006).
56
U.S.S.G. §5K1.1(a); United States v. Gabbard, 586 F.3d 1046, 1051 (6th Cir. 2009), citing United States v.
Richardson, 521 F.3d at 159.
57
Hearing, Testimony of Jeffrey B. Steinback on behalf of the Practitioner’s Advisory Group at 8, quoting United
States v. Brigham, 977 F.2d 317, 318 (7th Cir. 1992); see also Hearing, Written Statement of Cynthia Hujar Orr,
President of the National Ass’n of Criminal Defense Lawyers at 3 (defendants “who have little or no information to
provide the government, end up with far more severe sentences than leaders of conspiracies who run the operations and
know the other participants”).
58
Survey, Question 15. Substantial Assistance. Only 24% of the respondents disagreed with the statement that “In
determining the extent of a reduction below the statutory mandatory minimum under 18 USC §3553(e) ... the court’s
consideration should not be limited to the nature of the defendant’s substantial assistance but also should include
consideration of the factors at 18 USC §3553(a),” Id.
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guidelines. Early on, perhaps most prominent among its critics was the Sentencing Commission
itself. Its 1991 report, after sketching the arguments traditionally offered in support of mandatory
minimums,59 observed that
•
only 4 of the 60 mandatory minimums were regularly prosecuted;60
•
mandatory minimums induce new sentencing disparities;61
•
due to plea bargaining, 35% of the defendants who might have been charged and
sentenced under mandatory minimums were not;62
59
“Retribution or ‘Just Desserts.’ Perhaps the most commonly-voiced goal of mandatory minimum penalties is the
‘justness’ of long prison terms for particular serious offenses.... Deterrence. By requiring the imposition of substantial
penalties for targeted offenses, mandatory minimums are intended both to discourage the individual sentenced ... from
further involvement in crime ... and, by example discourage other potential lawbreakers.... Incapacitation, Especially of
the Serious Offender. Mandating increased sentence severity aims to protect the public by incapacitating offenders....
Disparity. Indeterminate sentencing systems permit substantial latitude in setting the sentence, which in turn can mean
that defendants convicted of the same offense are sentenced to widely disparate sentences. Inducement of Cooperation.
Because they provide specific lengthy sentences, mandatory minimums encourage offenders to assist in the
investigation of criminal conduct by others [in order to take advantage of the escape hatch 18 U.S.C. 3553(e) supplies
to those who cooperate with authorities].... Inducement of Pleas ... [P]rosecutors express the view that mandatory
minimum sentences can be valuable tools in obtaining guilty pleas ... ” Commission Report 13-4.
60
Commission Report at ii, 11 (“four statutes account for approximately 94 percent of the cases ... 21 U.S.C. 841 [illicit
drug trafficking], 21 U.S.C. 844 [illicit drug possession], 21 U.S.C. 960 [drug smuggling], and 18 U.S.C. 924(c)[armed
career criminals]”).
61
Commission Report at ii. (“[The] lack of uniform application creates unwarranted disparity in sentencing and
compromises the potential for the guidelines sentencing system to reduce disparity”). But see, Stith & Cabranes, FEAR
OF JUDGING, 106 1998)(“Our analysis suggests four major conclusions: 1. Inter-judge sentence variation was not as
rampant or as ‘shameful’ in the federal courts under the pre-Guidelines regime as Congress apparently believed.... 2.
No thorough empirical study has demonstrated a reduction in the total amount of disparity under the Guidelines. 3.
While reduction of inter-judge disparity is a worthwhile goal ... it is a complex goal, and a myopic focus on this
objective can result in a system that too often ignores other, equally important goals of a just sentencing system.... 4.
Important sources of disparity remain in the Guidelines regime”); Farabee, Disparate Departures Under the Federal
Sentencing Guidelines: A Tale of Two Districts, 30 CONNECTICUT LAW REVIEW 569 (1998)(discussing sentencing
disparity under the guidelines between two adjacent federal court districts); Payne, Does Inter-Judge Disparity Really
Matter? An Analysis of the Effects of Sentencing Reforms in Three Federal District Courts, 17 INTERNATIONAL REVIEW
OF LAW AND ECONOMICS 337 (1997) (suggesting that inter-judge disparity exists the guidelines notwithstanding).
62
Commission Report I, iii (“Since the charging and plea negotiation processes are neither open to public review nor
generally reviewable by the courts, the honesty and truth in sentencing intended by the guidelines system is
compromised”). “There are two basic responses to this critique. First, prosecutors undoubtedly do, through charging
decisions and plea bargains, sometimes seek, or agree to, lower than the maximum possible sentences. They have
always done that. With respect to charging decisions, the Guidelines themselves do not even attempt to limit the
historical practice. Indeed, it is difficult to imagine a system which could eliminate prosecutorial charging discretion.
Nonetheless, the Justice Department recognized at the outset ... that unrestrained pre-indictment bargaining over
charges would undermine the Guidelines.... Therefore, it issued internal directives that prosecutors are to charge the
most serious readily provable offense consistent with the nature of the defendant’s conduct.... As for plea bargains after
indictment, the primary justification of the relevant conduct guideline is to ensure that prosecutors cannot manipulate
sentences by dismissing courts. As long as the judge knows all the facts, the precise charge of which a defendant is
convicted is usually of little consequence except to set the statutory maximum sentence.... Thus, in order to really
control sentences through plea bargaining, a prosecutor must be willing to hide facts from the court.... The truth is that
most prosecutors, most of the time, play the sentencing game straight down the middle. To achieve plea bargains, they
will give defendants the benefit of close class on the provability of certain facts, or on the applicability of certain
enhancements to the undoubted facts of a given case. But they will not lie and they will not conceal evidence. The
consequence is that prosecutors, too, have had their discretion restrained by the Guidelines,” Bowman, The Quality of
Mercy Must Be Restrained, and Other Lessons in Learning to Love the Federal, Sentencing Guidelines, 1996
WISCONSIN LAW REVIEW 679, 727-28.
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•
“disparate application of mandatory minimum sentences ... appears to be related
to race”;63
•
mandatory minimums lack the capacity to consider the range of aggravating and
mitigating circumstances that may attend the same offense and as a consequence
produce unwarranted sentencing uniformity;64
•
uneven application deprives mandatory minimums of their potential to deter;65
•
mandatory minimums breed disparity by transferring judicial discretion to the
prosecution;66
•
in contrast to the calibrated approach of the guidelines, mandatory minimums
create cliffs where minuscule factual differences can have enormous sentencing
consequences;67
63
Commission Report I, iii. The disparate impact of the federal sentencing practices, including mandatory minimums,
has been the subject to extensive debate; see e.g., Albonetti, The Effects of the “Safety Valve” Amendment on Length of
Imprisonment for Cocaine Trafficking/Manufacturing Offenders: Mitigating the Effects of Mandatory Minimum
Penalties and Offender’s Ethnicity, 87 IOWA LAW REVIEW 401 (2002); CRS Report 97-743, Federal Cocaine
Sentencing: Legal Issues, by (name redacted) (April 25, 2002);
A “Second Look” at Crack Cocaine Sentencing
Policies: One More Try for Federal Equal Protection, 34 AMERICAN CRIMINAL LAW REVIEW 1211 (1997); Sklansky,
Cocaine, Race, and Equal Protection, 47 STANFORD LAW REVIEW 1283 (1995).
64
Commission Report I, 26 (“Sentencing guidelines look to an array of indicators to determine offense seriousness,
including the offense of conviction, any relevant quantity determinant (e.g., the amount of drugs in a trafficking
offense, dollar loss in fraud offense), weapon use, victim injury or death, the defendant’s role in the offense, and
whether the defendant accepted responsibility for the offense or, on the other hand, obstructed justice. Mandatory
minimums, in contrast, typically look to only one (or sometimes two) measurements of offense seriousness.... Thus, for
example, whether the defendant was a peripheral participant or the drug ring’s kingpin, whether the defendant used a
weapon, whether the defendant accepted responsibility or, on the other hand, obstructed justice, have no bearing on the
mandatory minimum to which each defendant is exposed”). These arguments would seem to be most persuasive in the
case of flat sentence mandatory minimums; in other instances the range between the mandatory minimum and the
statutory maximum would seem to provide ample room for the type of distinctions just mentioned.
65
Commission Report I, iii (“While mandatory minimum sentences may increase severity, the data suggest that uneven
application may dramatically reduce certainty. The consequences of this bifurcated pattern is likely to thwart the
deterrent value of mandatory minimums”). Proponents might suggest that incapacitation and the prospect of minimal
punishment were always the principal objectives. Deterrence is at best challenging to judge; the fact that not all
possible cases receive mandatory minimum treatment is no reason to abandon incapacitation for those that are
ensnared; and the result is one more properly laid to the door of prosecutorial discretion than to mandatory minimums.
66
Commission Report I, iii (“Since the power to determine the charge of conviction rests exclusively with the
prosecution for 85 percent of the cases that do not proceed to trial, mandatory minimums transfer sentencing power
from the court to the prosecution. To the extent that prosecutorial discretion is exercised with preference to some and
not to others, and to the extent that some are convicted of conduct carrying a mandatory minimum penalty while others
who engage in the same or similar conduct are not so convicted, disparity is reintroduced”). This presumes that
unwarranted disparity existed before the guidelines, that the guidelines have reduced or eliminated it, and that
mandatory minimums returned it to the system—three propositions upon which there is no consensus. Even if one
accepts all three, the question remains whether disparity, produced by plea agreements that make possible the
conviction of other wrongdoers, is unwarranted or appropriately laid to the door of mandatory minimums.
67
Commission Report I, 29 (“The ‘Cliff’ Effect of Mandatory Minimums. Related to the proportionality problems
posed in mandatory minimums already described are the sharp differences in sentence between defendants who fall just
below the threshold of a mandatory minimum compared with those whose criminal conduct just meets the criteria of
the mandatory minimum penalty. Just as mandatory minimums fail to distinguish among defendants whose conduct and
prior records in fact differ markedly, they distinguish far too greatly among defendants who have committed offense
conduct of highly comparable seriousness”). Critics might suggest that such cliffs are natural, necessary, and frequently
occurring in the law (e.g., the age of majority, alcohol-blood levels, statutes of limitations) or that few cliffs are as high
as the one that stands between a crime committed the day before the effective date of the guidelines and one committed
the day after.
