Special Report to the Congress:

Mandatory Minimum Penalties in

the Federal Criminal Justice System

(As directed by section 1703 of Public Law 101-647)

United States Sentencing Commission

Special Report to the Congress:

Mandatory Minimum Penalties in

the Federal Criminal Justice System

(As directed by section 1703 of Public Law 101-647)

United States Sentencing Commission August 1991

UNITED STATES SENTENCING COMMISSION

William W. Wilkins, Jr., Chairman

Julie E. Carnes

Helen G. Corrothers

Michael S. Gelacak

George E. MacKinnon

A. David Mazzone

Ilene H. Nagel

Carol Pavilack Getty (ex offlcio)

Paul L. Maloney (ex officio)

Phyllis J. Newton, Staff Director

John R. Steer, General Counsel

Paul K. Martin, Deputy Staff Director

Candace M. Johnson, Director of Monitoring

Winthrop M. Swenson, Deputy General Counsel

The Sentencing Commission would like to express its appreciation to the following staff members and consultants who

contributed considerable time and effort to this Report: Barbara Meierhoefer of the Federal Judicial Center, Gretchen Van

Ness, Susan Katzenelson, Richard McNeil, Charles McDanal, Charles Harrison, Deborah DeLambert, David DeBold, Mary

McDowell, Stephen Murdoch, Mary Hardy, Eva Hatch and Judy Mercer. Additionally, the Sentencing Commission

appreciates the efforts of the following individuals: David Rauma, James Beck, Patricia Macdonald, Elaine Wolf, Caryl

Ricca, Elizabeth Phillips, Vince Ventimiglia, Pam Montgomery, Jerry Jones, Robert Stein, Andrea Wilson, Jeffrey Bechtel,

Kathleen Dolan and Francesca Bowman.

SUMMARY

In 1984, Congress enacted the most sweeping and dramatic reform of federal sentencing — the

Sentencing Reform Act. The Act was part of the Comprehensive Crime Control Act, whose purpose

was to address the problem of crime in society. The goals of the Sentencing Reform Act were to

reduce unwarranted disparity, increase certainty and uniformity, and correct past patterns of undue

leniency for certain categories of serious offenses.

In order to achieve these goals, Congress created the United States Sentencing Commission as an

independent, permanent agency in the judicial branch; the seven appointed members were to be

confirmed by the Senate, bipartisan, judges and non-judges, and drawn from the ranks of those who

had demonstrated expertise in the criminal justice area. An overriding mandate to the Sentencing

Commission was to determine the appropriate type(s) and length of sentence(s) for each of the more

than 2,000 federal offenses. Congress simultaneously eliminated parole so that sentences

pronounced would be sentences served.

Discretion previously vested in the federal judiciary to set sentences would be vastly curtailed by

the mandatory guidelines that the Sentencing Commission would promulgate. Discretion would not

be eliminated; rather, it would be structured by a guidelines system responsive to congressional

direction as set forth in the Sentencing Reform Act.

The Sentencing Commission was appointed in 1985. The first set of guidelines was submitted to

Congress in April 1987, and became law in November 1987. Between 1987 and 1989, more than

300 challenges to the constitutionality of the guidelines and the Sentencing Commission precluded

full nationwide implementation. In January 1989, the Supreme Court upheld the constitutionality

of the Sentencing Commission and the guidelines in Mistretta v. United States. 488 U.S. 361 (1989).

Full nationwide implementation of the federal sentencing guidelines thus began in late January

1989.

Simultaneous to the development and implementation of the federal sentencing guidelines, Congress

enacted a number of statutes imposing mandatory minimum sentences, largely for drug and weapons

offenses, and for recidivist offenders. The Sentencing Commission drafted the new guidelines to

accommodate these mandatory minimum provisions by anchoring the guidelines to them.

In 1990, Congress formally directed the Sentencing Commission to respond to a series of questions

concerning the compatibility between guidelines and mandatory minimums, the effect of mandatory

minimums, and options for Congress to exercise its power to direct sentencing policy through

mechanisms other than mandatory minimums. It is to this directive that the attached report is

addressed.

Based upon a review of available data, the Sentencing Commission makes the following observations:
There are over 60 criminal statutes that contain mandatory minimum penalties applicable

to federal offenses in the federal criminal code today. Only four of these sixty statutes,

however, frequently result in convictions; the four relate to drug and weapons offenses. (See

discussion, Chapter 2.)

Despite the expectation that mandatory minimum sentences would be applied to all cases

that meet the statutory criteria of eligibility, the available data suggest that this is not the

case. This lack of uniform application creates unwarranted disparity in sentencing, and

compromises the potential for the guidelines sentencing system to reduce disparity. (See

general discussion of data and findings at Chapter 5 and discussion related to lack of

uniformity at Chapter 4.)

In 35 percent of cases in which available data strongly suggest that the defendant's behavior

warrants a sentence under a mandatory minimum statute, defendants plead guilty to offenses

carrying non-mandatory minimum or reduced mandatory minimum provisions. 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. (See Chapter 5 for findings related to the charging and plea

negotiation processes and Chapter 4 for potential conflicts between the guidelines system

and a non-reviewable plea process.)

