# Federal Mandatory Minimum Sentencing Statutes > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3ARL32040 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** September 9, 2013 - **Citation:** RL32040 ## Text Federal Mandatory Minimum Sentencing Statutes (name redacted) Senior Specialist in American Public Law September 9, 2013 Congressional Research Service 7-.... www.crs.gov 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. Congressional Research Service 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 Congressional Research Service 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 Congressional Research Service Federal Mandatory Minimum Sentencing Statutes 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 Congressional Research Service 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. Congressional Research Service 1 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). (continued...) Congressional Research Service 2 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...) Congressional Research Service 3 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). Congressional Research Service 4 Federal Mandatory Minimum Sentencing Statutes 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...) Congressional Research Service 5 Federal Mandatory Minimum Sentencing Statutes 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...) Congressional Research Service 6 Federal Mandatory Minimum Sentencing Statutes 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). Congressional Research Service 7 Federal Mandatory Minimum Sentencing Statutes 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). Congressional Research Service 8 Federal Mandatory Minimum Sentencing Statutes 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. Congressional Research Service 9 Federal Mandatory Minimum Sentencing Statutes 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. Congressional Research Service 10 Federal Mandatory Minimum Sentencing Statutes • “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. Congressional Research Service 11 Federal Mandatory Minimum Sentencing Statutes • 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...) Congressional Research Service 12 Federal Mandatory Minimum Sentencing Statutes 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”). Congressional Research Service 13 Federal Mandatory Minimum Sentencing Statutes • 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”). Congressional Research Service 14 Federal Mandatory Minimum Sentencing Statutes 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 Congressional Research Service 15 Federal Mandatory Minimum Sentencing Statutes 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 Congressional Research Service 16 Federal Mandatory Minimum Sentencing Statutes 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 Congressional Research Service 17 Federal Mandatory Minimum Sentencing Statutes 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 Congressional Research Service 18 Federal Mandatory Minimum Sentencing Statutes 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. Congressional Research Service 19 Federal Mandatory Minimum Sentencing Statutes 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 Congressional Research Service 20 Federal Mandatory Minimum Sentencing Statutes 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 Congressional Research Service 21 Federal Mandatory Minimum Sentencing Statutes 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...) Congressional Research Service 22 Federal Mandatory Minimum Sentencing Statutes 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. Congressional Research Service 23 Federal Mandatory Minimum Sentencing Statutes 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3ARL32040. Public record. Not legal advice.