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•
the amendment process of the sentencing guidelines makes them perpetually selfcorrecting, while mandatory minimums are single-shot efforts at crime control;68
and
•
the most efficient and effective way for Congress to exercise its powers to direct
sentencing policy is through the established process of sentencing guidelines,
permitting the sophistication of the guidelines structure to work, rather than
through mandatory minimums.69
The Commission’s initial report was quickly followed by a Department of Justice study that
concluded that a substantial number of those sentenced under federal mandatory minimums were
nonviolent, first-time, lower level drug offenders.70
Congress responded with the safety valve provisions of 18 U.S.C. 3553(f) under which the court
may disregard various drug mandatory minimums and sentence an offender within the applicable
sentencing guideline range as long as the offender was a low level, nonviolent participant with no
prior criminal record who has cooperated fully with the government.
Second Commission Report
A number of things changed between the first and second Commission reports. Sentencing under
the Guidelines had only been in place for a relatively short period of time when the first report
was written. The number of defendants sentenced by federal courts is now almost three times the
number sentenced under the Guidelines when the Commission wrote its first report.71 In the years
since, Congress has muted the impact of some mandatory minimums with the safety valve and the
Fair Sentencing Act, but it has also added new crimes and increased the penalties for old crimes.72
Occasionally, that meant new mandatory minimums or increases in old mandatory minimums.73
The judicial landscape has changed as well. When the Commission issued its first report the
Guidelines were largely binding upon sentencing judges.74 After the Supreme Court’s Booker
decision and its progeny, they are largely advisory.75 Finally, in the ensuing years the public
68
Commission Report I, iv. Critics might note that the perpetual need for self-correction neither inspires great
confidence nor dilutes the prospect of disparity.
69
Commission Report I, iv.
70
United States Department of Justice: An Analysis of Non-Violent Drug Offenders with Minimal Criminal Histories,
reprinted in, 54 CRIMINAL LAW REPORTER 2101 (1994).
71
Commission Report II, 66 (“The total number of federal cases has almost tripled from 29,011 in fiscal year 1990 to
83, 947 in fiscal year 2010”); see also, Commission Report I, 51 (noting that 29,011 defendants were sentenced under
the Guidelines in fiscal year 1990).
72
Commission Report II, 64 (“In the period from 1992 through 1994, Congress created federal criminal statues
penalizing failure to pay child support, carjacking, and domestic violence, and expanded the Hobbs Act to include
robbery. In 1996, Congress added laws punishing drug-induced rape and church arsons. In 1998, Congress enacted new
laws punishing sexual abuse of children, identity theft, telemarketing fraud, and the theft of cellular phone service”).
73
E.g., P.L. 103-322, §§140006 (mandatory minimum for employing a child to traffic certain controlled substances),
180201 (increasing the mandatory minimum for drug trafficking at a truck stop)(1994), now 21 U.S.C. 861, 849,
respectively.
74
18 U.S.C. 3553(b)(1)(“ ... [T]the court shall impose a sentence of the kind, and within the range, [dictated by the
Sentencing Guidelines,] unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or
to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that
should result in a sentence different from that described”).
75
In United States v. Booker, 543 U.S. 220 (2005), the Court held that Sixth Amendment right to jury trial precluded
(continued...)
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policy debate over mandatory minimum sentences has continued before the Commission, before
Congress, and in academic circles. The Commission’s second report summarizes views of those
who favor mandatory minimums and those who oppose them. Proponents contend that mandatory
minimum sentences:
•
promote sentencing uniformity and prevent sentencing disparity;76
•
afford greater public protection through certain punishment, deterrence, and
incapacitation;77
•
inflict just desserts;78
•
induce plea bargains and offender cooperation and thus contribute to law
enforcement efficiency;79 and
•
assist state and local law enforcement efforts.80
Opponents, on the other hand, contend that mandatory minimum sentences:
•
contribute to both excessive uniformity and unwarranted disparity;81
•
result in disproportionate and excessively severe sentences;82
(...continued)
mandatory application of the Guidelines, but permitted their discretionary application. Thereafter, it explained that “a
district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.... [T]he
district judge should then consider all of the §3553(a) factors to determine whether they support the sentence requested
by a party,” United States v. Gall, 552 U.S. 38, 49-50 (2007). Thereafter, ‘the appellate court must review the sentence
under the abuse of discretion standard. It must first ensure that the district court committed no significant procedural
error, such as failing to calculate (improperly calculating) the Guidelines range ... ” id. at 51.
76
Commission Report II, 85-6 (“Indeed, Congress enacted many mandatory minimum penalties, together with the thenmandatory guidelines system, as part of its effort in the 1980s to narrow judicial sentencing discretion and curb what it
viewed as unduly disparate and lenient sentences.... The Department of Justice has observed that sentencing disparities
have increased under the advisory guidelines system because for offenses for which there are no mandatory minimums,
sentencing decisions have become largely unconstrained as a matter of law.... After Booker, some prosecutors have
charged offenses carrying mandatory minimum penalties in order to narrow the sentencing court’s discretion”).
77
Id. at 87 (“According to the Department of Justice, sentencing reforms in the 1980’s, including the enactment and
enhancement of many mandatory minimum penalties, helped reduce crime rates. Some prosecutors and police officers
report that the certainty of punishment provided by mandatory minimum penalties is critical to law enforcement efforts.
Furthermore, some scholars believe that the severity of mandatory minimum penalties increases their deterrent effect
by raising the costs of committing crime to would-be offenders”).
78
Id. at 88 (“Congressman Asa Hutchinson argued that the strongest justification for mandatory minimum penalties is
that they give society the means of expressing its outrage toward certain offenses that are so harmful to the public”).
79
Id. at 89 (“Many in the law enforcement community view mandatory minimum penalties as an important
investigative tool. The threat of a mandatory minimum penalty gives law enforcement leverage over defendants....
[T]he Department of Justice views mandatory minimum penalties as an essential and critical tool in obtaining
cooperation from members of violent street gangs and drug distribution networks”).
80
Id. (The Department of Justice contends “that because of the substantial concurrent state and federal jurisdiction in
many drug and firearm cases, if a state sentence for one of these crimes is inappropriately low, the existence of a
substantially higher, federal mandatory minimum ensures a sentence that protects the public”).
81
Id. at 90-1 (“In the American Bar Association’s view, treating unlike offenders identically is as much a blow to
rational sentencing policy as is treating similar offenders differently. Many believe that mandatory minimum penalties
result in arbitrary and disparate sentences because they rely on certain specified triggering facts to the exclusion of all
others.... A majority of judges believe that mandatory minimum penalties contribute to sentencing disparity. In a 2010
Commission survey of United States District Judges on a range of sentencing issues, 52 percent of judges ranked
mandatory minimum penalties among the top three factors contributing to sentencing disparity”).
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•
fail to account for individualized circumstances;83
•
transfer sentencing discretion from judges to prosecutors;84
•
constitute neither a deterrent nor an effective law enforcement tool;85
•
interfere with state law enforcement efforts;86 and
•
adversely impact various demographic groups.87
It omits as did the first Commission report at least one argument for mandatory minimums.
During the Commission’s first decade and a half of operation before Booker, the Commission
created its own system of mandatory minimum penalties. The Guidelines denied judges
sentencing discretion. Imprisonment was mandatory by operation of the Guidelines in the vast
majority of cases. True, it occurred by operation of the exercise of a delegation of Congress’s
legislative authority rather than by direct exercise. Yet the result was same, a mandatory
minimum term of imprisonment. The Guideline system was more nuanced, but that is a difference
of degree not of kind.
Finally, the most obvious difference between the first and second Commission reports is focus. To
an extent the Commission could not provide in its infancy, the second report describes, analyzes,
(...continued)
82
Id. at 93-4 (“The Department of Justice has stated that there are real and significant excesses in terms of the
imprisonment meted out for some offenders under existing mandatory sentencing laws, especially for some non-violent
offenders. The Department of Justice explained that mandatory minimum sentencing statutes ... apply to a significant
array of serious crimes; and they also, by and large, mandate very severe imprisonment terms. This, in turn, has
produced exponential growth in the federal prison population ... and the federal Bureau of Prison[s’] overcapacity has
real and detrimental consequences.... For this reason, the Department of Justice suggests some reforms of existing
mandatory minimum sentencing statutes are needed ... to eliminate excessive severity in current statutory sentencing
laws and to help address the unsustainable growth in the federal prison population”).
83
Id. at 95 (“[T]he Judicial Conference has long urged Congress to reconsider the wisdom of mandatory minimum
penalties because they block judges from considering the individual circumstances of particular cases. Because
mandatory minimum penalties may prevent a judge form considering all (or even most) of the pertinent facts and
circumstances of the case (such as offender characteristics), the resulting sentence may be unfair or irrational”).
84
Id. at 96-7 (“Mandatory minimums effectively transfer sentencing authority from trial judge to federal prosecutions
who may pre-set punishment through creative investigative and charging practices, producing troubling punishment
differentials among offenders with similar culpability.... Justice Anthony Kennedy has observed that even though a
prosecutor may act in good faith, the trial judge is the one actor in the system most experienced with exercising
discretion in a transparent, open and reasoned way. In the Commission’s 2010 survey of judges, 66 percent of
respondents ranked charging decisions among the top three factors contributing to sentencing disparities”).
85
Id. at 98-9 (“Some scholars ... note that the research conducted by social scientists and public policy analysts has
found little evidence to support the argument that mandatory minimums prevent crime.... The American Bar
Association has raised a threshold question of whether inducing cooperation is a legitimate sentencing goal. Beyond
that threshold question, many observe that the exchange of reduced sentences for information results in ‘inverted
sentencing,’ in which offenders with valuable information – kingpins, organizers, and other highly culpable defendants
– can avoid mandatory minimum penalties through charge-bargaining and substantial assistance motions while lowlevel offenders cannot because they lack such valuable information”).
86
Id. at 100 (“The late Chief Justice Rehnquist noted that mandatory minimum penalties fueled the trend toward
federalizing crimes because law enforcement elects to pursue charges in federal rather than state courts because of the
severe mandatory minimum penalties available under federal law”).
87
Id. at 101 (“Some express concerns that mandatory minimum penalties unfairly impact racial minorities and the
economically disadvantaged. This may be attributable in part to the fact that the most frequently applied mandatory
minimum penalties are for drug offenses, which according to some disproportionately impacts certain racial or ethnic
groups”).
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and makes recommendations relating to the four major groups of federal mandatory minimum
sentencing statutes: those involving drug crimes, gun crimes, sex crimes, and identity theft
crimes.
Constitutional Boundaries
Defendants sentenced to mandatory minimum terms of imprisonment have challenged them on a
number of constitutional grounds beginning with Congress’s legislative authority and ranging
from cruel and unusual punishment through ex post facto and double jeopardy to equal protection
and due process. Each constitutional provision defines outer boundaries that a mandatory
minimum must be crafted to honor; none confine legislative prerogatives in any substantial way.
Legislative Authority
The federal government is a creature of the Constitution.88 It enjoys only such powers as can be
traced to the Constitution. All other powers are reserved to the states or to the people.89 Among
the powers which the Constitution bestows upon Congress are the powers to define and punish
felonies committed upon the high seas, to exercise exclusive legislative authority over certain
federal territories and facilities, to make rules governing the Armed Forces, to regulate interstate
and foreign commerce, and to enact legislation necessary and proper for the execution of those
and other constitutionally granted powers.90 It also grants Congress authority to enact legislation
“necessary and proper” to the execution of those powers which it vests in Congress or in any
officer or department of the federal government.91
Many of the federal laws with mandatory minimum sentencing requirements were enacted
pursuant to Congress’s legislative authority over crimes occurring on the high seas or within
federal enclaves,92 or to its power to regulate commerce.93 When a statute falls for want of
legislative authority, the penalties it would impose fall with it. This has yet to occur in the area of
mandatory minimum sentences.
Commerce Clause
“The Congress shall have Power ... To regulate Commerce with Foreign Nations, and among the
several States, and with Indian Tribes.”94 This clause vests Congress with authority to regulate
88
United States v. Lopez, 514 U.S. 549 (1995).
U.S. Const. Amend. X.
90
U.S. Const. Art. I, §8, cls.10, 17, 14, 3, and 18, respectively.
91
U.S. Const. Art. I, §8, cl.18; see generally United States v. Comstock, 130 S.Ct. 1949 (2010).
92
E.g., 18 U.S.C. 2241(a)(“Whoever, in the special maritime and territorial jurisdiction of the United States ... knowing
causes another person to engage in a sexual act – (1) by using force against that other person ... shall be ... imprisoned
for any term of years or life ... ”).
93
E.g., 18 U.S.C. 2251(a), (e)(“(a) Any person ... who transports any minor in or affecting interstate or foreign
commerce ... with the intent that such minor engage in any sexually explicit conduct for the purpose of producing any
visual depiction of such conduct.... (e) Any individual who violates ... this section shall be ... imprisoned not less than
15 years ... ”).
94
U.S. Const. Art. I, §8, cl. 3.
89
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three broad categories of interstate commerce. In the words of United States v. Lopez, “[f]irst,
Congress may regulate the use of the channels of interstate commerce.... Second, Congress is
empowered to regulate and protect the instrumentalities of interstate commerce, or persons or
things in interstate commerce, even though the threat may come only from intrastate activities....
Finally, Congress’ commerce authority includes the power to regulate those activities having a
substantial relation to interstate commerce.”95 The Court then proceeded to conclude that the
clause did not authorize Congress to enact a particular statute which purported to outlaw
possession of a firearm on school property. Since the statute addressed neither the channels nor
instrumentalities of interstate commerce, its survival turned upon whether it came within
Congress’s power to regulate activities that have a substantial impact on interstate commerce.96
Here, the statute was found wanting. “[B]y its terms” it had “nothing to do with commerce or any
sort of economic enterprise.”97 It “contain[ed] no jurisdictional element which would ensure,
through case-by-case inquiry, that the firearm possession in question affect[ed] interstate
commerce.”98 Its impact on commerce was so remote that to credit it would envision a virtually
boundless power and one reserved to the states, the Court felt.99
A few years later, the Court reiterated “that Congress may [not] regulate noneconomic, violent
criminal conduct based solely on that conduct’s aggregate effect on interstate commerce. The
Constitution requires a distinction between what is truly national and what is truly local.”100 Yet
purely intrastate activities may have a sufficient impact on interstate commerce to bring them
within the reach of Congress’s Commerce Clause power. So it is in the case of the Controlled
Substances Act where several mandatory minimums are found. The Court concluded in Gonzales
v. Raich that:
Given the enforcement difficulties that attend distinguishing between marijuana cultivated
locally and marijuana grown elsewhere and concerns about diversion into illicit channels, we
have no difficulty concluding that Congress had a rational basis for believing that failure to
regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in
the CSA. Thus ... when it enacted comprehensive legislation to regulate the interstate market
in a fungible commodity, Congress was acting well within its authority to ‘make all Laws
which shall be necessary and proper’ to ‘regulate Commerce ... among the several States.’
That the regulation ensnares some purely intrastate activity is of no moment.”101
95
United States v. Lopez, 514 U.S. 549, 558-59 (1995).
Id. at 559.
97
Id. at 561.
98
Id.
99
Id. at 563-64 (“The Government argues that possession of a firearm in a school zone may result in violent crime and
that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of
violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the
population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are
perceived to be unsafe. The Government also argues that the presence of guns in schools poses a substantial threat to
the educational process by threatening the learning environment. A handicapped educational process, in turn, will result
in a less productive citizenry. That, in turn, would have an adverse effect on the Nation’s economic well-being.... Thus,
if we were to accept the Government’s arguments, we are hard pressed to posit any activity by an individual that
Congress is without power to regulate ”); id. at 567 (“To uphold the Government’s contentions here, we would have to
pile inference on inference in a manner that would bid fair to convert congressional authority under the Commerce
Clause to a general police power of the sort retained by the States”).
100
United States v. Morrison, 529 U.S. 598, 671-18 (2000).
101
545 U.S. 1, 22 (2005)(internal citations omitted).
96
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Necessary and Proper
“The Congress shall have Power ... To make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in
the Government of the United States, or in any Department or Officer thereof.”102 It has never
been thought that the Necessary and Proper Clause empowers only those laws that are absolutely
necessary. Instead, “[l]et the end be legitimate, let it be within the scope of the constitution, and
all means which are appropriate, which are plainly adapted to that end, which are not prohibited,
but consist[ent] with the letter and spirit of the constitution, are constitutional.”103 Thus, the
Necessary and Proper Clause makes possible those statutes that are rationally related to the
implementation of another constitutional power.104
The Court in Comstock provided a hint of the scope of Necessary and Proper Clause.105 The
statute there authorized the Attorney General to continue to hold a federal inmate, pending a civil
commitment determination, after his scheduled date of release.106 The Court analyzed the breadth
of the power without any explicit reference to any other constitutional power, deciding that:
[T]he statute is a “necessary and proper” means of exercising the federal authority that
permits Congress to create federal criminal laws, to punish their violation, to imprison
violators, to provide appropriately for those imprisoned, and to maintain the security of those
who are not imprisoned but who may be affected by the imprisonment of others.107
Treaty Power
The Constitution grants the President authority to negotiate treaties and the Senate the authority to
approve them in the exercise of its advice and consent prerogatives.108 Almost a century ago, the
Court observed that “[i]f the treaty is valid there can be no dispute about the validity of the statute
under Article I, §8, as a necessary and proper means to execute the powers of the Government.”
The Controlled Substances Act, the home of several mandatory minimums, might be considered
implementation of various treaties of the United States relating to controlled substances.109
Territorial and Maritime
Congress enjoys legislative authority over felonies on the high seas,110 over matters occurring
within the territorial jurisdiction of the United States,111 and incident to the maritime jurisdiction
102
U.S. Const. Art. I, §8, cl. 18.
McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 421 (1819).
104
Sabri v. United States, 541 U.S. 600, 605 (2004)(“McCulloch v. Maryland ... establish[es] review for means-ends
rationality under the Necessary and Proper Clause”).
105
United States v. Comstock, 130 S.Ct. 1949 (2010).
106
18 U.S.C. 4248.
107
United States v. Comstock, 130 S.Ct. at 1965.
108
U.S. Const. Art. II, §2, c. 2.
109
E.g., SINGLE CONVENTION ON NARCOTIC DRUGS, Mar. 30, 1961, 18 U.S.T. 1407, 520 U.N.T.S. 204; CONVENTION ON
PSYCHOTROPIC SUBSTANCES, Feb. 21, 1971, 32 U.S.T. 543, 1019 U.N.T.S. 175.
110
U.S. Const. Art. I, §8, cl. 10.
111
U.S. Const. Art. I, §8, cl. 17.
103
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of the federal courts.112 It has exercised the authority frequently to enact criminal laws applicable
within the territorial and special maritime jurisdiction of the United States. Some of these
provisions include mandatory minimums.113
Cruel and Unusual Punishment
Mandatory minimums implicate considerations under the Eighth Amendment’s cruel and unusual
punishments clause.114 The clause bars mandatory capital punishment statutes,115 and mandatory
imposition on a juvenile of life imprisonment without the possibility of parole.116 Although the
case law is somewhat uncertain, it seems to condemn punishment that is “grossly
disproportionate” to the misconduct for which it is imposed,117 a standard which a sentence
imposed under a mandatory minimum statute may breach under extreme circumstances.
Proportionality
During the first century of its existence, there was little recourse to the Amendment’s
protection,118 and the early cases involved its proscriptions against particular kinds of punishment
rather than of punishments of a particular degree of severity.119 In O’Neil v. Vermont, however,
three dissenting justices expressed the view that the cruel and unusual punishments clause’s
prohibitions extended to “all punishments which by their excessive length or severity are greatly
disproportionate to the offences charged.”120
The views of the O’Neil dissenters gained further credence after they were quoted by the Court in
Weems v. United States, when it invalidated a territorial sentencing scheme which it found both
disproportionate in degree and cruel in nature.121
112
U.S. Const. Art. III, §2; Art. I, §8, cl. 18.
E.g., 18 U.S.C. 2241(c), 2242.
114
The Eighth Amendment to the United States Constitution states in its entirety, “[e]xcessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
115
Woodson v. North Carolina, 428 U.S. 280, 305-306 (1976); see also, Miller v. Alabama, 132 S.Ct. 2455, 2463
(2012).
116
Miller v. Alabama, 132 S.Ct. at 2475 (2012).
117
Ewing v. California, 538 U.S. 11, 31-2 (2003).
118
In Pervear v. Massachusetts, 72 U.S. (5 Wall.) 475 (1866), the Court held that the clause applied to the federal
government and not the states; the first substantive cruel and unusual punishment case apparently did not arrive before
the Supreme Court until Wilkerson v. Utah, 99 U.S. 130 (1878), Mulligan, Cruel and Unusual Punishment: The
Proportionality Rule, 47 FORDHAM LAW REVIEW 639, 642 (1979).
119
See, Wilkerson v. Utah, 99 U.S. 130 (1878) (challenging execution of the death penalty by firing squad); In re
Kemmler, 136 U.S. 436 (1889) (challenging execution of the death penalty by electrocution).
120
144 U.S. 323, 339-40 (1892) (Field, J.)(dissenting); see also, 144 U.S. at 371 (Harlan with Brewer, JJ.)(dissenting)
(“The judgment before us by which the defendant is confined at hard labor ... for the term of ... fifty-four years ...
inflicts punishment, which, in view of the character of the offences committed must be deemed cruel and unusual”).
O’Neil, a mail order liquor dealer licensed in New York, was convicted for filling mail orders sent to Vermont where
he had no license. The majority opinion disposed of the case on jurisdictional grounds and did not reach the Eighth
Amendment question.
121
217 U.S. 349, 371 (1910). Weems was convicted of falsifying public documents for which he was sentenced to 15
years’ imprisonment and “accessories” which meant that while imprisoned he would “carry a chain at the ankle,
hanging from the wrists, ... [would] be employed at hard and painful labor, and receive no assistance whatsoever from
without the institution” and that after release he would forever continue under a form of civil death during which he
(continued...)
113
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Perhaps because of the unusual nature of the penalties involved, the proportionality doctrine
suggested in Weems lay dormant for over 60 years.122 It reappeared in the capital punishment
cases following Furman v. Georgia.123
When the capital punishment statutes enacted in response to Furman came before the Court, one
of the threshold questions was whether capital punishment was a per se violation of the cruel and
unusual punishments clause. For a plurality of the Court, that question could only be answered by
determining whether capital punishment was necessarily “grossly out of proportion to the severity
of [any] crime.”124 In the case of murder, “when a life has been taken deliberately by the offender,
[the Court could not] say that the punishment is invariably disproportionate to the crime.”125
In Coker v. Georgia, a plurality of the Court found “that death is indeed a disproportionate
penalty for the crime of raping an adult woman.”126 It did so after considering the general
repudiation of the death penalty in such cases by the legislatures of other jurisdictions; the
infrequency with which juries in Georgia had been willing to impose the death penalty for rape of
an adult woman; and the comparative severity Georgia used to punish other equally or more
serious crimes. The Court employed much the same method of analysis in later capital
punishment cases which raised the proportionality doctrine.127
Initial efforts to carry the proportionality doctrine to noncapital cases proved unsuccessful.
Shortly after Coker, a petitioner, convicted under a recidivist statute which called for an
automatic life sentence upon a third felony conviction, sought to persuade the Court that the
(...continued)
could not vote or hold public office or receive a pension, could not hold or dispose of property, and would be subject to
lifelong probation. 217 U.S. at 364.
The Court pointed out that the sentence was more severe than might be imposed for some degrees of homicide, for
misprision of treason, inciting rebellion, conspiracy to destroy the government, robbery, larceny, or forgery. 217 U.S. at
380.
From the Court’s perspective the legislation establishing the sentencing scheme had “no fellow in American
legislation.... It is cruel in its excess of imprisonment and that which accompanies and follows imprisonment. It is
unusual in its character. Its punishments come under the condemnation of the bill of rights, both on account of their
degree and kind.” 217 U.S. at 377.
122
There are a few cases in the interim in which the Court may have applied the proportionality doctrine, sub silentio,
because it found no infirmity in the sentences challenged, see e.g., Graham v. West Virginia, 224 U.S. 616 (1912);
Badders v. United States, 240 U.S. 391 (1916). Statements in Trop that might be thought to confirm the doctrine’s
existence are dicta suggesting the Court’s awareness, although not necessarily its endorsement, of the doctrine, Trop v.
Dulles, 356 U.S. 86, 99-100 (1958) (“Since wartime desertion is punishable by death, there can be no argument that the
penalty of denationalization is excessive in relation to the gravity of the crime.... Fines, imprisonment and even
execution may be imposed depending upon the enormity of the crime.”).
123
408 U.S. 238 (1972). In Furman, the Court found that the Eighth Amendment’s cruel and unusual punishments
clause, made binding upon the states by the due process clause of the Fourteenth Amendment, precluded imposition of
the death penalty at the unguided discretion of the judge or jury.
124
Gregg v. Georgia, 428 U.S. 153, 173 (1976).
125
Id. at 187.
126
433 U.S. 583, 597 (1977).
127
In Enmund v. Florida, 458 U.S. 782 (1982), the Court held that the death penalty was a disproportionate punishment
for a felony murder in which the defendant neither killed nor intended to kill and whose culpability was limited to
participation in the predicate felony. On the other hand, defendants who were major participants in the predicate felony
and who acted with at least reckless indifference to the risk to human life thereby created might be sentenced to death
without breaching the proportionality doctrine, Tison v. Arizona, 481 U.S. 137 (1982). In both instances, the Court
examined the practices in other jurisdictions and the seriousness of the defendant’s conduct.
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Eighth Amendment precluded such a sentence based upon a comparative analysis of the severity
of the treatment of recidivism in other jurisdictions, Rummel v. Estelle.128 The majority of the
Court was not persuaded. The proportionality doctrine had only been employed in capital
punishment cases and Weems, it noted. Both involved punishments, different in nature, from those
in Rummel.129
Moreover, the petitioner had failed to convincingly establish any objective criteria to evidence
gross disproportionality. Without some objectively identifiable “bright light” marking
disproportionality, the Court feared application of the proportionality doctrine would constitute
subjective policy making, a task more appropriately left to the legislative bodies.130
Any thoughts that the proportionality doctrine might have been abandoned were dashed almost
immediately by Solem v. Helm.131 Solem declared that imposition of a mandatory term of life
imprisonment under a state recidivist statute constituted cruel and unusual punishment. The
“objective criteria” which guided a proportionality analysis included, “(i) the gravity of the
offense and the harshness of the penalty; (ii) the sentences imposed on the other criminals in the
same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other
jurisdictions.”132
Individualized consideration. Consideration of the defendant’s unique circumstances is one of the
foundations of the Court’s Eighth Amendment jurisprudence in capital punishment cases. Furman
found that the Eighth Amendment’s cruel and unusual punishments clause, made binding upon
the states by the due process clause of the Fourteenth Amendment, precluded imposition of the
death penalty at the unguided discretion of the judge or jury.
The states initially travelled one of two paths to avoid the problems of unguided discretion
identified in Furman. Some eliminated discretion; others provided guidance. The second
approach passed constitutional muster, Gregg v. Georgia.133 The first did not, Woodson v. North
128
445 U.S. 263 (1980).
Id. at 272-74.
130
Id. at 275. See also, Hutto v. Davis, 454 U.S. 370, 372-73 (1982), which summarized Rummel as follows: “Like the
respondent in this case, Rummel argued that the length of his imprisonment was so ‘grossly disproportionate’ to the
crime for which he was sentenced that it violated the ban on cruel and unusual punishment of the Eighth and Fourteenth
Amendments. In rejecting that argument, we distinguished between punishments – such as the death penalty – which
by their very nature differ from all other forms of conventionally accepted punishments, and punishments which differ
from others only in duration. This distinction was based upon two factors. First, this ‘Court’s Eighth Amendment
judgments should neither be nor appear to be merely the subjective views of individual Justices.’ And second, the
excessiveness of one prison term as compared to another is invariably a subjective determination, there being no clear
way to make ‘any constitutional distinction between one term of years and a shorter or longer term of years.’ Thus, we
concluded that ‘one could argue without fear of contradiction by any decision of this Court that for crimes concededly
classified and classifiable as felonies, ... the length of the sentence actually imposed is purely a matter of legislative
prerogative.’ Accordingly, we held that Rummel’s life sentence did not violate the constitutional ban on cruel and
unusual punishment.”
131
463 U.S. 277 (1983).
132
Id. at 292. Rummel with prior two nonviolent felony convictions was sentenced to life imprisonment for obtaining
$120 under false pretenses. Helms, the Solem defendant with six prior nonviolent felony convictions was sentenced to
life imprisonment for uttering a $100 “no account” check. The Court distinguished Solem from Rummel on at least two
grounds. Solem was ineligible for parole, while Rummel enjoyed the advantage of a fairly liberal early release scheme;
in Solem the life sentence without possibility of parole was imposed as a matter of judicial discretion, while the life
sentence in Rummel was required as a matter of legislative policy, id. at 300-303.
133
428 U.S. 153 (1976).
129
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Carolina.134 Mandatory capital punishment offended the Eighth Amendment on three grounds, it
was said in Woodson. It was contrary to the evolving standards of decency which mark the
threshold of the Amendment’s protection.135 It failed to address the objections of Furman to
imposition of the death penalty at the unguided discretion of the judge or jury.136 And it failed to
permit consideration of individual characteristics of the crime and offender:
A process that accords no significance to relevant facets of the character and record of the
individual offender or the circumstances of the particular offense excludes from
consideration in fixing the ultimate punishment of death the possibility of compassionate or
mitigating factors stemming from the diverse frailties of humankind. It treats all persons
convicted of a designated offense not as uniquely individual human beings, but as members
of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of
death....
Consideration of both the offender and the offense in order to arrive at a just and appropriate
sentence has been viewed as a progressive and humanizing development. While the
prevailing practice of individualizing sentencing determinations generally reflects simply
enlightened policy rather than a constitutional imperative, we believe that in capital cases the
fundamental respect for humanity underlying the Eighth Amendment, requires consideration
of the character and record of the individual offender and the circumstances of the particular
offense as a constitutionally indispensable part of the process of inflicting the penalty of
death. 428 U.S. at 304 (citations omitted).137
The Court regularly and consistently recognized the individual considerations requirement in
subsequent capital punishment cases.138 Although the language cited above and other dicta139
would seem to apply with similar force in noncapital cases, the Court emphasized that the
doctrine was limited to capital cases.140 The gravity of the offense appears to be the most critical
factor in non-capital cases, but the seriousness of the offense may be judged at least in part by the
record and other circumstances of the individual who committed it.
134
428 U.S. 280, 305-306 (1976).
135
Id at 288-301.
Id. at 302.
137
Woodson’s rejection of mandatory capital punishment seemed to lose none of its force because two members of the
five justice majority considered all capital punishment—discretionary or mandatory, guided or unguided—contrary to
the demands of the Eighth Amendment. The two justices in question, Brennan and Marshall, subsequently joined in a
majority opinion holding a Nevada mandatory death penalty statute unconstitutional for failure to adhere to the
individualized capital sentencing doctrine, Sumner v. Shuman, 483 U.S. 66 (1987).
138
See e.g., Roberts v. Louisiana, 431 U.S. 633 (1977); Lockett v. Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma,
455 U.S. 104 (1982); Skipper v. South Carolina, 477 U.S. 1 (1986); Hitchcock v. Dugger, 481 U.S. 393 (1987);
Sumner v. Shuman, 483 U.S. 66 (1987).
139
“The futility of attempting to solve the problems of mandatory death penalty statutes by narrowing the scope of the
capital offense stems from our society’s rejection of the belief that every offense in a like legal category calls for an
identical punishment without regard to the past life and habits of a particular offender,” Roberts v. Louisiana, 428 U.S.
at 333; Sumner v. Shuman, 483 U.S. at 75 n.3.
140
“We recognize that, in noncapital cases, the established practice of individualized sentences rests not on
constitutional commands, but on public policy enacted into statutes,” Lockett v. Ohio, 438 U.S. at 604-605.
136
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Gravity of the Offense
The defendant in Harmelin v. Michigan141 was a first time offender convicted of possession of
672 grams of cocaine, enough for possibly as many as 65,000 individual doses. Under the laws of
the state of Michigan, the conviction carried with it a mandatory sentence of life imprisonment
without the possibility of parole.
Harmelin contended that the sentence violated both the individual consideration and
proportionality doctrines of the Eighth Amendment. A majority of the Court rejected the
individual considerations argument and a plurality refused to accept the proportionality assertion.
The Court noted that in its opinions “[t]he penalty of death differs from all other forms of
criminal punishment.... in its total irrevocability.”142 In view of the differences, the majority saw
no reason “to extend this so-called individualized capital-sentencing doctrine to an individualized
mandatory life in prison without parole sentencing doctrine.”143
The proportionality question proved somewhat more difficult. Justice Scalia and Chief Justice
Rehnquist simply refused to recognize an Eighth Amendment proportionality requirement, at least
in noncapital cases.144 For three other justices, Kennedy, O’Connor and Souter, a sentence which
satisfies the first of the Solem tests, seriousness of the offense, need not survive or even face
comparisons with sentences for other crimes in the same jurisdiction and for the same crime in
other jurisdictions.145 More precisely, the plurality emphasized that “the Eighth Amendment does
not require strict proportionality between crime and sentence. Rather, it forbids only extreme
sentences that are grossly disproportionate to the crime.”146 In the case of Harmelin, the sentence
141
142
501 U.S. 957 (1991).
Id. at 995, quoting Furman v. Georgia, 408 U.S. at 306 (Stewart, J.)(concurring).
143
Id. at 995 (citations omitted).
144
Id. at 994.
145
Id. 501 U.S. at 1004.
146
Id. at 1001. Four principles dictate a high proportionality threshold for a plurality of the Court: “The first ... is that
the fixing of prison terms for specific crimes involves a substantive penological judgment that, as a general matter, is
properly within the province of legislatures, not courts.... The efficacy of any sentencing system cannot be assessed
absent agreement on the purposes and objectives of the penal system. And the responsibility for making these
fundamental choices and implementing them lies with the legislature....
“The second principle is that the Eighth Amendment does not mandate adoption of any one penological theory. The
principles which have guided criminal sentencing ... have varied with the times. The federal and state criminal systems
have accorded different weights at different times to the penological goals of retribution, deterrence, incapacitation, and
rehabilitation. And competing theories of mandatory and discretionary sentencing have been in varying degrees of
ascendancy or decline since the beginning of the Republic.
“Third, marked divergences both in underlying theories of sentencing and in the length of prescribed prison terms are
the inevitable, often beneficial, result of the federal structure.... State sentencing schemes may embody different
penological assumptions, making interstate comparison of sentences a difficult and imperfect enterprise. And even
assuming identical philosophies, differing attitudes and perceptions of local conditions may yield different, yet rational,
conclusions regarding the appropriate length of prison terms for particular crimes. Thus, the circumstance that a State
has the most severe punishment for a particular crime does not by itself render the punishment grossly disproportionate
... Absent a constitutionally imposed uniformity inimical to traditional notions of federalism, some State will always
bear the distinction of treating particular offenders more severely than any other State.
“The fourth principle ... is that proportionality review by federal courts should be informed by objective factors to the
maximum possible extent.... [O]ur decisions recognize that we lack clear objective standards to distinguish between
(continued...)
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was not grossly disproportionate because of the severity of his crime, that is, “the pernicious
effects of the drug epidemic in this country ... demonstrate that the ... legislature could with
reason conclude that the threat posed to the individual and society by possession of this large an
amount of cocaine – in terms of violence, crime, and social displacement – is momentous enough
to warrant the deterrence and retribution of a life sentence without parole.”147
The plurality opinion also contains several useful observations about the constitutionality of
mandatory sentences per se.148
Deference to legislative judgment notwithstanding, when the Court later applied the same gross
disproportionality standard in an excessive fines context, it seemed to imply that even misconduct
legislatively classified as a fairly serious crime (a felony) might lack the gravity to support
boundless sanctions. United States v. Bajakajian149 involved the confiscation of $357,144 as a
consequence of trying to carry it out of the United States without reporting it, a willful act
punishable by imprisonment for not more than 5 years, 31 U.S.C. 5322. In the eyes of the Court,
the crime involved a “minimal level of culpability.” Moreover, “[t]he harm ... caused was also
minimal. Failure to report this currency affected only one party, the Government, and in a
relatively minor way.... Had his crime gone undetected, the Government would have been
deprived only of the information that $357,144 had left the country.... Comparing the gravity of
respondent’s crime with the $357,144 forfeiture the Government seeks, we conclude that such a
forfeiture would be grossly disproportional to the gravity of his offense.”150
Did this mean that long mandatory minimum terms of imprisonment triggered by misconduct that
a court might treat as a misdemeanor under California’s three strikes law might fall because it
could result in grossly disproportionate sentences? Four justices said yes, but three said no, and
they were joined by two others who said the law survived constitutional scrutiny regardless of
proportionality.
(...continued)
sentences for different terms of years.... Although no penalty is per se constitutional, the relative lack of objective
standards concerning terms of imprisonment has meant that outside the context of capital punishment, successful
challenges to the proportionality of particular sentences are exceedingly rare,” 501 U.S. at 998-1001 (citations omitted).
147
Id. at 1003.
148
“It is beyond question that the legislature ‘has the power to define criminal punishments without giving the courts
any sentencing discretion,’ Chapman v. United States, [500 U.S. 453, 467 (1991)]. Since the beginning of the Republic,
Congress and the States have enacted mandatory sentencing schemes. To set aside petitioner’s mandatory sentence
would require rejection not of the judgment of a single jurist, as in Solem, but rather the collective wisdom of the
Michigan Legislature and, as a consequence, the Michigan citizenry. We have never invalidated a penalty mandated by
a legislature based only on the length of sentence, and, especially with a crime as severe as this one, we should do so
only in the most extreme circumstance.
“In asserting the constitutionality of this mandatory sentence, I offer no judgment on its wisdom. Mandatory sentencing
schemes can be criticized for depriving judges of the power to exercise individual discretion when remorse and
acknowledgment of guilt, or other extenuating facts, present what might seem a compelling case for departure from the
maximum. On the other hand, broad and unreviewed discretion exercised by sentencing judges leads to the perception
that no clear standards are being applied, and that the rule of law is imperiled by sentences imposed for no discernible
reason other than the subjective reactions of the sentencing judge. The debate illustrates that, as noted at the outset,
arguments for and against particular sentencing schemes are for legislatures to resolve,” 501 U.S. at 1006-1007.
149
524 U.S. 321 (1998).
150
Id. at 338-40.
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The question arose from the sentencing of an oft-convicted defendant to imprisonment for not
less than 25 years pursuant to the California recidivist statute as a result of his attempt to steal
three golf clubs valued at just under $400 a piece, Ewing v. California.151 Under California law,
the trial court might have chosen to avoid the three strikes statute either by sentencing the
attempted theft as a misdemeanor or by ignoring the nature of the earlier convictions.152 It chose
not to. The California appellate courts rejected Ewing’s Eighth Amendment challenges,153 as did a
majority of the Members of the Supreme Court.
Justices Scalia and Thomas “concluded that the Eighth Amendment’s prohibition of ‘cruel and
unusual punishments’ [is] not a ‘guarantee’ against disproportionate sentences” and that Ewing’s
sentence did not constitute cruel and unusual punishment in violation of the Eight Amendment.154
Justice O’Connor, joined by Justice Kennedy and Chief Justice Rehnquist, believe that the cruel
and unusual punishments clause includes a “narrow proportionality principle that applies to
noncapital sentences.”155 They note that standing alone the theft of property valued at nearly
$1,200 “should not be taken lightly.”156 Moreover, “[i]n weighing the gravity of Ewing’s offense,
we must place in the scales not only his current felony, but also his long history of felony
recidivism.”157 Thus, “Ewing’s sentence of 25 years to life in prison, for the offense of felony
grand theft under the three strikes law, is not grossly disproportionate and therefore does not
violate the Eighth Amendment’s prohibition on cruel and unusual punishments.”158
Class of Offenders
Proportionality is balance: the severity of the punishment weighted against gravity of the offense.
Justice O’Connor’s Ewing opinion indicates that certain of a defendant’s individual
circumstances, his criminal record for instance, enhance gravity of the offense. Other cases hold
out the possibility that other individualistic circumstances, such as the defendant’s mental
151
538 U.S. 11 (2003). Ewing was sentenced to life imprisonment, but would be eligible for parole after serving 25
years, id. at 16, 20. His case came to the court directly from the California appellate courts. At the same time but
without reaching the merits, the Court disposed of another California three strikes case that reached it by way of habeas
review from the Ninth Circuit, Lockyer v. Andrade, 538 U.S. 63 (2003). The habeas statute binds the federal courts to
any state court interpretation of a constitutional issue unless the decision of the state courts was “contrary to, or
involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the
United States,” 28 U.S.C. 2254(d)(1). Relying on Rummel, the California courts had rejected Andrade’s Eighth
Amendment challenge of his sentence under the three strikes law. In doing so, a majority of the Court concluded that
the California appellate decision foreclosed federal habeas review, since the California decision was neither contrary to
the Court’s Eighth Amendment jurisprudence nor unreasonably applied it, 538 U.S. at 74-7.
152
Id. at 16-7.
153
Id. at 20.
154
Id. 31-2 (Scalia, J. concurring in the judgment); id. at 32 (Thomas, J. concurring in the judgment).
155
Id. at 20.
156
Id. at 28.
157
Id. at 29. Prior to his three strike triggering conviction for stealing the golf clubs, Ewing had been convicted of: theft
in 1984, grand theft auto in 1988, petty theft in 1990, battery in 1992, burglary in January of 1993, possession of drug
paraphernalia in February of 1993, appropriating lost property in July of 1993, trespassing and unlawful possession of a
firearm in September of 1993, robbery and three counts of burglary in December of 1993, id. at 18-9.
The four dissenting Justices found the proportionality standard applicable and would have found Ewing’s sentence
grossly disproportionate to the gravity of his offense consequently in violation of the Eight Amendment, id. at 32
(Breyer, J, with Stevens, Souter, and Ginsburg, dissenting).
158
Id. at 30-1.
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capacity or maturity, may enhance the severity of the punishment. These cases also have their
origin in the death penalty cases.
The first of these, Atkins v. Virginia, held that the Eighth Amendment barred execution of a
mentally retarded defendant.159 In the years leading up to Atkins, a substantial number of state
legislatures in capital punishment states had banned execution of the mentally retarded.160
Elsewhere, though permitted in law, the practice has been abandoned in fact.161 This, coupled
with the fact that a want of defendant capacity undermines the normal expectations and
justifications of the criminal justice system, marked execution of the mentally retarded as an
Eighth Amendment impermissible excessive punishment.162
For much the same reason, the Court shortly thereafter in Roper v. Simmons declared that the
Eighth Amendment prohibited imposing the death penalty for a crime committed as a juvenile.163
Next, the Court carried the Atkins-Roper line of cases beyond the capital punishment realm. In
Graham v. Florida, Justice Kennedy explained that “[t]he Court’s cases addressing the
proportionality of sentences fall within two general classifications. The first involves challenges
to the length of term-of-years sentences given all the circumstances of a particular case. The
second comprises cases in which the Court implements the proportionality standard by certain
categorical restrictions on the death penalty.”164 In the first line of cases, the Solem-HarmelinEwing line, the Court employs a proportionality standard, and “it has been difficult for the
challenger to establish a lack of proportionality.”165
In the second line of cases, the Atkins-Roper line, Graham recognized a two-step approach used
when the challenge is based on a characteristic of the defendant, such as his mental capacity as in
Atkins or his age as in Roper.166 First, the Court “considers ‘objective indicia of society’s
standards, as expressed in legislative enactments and state practice’ to determine whether there is
a national consensus against the sentencing practice at issue.”167 Second, “guided by ‘the
standards elaborated by controlling precedents and by the Court’s own understanding and
interpretation of the Eighth Amendment’s text, history, meaning, and purpose,’ the Court must
determine in the exercise of its own independent judgment whether the punishment in question
violates the Constitution.”168
Graham challenged his sentence of life imprisonment without the possibility of parole imposed
the commission of a nonhomicide, armed robbery, committed while a child. Using this AtkinsRoper approach the Court concluded that the Eighth Amendment precluded Graham’s sentence. It
159
536 U.S. 304, 321 (2002).
Id. at 314-15.
161
Id. at 315-16
162
Id. at 321 (“Construing and applying the Eighth Amendment in the light of our ‘evolving standards of decency,’ we
therefore conclude that such punishment is excessive and that the Constitution ‘places a substantial restriction on the
State’s power to take the life’ of a mentally retarded offender”).
163
543 U.S. 551, 564-78.
164
130 S.Ct. 2011, 2021 (2010).
165
Id.
166
Id. at 2022.
167
Id.
168
Id.
160
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carried that logic forward in Miller v. Alabama.169 The Miller defendants had been convicted of
capital murder committed while juveniles and had been sentenced to life imprisonment without
the possibility of parole.170 That the Eighth Amendment does not permit, the Court held.171 The
Miller sentencing procedures suffered from two previously identified constitutional defects. First,
they barred consideration of the mitigating impact of the defendant’s age:
By removing youth from the balance – by subjecting a juvenile to the same life-withoutparole sentence applicable to an adult – these laws prohibit a sentencing authority from
assessing whether the law’s harshest term of imprisonment proportionately punishes a
juvenile offender. That contravenes Graham’s (also Roper’s) foundational principle: that
imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though
they were not children.172
Second, the procedure not only failed to account a paramount culpability-reducing factor, but it
also failed to account for the severity of the sentence when imposed upon a child:
Graham makes plain these mandatory scheme’s defects in another way: by likening lifewithout-parole sentences imposed on juveniles to the death penalty itself. Life-withoutparole terms, the Court wrote, share some characteristics with death sentences that are shared
by no other sentences. Imprisoning an offender until he dies alters the remainder of his life
by a forfeiture that is irrevocable. And this lengthiest possible incarceration is an especially
harsh punishment for a juvenile because he will almost inevitably serve more years and a
greater percentage of his life in prison than an adult offender. The penalty when imposed on
a teenage, as compared with an older person, is therefore the same in name only. All of that
suggested a distinctive set of legal rules: In part because we viewed this ultimate penalty for
juveniles as akin to the death penalty, we treated it similarly to that most severe
punishment.173
Thus, under the current state of the law, the Eighth Amendment bars imposition of a mandatory
life term of imprisonment upon juveniles and most likely a particular term of imprisonment in
those exceptionally rare cases when the punishment is grossly disproportionate to the offense.
Juries, Grand Juries, and Due Process
The Constitution demands that no person “be held to answer for a capital or otherwise infamous
crime, unless on a presentment or indictment of a grand jury” and that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial
jury.”174 Moreover, due process requires that the prosecution prove beyond a reasonable doubt
“every fact necessary to constitute the crime” with which an accused is charged, In re Winship.175
After Winship, the question arose whether a statute might authorize or require a more severe
penalty for a particular crime based on a fact—not included in the indictment, not found by the
jury, and not proven beyond a reasonable doubt. Pennsylvania passed a law under which various
169
132 S.Ct. 2455 (2012).
Id. at 2461-462.
171
Id. at 2476.
172
Id. at 2466.
173
Id. (internal citations and quotation marks omitted).
174
U.S.Const. Amends. V, VI.
175
397 U.S. 358, 364 (1970).
170
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serious crimes (rape, robbery, kidnapping, and the like) were subject to a mandatory minimum
penalty of imprisonment for five years, if the judge after conviction found by a preponderance of
the evidence that the defendant had been in visible possession of a firearm during the commission
of the offense.176 Had the Pennsylvania statute created a new series of crimes? For example, had it
supplemented its crime of rape with a new crime of rape while in visible possession of a firearm?
And if so, did the fact of visible possession have to be proven to the jury beyond a reasonable
doubt?177
The Supreme Court concluded that visible possession of a firearm under the statute was not an
element of a new series of crimes, but was instead a sentencing consideration that had been given
a legislatively prescribed weight.178 As such, the Pennsylvania statutory scheme neither offended
due process nor triggered any right to a separate jury finding.179
There followed a number of state and federal statutes under which facts that might earlier have
been treated as elements of a new crime were simply classified as sentencing factors. In some
instances, the new sentencing factor permitted imposition of a penalty far in excess of that
otherwise available for the underlying offense. For instance, the Supreme Court found no
constitutional defect in a statute which punished a deported alien for returning to the United
States by imprisonment for not more than 2 years, but which permitted the alien to be sentenced
to imprisonment for not more than 20 years upon a post-trial, judicial determination that the alien
had been convicted of a serious crime following deportation.180
Perhaps uneasy with the implications, the Court soon made it clear that, “under the Due Process
Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment,
any fact (other than prior conviction) that increases the maximum penalty for a crime must be
charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt,” Apprendi v.
New Jersey.181 Side opinions questioned the continued vitality of McMillan’s mandatory
minimum determination in light of the Apprendi.182
176
42 Pa.Cons.Stat. 9712 (1982), reprinted in McMillan v. Pennsylvania, 477 U.S. 79, 81-2 n.1 (1986).
The right to grand jury indictment was not implicated since the Sixth Amendment right to grand jury indictment
applies only to federal prosecutions, Alexander v. Louisiana, 405 U.S. 625, 633 (1972).
178
McMillan v. Pennsylvania, 477 U.S. 79 (1986).
179
Id. at 84, 93.
177
180
Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998).
181
530 U.S. 466, 476 (2000)(emphasis added).
“Thus, the Court appears to hold that any fact that increases or alters the range of penalties to which a defendant is
exposed – which, by definition, must include increases or alterations to either the minimum or maximum penalties –
must be proved to a jury beyond a reasonable doubt. In McMillan, however, we rejected such a rule to the extent it
concerned those facts that increase or alter the minimum penalty to which a defendant is exposed. Accordingly, it is
incumbent on the Court not only to admit that it is overruling McMillan, but also to explain why such a course of action
is appropriate under normal principles of stare decisis,” 530 U.S. at 533 (O’Connor, with Kennedy, Breyer, JJ., and
Rehnquist, Ch.J., dissenting).
“[T]his traditional understanding – that a crime includes every fact that is by law a basis for imposing or increasing
punishment – continued well into the 20th century, at least until the middle of the century.... I think it clear that the
common-law rule would cover the McMillan situation of a mandatory minimum sentence.... [A defendant’s] expected
punishment has increased as a result of the narrowed range and that the prosecution is empowered, by invoking the
mandatory minimum, to require the judge to impose a higher punishment than he might wish. The mandatory minimum
entitles the government to more than it would otherwise be entitled.... Thus, the fact triggering the mandatory minimum
is part of the punishment sought to be inflicted; it undoubtedly enters into the punishment so as to aggravate it, and is
(continued...)
182
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Initially unwilling to extend Apprendi to mandatory minimums in Harris,183 the Court did so in
Alleyne v. United States.184 Alleyne was convicted under the statute that imposes a series of
mandatory minimum penalties upon defendants who carry a firearm during and in furtherance of
a crime of violence (5 years for carrying; 7 years for brandishing; 10 years for discharging).185
The jury found him guilty of carrying; the court concluded the gun had been brandished.186 The
Sixth Amendment requires that the question of brandishing had to be found by the jury, the Court
declared:
Harris drew a distinction between facts that increase the statutory maximum and facts that
increase only the mandatory minimum. We conclude that this distinction is inconsistent with
our decision in Apprendi and with the original meaning of the Sixth Amendment. Any fact
that, by law, increases the penalty for a crime is an element that must be submitted to the jury
and found beyond a reasonable doubt. Mandatory minimum sentences increase the penalty
for a crime. It follows, then, that any fact that increases the mandatory minimum is an
element that must be submitted to the jury.187
(...continued)
an act to which the law affixes punishment. Further ... it is likely that the change in the range available to the judge
affects his choice of sentences. Finally, in numerous cases ... the aggravating fact raised the whole range – both the top
and bottom. Those courts, in holding that such a fact was an element, did not bother with any distinction between
changes in the maximum and the minimum. What mattered was simply the overall increase in the punishment provided
by law,” 530 U.S. at 518, 521-22 (Thomas, J., concurring); see also, Rethinking Mandatory Minimums After Apprendi,
96 NORTHWESTERN UNIVERSITY LAW REVIEW 811 (2002); Levine, The Confounding Boundaries of “Apprendi-land”:
Statutory Minimums and the Federal Sentencing Guidelines, 29 AMERICAN JOURNAL OF CRIMINAL LAW 377 (2002).
183
Harris v. United States, 536 U.S. 545, 568 (2002)(“Reaffirming McMillan and employing the approach outlined in
that case, we conclude that the federal provision at issue, 18 U.S.C. §924(c)(1)(A) (ii), is constitutional. Basing a 2-year
increase in the defendant’s minimum sentence on a judicial finding of brandishing does not evade the requirements of
the Fifth and Sixth Amendments. Congress ‘simply took one factor that has always been considered by sentencing
courts to bear on punishment ... and dictated the precise weight to be given that factor.’ McMillan, 477 U.S. at 89-90.
That factor need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt”).
Of course, Harris was not meant to serve as either an endorsement or condemnation of mandatory minimum sentencing
as such: “The Court is well aware that many question the wisdom of mandatory minimum sentencing. Mandatory
minimums, it is often said, fail to account for the unique circumstances of offenders who warrant a lesser penalty.
These criticisms may be sound, but they would persist whether the judge or the jury found the facts given rise to the
minimum,” 530 U.S. at 568. See also, 530 U.S. at 570-71 (Breyer, J., concurring in part and concurring in the
judgment): “I do not mean to suggest my approval of mandatory minimum sentences as a matter of policy. During the
past two decades, as mandatory minimum sentencing statutes have proliferated in number and importance, judges,
legislators, lawyers, and commentators have criticized those statutes, arguing that they negatively affect the fair
administration of the criminal law, a matter concern to judge sand to legislators alike.”
“Mandatory minimum statutes are fundamentally inconsistent with Congress’ simultaneous effort to create a fair,
honest, and rational sentencing system through the use of Sentencing Guidelines. Unlike Guideline sentences, statutory
mandatory minimums generally deny the judge the legal power to depart downward, no matter how unusual the special
circumstances that call for leniency. They rarely reflect an effort to achieve sentencing proportionality – a key element
of sentencing fairness that demands that the law punish a drug ‘kingpin’ and a ‘mule’ differently. They transfer
sentencing power to prosecutors, who can determine sentences through the charges they decide to bring, and who
thereby have reintroduced much of the sentencing disparity that Congress created Guidelines to eliminate. They rarely
are based upon empirical study. And there is evidence that they encourage subterfuge leading to more frequent
downward departures (on a random basis), thereby making them comparatively ineffective means of guaranteeing
tough sentences.”
184
133 S.Ct. 2151 (2013).
185
18 U.S.C. 924(c).
186
133 S.Ct. at 2156.
187
Id. at 2155 (internal citations and quotation marks omitted).
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Neither the Sixth Amendment, Apprendi, nor Alleyne limits Congress’s authority to establish
mandatory minimum sentences nor limits the authority of the courts to impose them. They simply
dictate the procedural safeguards that must accompany the exercise of that authority.
Separation of Powers
While “it remains a basic principle of our constitutional scheme that one branch of the
Government may not intrude upon the central prerogatives of another,”188 the Supreme Court has
observed that “Congress has the power to define criminal punishments without giving the courts
any sentencing discretion.”189 Thus, the lower federal courts have regularly upheld mandatory
minimum statutes when challenged on separation of powers grounds,190 and the Supreme Court
has denied any separation of powers infirmity in the federal sentencing guideline system which at
the time might have been thought to produce its own form of mandatory minimums.191
Drug Crimes
Federal law regulates the cultivation, manufacture, distribution, export, import, and possession of
certain plants, drugs, and chemicals, which it designates as controlled substances and classifies
according to medicinal value and potential for abuse under the Controlled Substances Act and the
Controlled Substances Import and Export Act.192 The acts contain a number of mandatory
minimum penalty provisions. Most involve possession with the intent to distribute (traffic)
substantial amounts of eight controlled substances which are considered highly susceptible to
abuse.193 The mandatory minimums are structured so that more severe sentences attend cases
involving very substantial quantities,194 death or serious bodily injury,195 or repeat offenders.196
The penalties of the underlying offense apply to anyone who attempts or conspires to commit any
controlled substance offense that carries a mandatory minimum.197
188
Loving v. United States, 517 U.S. 748, 757 (1996).
United States v. Chapman, 500 U.S. 453, 467 (1991).
190
United States v. Kaluna, 192 F.3d 1188, 1199 (9th Cir. 1999); United States v. Rasco, 123 F.3d 222, 226-27 (5th Cir.
1997); United States v. Washington, 109 F.3d 335, 338 (7th Cir. 1997); United States v. Prior, 107 F.3d 654, 660 (8th
Cir. 1997).
191
Mistretta v. United States, 488 U.S. 361 (1989). Mistretta, sentenced under the guidelines to 18 months’
imprisonment for conspiracy to distribute cocaine, argued that the guidelines constituted an unconstitutional delegation
of Congress’s legislative authority and that the service of judges upon the Commission constituted extrajudicial service
at odds with the separation of powers doctrine. The Court rejected both arguments concluding “that in creating the
Sentencing Commission ... Congress neither delegated excessive legislative power nor upset the constitutionally
mandated balance of powers among the coordinate Branches,” 488 U.S. at 412.
192
Codified at 21 U.S.C. 801 to 904, and 21 U.S. 951 to 971, respectively. Schedule I and II are reserved for substances
with a high potential for abuse, 21 U.S.C. 812(b)(1), (2). The Maritime Drug Law Enforcement Act applies the
prohibitions and mandatory minimums of the Controlled Substances and Controlled Substances Import and Export Act
in certain maritime situations, 46 U.S.C. 70501 to 70508.
193
21 U.S.C. 841(b)(1); 21 U.S.C. 960(b)(1).
194
21 U.S.C. 841(b)(1)(A), (B); 21 U.S.C. 960(b)(1), (2).
195
Id.
196
Id.
197
21 U.S.C. 846, 963.
189
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The eight trigger substances are heroin, powder cocaine, cocaine base (crack), PCP, LSD,
propanamide, methamphetamine, and marijuana. Each comes with one set of mandatory
minimums for trafficking a substantial amount and a second, high set of mandatory minimums for
ten times that amount. The first set (841(b)(1)(B) levels) has the following thresholds:
•
heroin - 100 grams;198
•
powder cocaine - 500 grams;199
•
crack - 28 grams;200
•
PCP - 100 grams;201
•
LSD - 1 gram;202
•
propanamide - 40 grams;203
•
methamphetamine - 5 grams;204
•
marijuana - 100 kilograms.205
The second set (841(b)(1)(A) levels):
•
heroin - 1 kilogram;206
•
powder cocaine – 5 kilograms;207
198
21 U.S.C. 841(b)(1)(B)(i)(“100 grams or more of a mixture or substance containing a detectable amount of heroin”)
(10 grams = .35 ounces; 1 kilogram (1,000 grams) = 2.2 lbs.). 21 U.S.C. 841(b) and 960(b) use the same thresholds.
199
21 U.S.C. 841(b)(1)(B)(ii)(“500 grams or more of a mixture or substance containing a detectable amount of- (I)
coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine
or their salts have been removed; (II) cocaine, its salts, optical and geometric isomers, and salts of isomers; (III)
ecgonine, its derivatives, their salts, isomers, and salts of isomers; or (IV) any compound, mixture, or preparation
which contains any quantity of any of the substances referred to in subclauses (I) through (III)”).
200
21 U.S.C. 841(b)(1)(B)(iii)(“28 grams or more of a mixture or substance described in clause (ii) which contains
cocaine base”).
201
21 U.S.C. 841(b)(1)(B)(iv)(“10 grams or more of phencyclidine (PCP) or 100 grams or more of a mixture or
substance containing a detectable amount of phencyclidine (PCP)”).
202
21 U.S.C. 841(b)(1)(B)(v)(“1 gram or more of a mixture or substance containing a detectable amount of lysergic
acid diethylamide (LSD)”).
203
21 U.S.C. 841(b)(1)(B)(vi)(“40 grams or more of a mixture or substance containing a detectable amount of Nphenyl-N- [ 1- ( 2-phenylethyl ) -4-piperidinyl ] propanamide or 10 grams or more of a mixture or substance containing
a detectable amount of any analogue of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide”).
204
21 U.S.C. 841(b)(1)(B)(viii)(“5 grams or more of methamphetamine, its salts, isomers, and salts of its isomers or 50
grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or
salts of its isomers”).
205
21 U.S.C. 841(b)(1)(B)(vii)(“100 kilograms or more of a mixture or substance containing a detectable amount of
marihuana, or 100 or more marihuana plants regardless of weight”).
206
21 U.S.C. 841(b)(1)(A)(i)(“1 kilogram grams or more of a mixture or substance containing a detectable amount of
heroin”) (10 grams = .35 ounces; 1 kilogram (1,000 grams) = 2.2 lbs.). 21 U.S.C. 841(b) and 960(b) use the same
thresholds.
207
21 U.S.C. 841(b)(1)(A)(ii)(“5 kilograms or more of a mixture or substance containing a detectable amount of- (I)
coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine
or their salts have been removed; (II) cocaine, its salts, optical and geometric isomers, and salts of isomers; (III)
ecgonine, its derivatives, their salts, isomers, and salts of isomers; or (IV) any compound, mixture, or preparation
which contains any quantity of any of the substances referred to in subclauses (I) through (III)”).
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•
crack - 280 grams;208
•
PCP - 100 grams;209
•
LSD - 10 grams;210
•
propanamide - 400 grams;211
•
methamphetamine - 50 grams;212
•
marijuana – 1,000 kilograms.213
In addition to the volume mandatory minimums for these eight, trafficking in lesser amounts of
those substances, or in other schedule I or schedule II controlled substances, or in various “date
rape” drugs carries mandatory minimums if the business results in death or serious bodily
injury.214
Severe mandatory minimum penalties also follow conviction under the continuing criminal
enterprise (“drug kingpin”) section. Section 848(c) defines a continuing criminal enterprise as one
in which an individual derives substantial income from directing five or more others in the
commission of various controlled substance felonies.215 The offense itself carries a term of
imprisonment of not less than 20 years and may be increased to not more than 30 years for repeat
offenders.216 Furthermore, anyone who kills in furtherance of the enterprise is punishable by
208
21 U.S.C. 841(b)(1)(A)(iii)(“280 grams or more of a mixture or substance described in clause (ii) which contains
cocaine base”).
209
21 U.S.C. 841(b)(1)(A)(iv)(“100 grams or more of phencyclidine (PCP) or 1 kilogram grams or more of a mixture
or substance containing a detectable amount of phencyclidine (PCP)”).
210
21 U.S.C. 841(b)(1)(A)(v)(“10 grams or more of a mixture or substance containing a detectable amount of lysergic
acid diethylamide (LSD)”).
211
21 U.S.C. 841(b)(1)(A)(vi)(“400 grams or more of a mixture or substance containing a detectable amount of Nphenyl-N- [ 1- ( 2-phenylethyl ) -4-piperidinyl ] propanamide or 10 grams or more of a mixture or substance containing
a detectable amount of any analogue of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide”).
212
21 U.S.C. 841(b)(1)(A)(viii)(“50 grams or more of methamphetamine, its salts, isomers, and salts of its isomers or
500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or
salts of its isomers”).
213
21 U.S.C. 841(b)(1)(A)(vii)(“1000 kilograms or more of a mixture or substance containing a detectable amount of
marihuana, or 1000 or more marihuana plants regardless of weight”).
214
21 U.S.C. 841(b)(1)(C)(“In the case of a controlled substance in schedule I or II, gamma hydroxybutyric acid
(including when scheduled as an approved drug product for purposes of section 3(a)(1)(B) of the Hillory J. Farias and
Samantha Reid Date-Rape Drug Prohibition Act of 2000), or 1 gram of flunitrazepam, except as provided in
subparagraphs (A), (B), and (D), such person ... if death or serious bodily injury results from the use of such substance
shall be sentenced to a term of imprisonment of not less than twenty years or more than life, a fine not to exceed the
greater of that authorized in accordance with the provisions of title 18 or $1,000,000 if the defendant is an individual or
$5,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior
conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not
more than 30 years and if death or serious bodily injury results from the use of such substance shall be sentenced to life
imprisonment, a fine not to exceed the greater of twice that authorized in accordance with the provisions of title 18 or
$2,000,000 if the defendant is an individual or $10,000,000 if the defendant is other than an individual, or both ... ”).
215
21 U.S.C. 848(c)(“For purposes of subsection (a) of this section, a person is engaged in a continuing criminal
enterprise if - (1) he violates any provision of this subchapter or subchapter II of this chapter the punishment for which
is a felony, and (2) such violation is a part of a continuing series of violations of this subchapter or subchapter II of this
chapter - (A) which are undertaken by such person in concert with five or more other persons with respect to whom
such person occupies a position of organizer, a supervisory position, or any other position of management, and (B)
from which such person obtains substantial income or resources”).
216
21 U.S.C. 848(a).
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imprisonment for not less than 20 years and may be put to death.217 Large scale drug kingpins
who traffic in vast amounts of any of the eight 841(b)(1) substances or who realize vast fortunes
from such trafficking receive a mandatory life term of imprisonment upon conviction.218
Narco-terrorists who traffic in the threshold amounts of the eight 841(b)(1) substances are
punishable by imprisonment for not less than twice the mandatory minimum that would otherwise
apply.219
As reflected in the chart below, less stringent mandatory minimum sentences await repeat
offenders convicted of simple possession220 and those who traffic controlled substances, not
otherwise accompanied by mandatory minimums, to pregnant women,221 children,222 or in
proximity of a school, playground or other prohibited location.223
217
21 U.S.C. 848(e)(1)(“In addition to the other penalties set forth in this section- (A) any person engaging in or
working in furtherance of a continuing criminal enterprise, or any person engaging in an offense punishable under
section 841(b)(1)(A) or section 960(b)(1) of this title who intentionally kills or counsels, commands, induces, procures,
or causes the intentional killing of an individual and such killing results, shall be sentenced to any term of
imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to
death; and (B) any person, during the commission of, in furtherance of, or while attempting to avoid apprehension,
prosecution or service of a prison sentence for, a felony violation of this subchapter or subchapter II of this chapter who
intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of any Federal, State, or
local law enforcement officer engaged in, or on account of, the performance of such officer’s official duties and such
killing results, shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may be
up to life imprisonment, or may be sentenced to death”).
218
21 U.S.C. 848(b), (s)(“Any person who engages in a continuing criminal enterprise shall be imprisoned for life ... if
- (1) such person is the principal administrator, organizer, or leader of the enterprise or is one of several such principal
administrators, organizers, or leaders; and (2)(A) the violation referred to in subsection (c)(1) of this section involved at
least 300 times the quantity of a substance described in subsection 841(b)(1)(B) of this title [or at least 200 times the
quantity of methamphetamine described in that section] or (B) the enterprise, or any other enterprise in which the
defendant was the principal or one of several principal administrators, organizers, or leaders, received $10 million
dollars in gross receipts [or $5 million in the case of methamphetamine trafficking] during any twelve-month period of
its existence for the manufacture, importation, or distribution of a substance described in section 841(b)(1)(B) of this
title”).
219
21 U.S.C. 960a (“Whoever engages in conduct that would be punishable under section 841(a) of this title if
committed within the jurisdiction of the United States, or attempts or conspires to do so, knowing or intending to
provide, directly or indirectly, anything of pecuniary value to any person or organization that has engaged or engages in
terrorist activity ... or terrorism ... shall be sentenced to a term of imprisonment of not less than twice the minimum
punishment under section 841(b)(1), and not more than life, a fine in accordance with the provisions of title 18, or
both”).
220
21 U.S.C. 844(a)(“.... Any person who violates this subsection may be sentenced to a term of imprisonment of not
more than 1 year, and shall be fined a minimum of $1,000, or both, except that if he commits such offense after a prior
conviction under this subchapter or subchapter II of this chapter, or a prior conviction for any drug, narcotic, or
chemical offense chargeable under the law of any State, has become final, he shall be sentenced to a term of
imprisonment for not less than 15 days but not more than 2 years, and shall be fined a minimum of $2,500, except,
further, that if he commits such offense after two or more prior convictions under this subchapter or subchapter II of
this chapter, or two or more prior convictions for any drug, narcotic, or chemical offense chargeable under the law of
any State, or a combination of two or more such offenses have become final, he shall be sentenced to a term of
imprisonment for not less than 90 days but not more than 3 years, and shall be fined a minimum of $5,000 ... ”).
221
21 U.S.C. 861(f), (b), (c).
222
21 U.S.C. 859. The same is true using children to traffic, 21 U.S.C. 861(a), (b), (c).
223
21 U.S.C. 860 (“(a) Any person who violates section 841(a)(1) of this title ... by distributing, possessing with intent
to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property
comprising a public or private elementary, vocational, or secondary school or a public or private college, junior college,
or university, or a playground, or housing facility owned by a public housing authority, or within 100 feet of a public or
private youth center, public swimming pool, or video arcade facility, is (except as provided in subsection (b) of this
(continued...)
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Table 1. Federal Drug Offenses: Mandatory Minimum Terms of Imprisonment
Substance
Trafficking 841(b)(1)(A) substance (e.g., 1 kilo or more of heroin)
Minimum
Maximum
10 years
life
if death or serious injury results
20 years
life
repeat offender
20 years
life
repeat offender if death or serious injury results
life
life
5 years
40 years
if death or serious injury results
20 years
life
repeat offender
10 years
life
repeat offender if death or serious injury results
life
life
20 years
life
life
life
Simple possession of a controlled substance with 1 prior conviction
15 days
2 years
Simple possession of a controlled substance with 2 or more priors
90 days
3 years
Drug kingpin
20 years
life
repeat offender
30 years
life
large operation (e.g., gross $10 million + per year)
life
life
killing in furtherance
20 years
life/death
Unless a higher minimum applies, distribution of a controlled substance to
a pregnant woman, to or using a child.
1 year
2x usual penalty;
3x for repeat
offenders
Unless a higher minimum applies, distribution of a controlled substance
proximate to a school or other prohibited location
1 year
2x usual penalty
3 years
3x usual penalty
Trafficking 841(b)(1)(B) substance (e.g., 100 grams or more of heroin)
Trafficking lesser amounts of 841(b)(1) substances; other schedule I or II
substances; or date rape drugs: if death or serious injury results
repeat offender if death or serious injury results
repeat offender
(...continued)
section) subject to.... Except to the extent a greater minimum sentence is otherwise provided by section 841(b) of this
title, a person shall be sentenced under this subsection to a term of imprisonment of not less than one year. The
mandatory minimum sentencing provisions of this paragraph shall not apply to offenses involving 5 grams or less of
marihuana. (b) Any person who violates section 841(a)(1) of this title by distributing, possessing with intent to
distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, ... or within 100 feet of a
public or private youth center, public swimming pool, or video arcade facility, after a prior conviction under subsection
(a) of this section has become final is punishable.... Except to the extent a greater minimum sentence is otherwise
provided by section 841(b) of this title, a person shall be sentenced under this subsection to a term of imprisonment of
not less than three years ... ”).
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Federal Mandatory Minimum Sentencing Statutes
Substance
Narco-terrorism involving 841(b)(1) substances
Minimum
2x usual minimum
Maximum
life
Possession with Intent
Conviction of possession with intent to distribute various controlled substances forms the basis
for imposition of a mandatory minimum sentence under §841(b). To support a conviction, “the
government must show that the defendant had (1) knowing (2) possession of the drugs and (3) an
intent to distribute them.”224 The government need not prove that the defendant knew the
particular type or quantity of the controlled substance he intended to distribute.225 Culpable
possession may be either actual or constructive.226 “Constructive possession exists where the
defendant has the power to exercise control or dominion over the item. In drug cases, constructive
possession is an appreciable ability to guide the destiny of the contraband.”227 As for the intent to
distribute, it “can be proven circumstantially from, among other things, the quantity of cocaine
and the existence of implements such as scales commonly used in connection with the
distribution of cocaine.”228 Moreover, although proof of sale or gift will suffice, intent to
distribute demands no more than an intent to transfer.229
The escalating mandatory minimums that apply to offenders with “a prior conviction for a felony
drug offense” extend to those classified as misdemeanors under state law but punishable by
imprisonment for more than a year.230 They also apply even though the underlying state felony
conviction has been expunged.231 On the other hand, there is apparently at least a division among
224
United States v. Capers, 708 F.3d 1286, 1297 (11th Cir. 2013); United States v. Mancuso, 718 F.3d 780, 791 (9th Cir.
2013); United States v. Tovar, 719 F.3d 376, 389 (5th Cir. 2013).
225
United States v. Sanders, 668 F.3d 1298, (11th Cir. 2012)(“Although [for the mandatory minimums to apply] the
jury must determine the quantity and type of drug involved, nothing in the statute, the Constitution, or Apprendi
requires the government to prove that the defendant had knowledge of the particular drug type or quantity for which a
sentence is enhanced under §841(b)”); see also, McPhearson v. United States, 675 F.3d 553, 561 (6th Cir. 2012);
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