The disparate application of mandatory minimum sentences in cases in which available data

strongly suggest that a mandatory minimum is applicable appears to be related to the race

of the defendant, where whites are more likely than non-whites to be sentenced below the

applicable mandatory minimum; and to the circuit in which the defendant happens to be

sentenced, where defendants sentenced in some circuits are more likely to be sentenced

below the applicable mandatory minimums than defendants sentenced in other circuits. This

differential application on the basis of race and circuit reflects the very kind of disparity and

discrimination the Sentencing Reform Act, through a system of guidelines, was designed to

reduce. (See findings, Chapter 5.)

Whereas the structure of the federal sentencing guidelines differentiates defendants

convicted of the same offense by a variety of aggravating and mitigating factors, the

consideration of which is meant to provide just punishment and proportional sentences, the

structure of mandatory minimums lacks these distinguishing characteristics. Under the

guidelines, offenders classified as similar receive similar sentences; under mandatory

minimums, offenders seemingly not similar nonetheless receive similar sentences. It thus

appears that an unintended effect of mandatory minimums is unwarranted sentencing

uniformity. (See discussion, Chapter 4.)

Deterrence, a primary goal of the Sentencing Reform Act and the Comprehensive Crime

Control Act, is dependent on certainty and appropriate severity. While mandatory minimum

sentences may increase severity, the data suggest that uneven application may dramatically

reduce certainty. The consequence of this bifurcated pattern is likely to thwart the deterrent

u
value of mandatory minimums. (See Chapter 4 for general discussion of issues and Chapter

5 for discussion of data and findings.)

The Sentencing Reform Act was meant to structure and curtail the pre-guidelines pattern of

unfettered judicial discretion. Congress, however, expressed a concern that judicial

discretion not be transferred to federal prosecutors in a manner that would undermine the

benefits expected to be gained from the guidelines system. The guidelines structure

attempts to strike an appropriate balance by implementing a modified real offense system.

Mandatory minimums, in contrast, are wholly dependent upon defendants being charged and

convicted of the specified offense under the mandatory minimum statute. Since the power

to determine the charge of conviction rests exclusively with the prosecution for the 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. (See Chapter 4 for

discussion of issues and Chapter 5 for discussion of findings.)

The sentencing guidelines system is essentially a system of finely calibrated sentences. For

example, as the quantity of drugs increases, there is a proportional increase in the sentence.

In marked contrast, the mandatory minimums are essentially a flat, tariff-like approach to

sentencing. Whereas guidelines seek a smooth continuum, mandatory minimums result in

"cliffs." The "cliffs" that result from mandatory minimums compromise proportionality, a

fundamental premise for just punishment, and a primary goal of the Sentencing Reform Act.

(See Chapter 4.)

The United States Sentencing Commission, consistent with the mandate established by

Congress, promulgates guidelines and amendments to the guidelines in an iterative fashion.

Amendments reflect changes in statutory maximums, new directives from Congress to the

Sentencing Commission, empirical research on the implementation and effect of guidelines,

emergent case law, the changing nature of crime, changing priorities in prosecution, and

developments in knowledge about effective crime control. The guidelines system, as

envisioned by Congress, is thus a self-correcting, and, hopefully, ever-improving system. In

contrast, mandatory minimums are generally single-shot efforts at crime control intended to

produce dramatic results. They lack, however, a built-in mechanism for evaluating their

effectiveness and easy adjustment. (See Chapter 7.)

Congress has ultimate authority over sentencing policy. The question is how Congress can

best translate its judgment as to appropriate levels of sentence severity into sentences

imposed. Our analyses indicate that the guidelines system established by Congress, because

of its ability to accommodate the vast array of relevant offense/offender characteristics, and

its self-correcting potential, is superior to the mandatory minimum approach. Congress has

effectively communicated its policies on sentencing through the provisions contained in the

Sentencing Reform Act and subsequent legislation. It has continuing oversight of the work

in
of the Sentencing Commission through the statutory requirement that proposed guidelines

and amendments to guidelines be submitted to Congress for 180-day review before they

become effective. The Sentencing Commission is always open to guidance from the Congress

through its established oversight mechanisms.

Accordingly, we conclude that 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. There is every reason to expect that by so doing, Congress can achieve the purposes

of mandatory minimums while not compromising other goals to which it is simultaneously committed.

(See discussion of alternative methods in Chapter 7.)

IV
TABLE OF CONTENTS

Summary i

Chapter 1

Introduction: The Statutory Directive

and Organization of this Report 1

Note About Terminology 4

Chapter 2

An Overview of Mandatory Minimums

in the Federal Criminal Justice System 5

A. The Development of Mandatory Minimum Sentencing

Provisions 5

B. Mandatory Minimum Penalties Today

A General Overview 10

Pending Legislation 13

C. Reasons Cited in Support of Mandatory Minimums 13

Chapter 3

The Establishment of the United States

Sentencing Commission and the Advent of

Guidelines Sentencing 16

A. The Sentencing Reform Act and its Goals 16

B. The Sentencing Commission and the Development of the

Guidelines 17

C. Guideline Implementation 18

D. Guideline Development in the Future 19
Chapter 4

The Guidelines and Mandatory Minimums:

Sentencing Policies in Conflict 20

A. The Guideline Principle of Varying Punishment in Light of CaseSpecific Offense and Offender Characteristics 20

Step One: Determining the Base Offense Level 21

Step Two: Examining the Specific Offense Characteristics 21

Step Three: Applying the Chapter Three Adjustments 22

Step Four: Counting Multiple Counts 22

Step Five: Acceptance of Responsibility 23

Step Six: Assessing the Defendant's Criminal History 24

Step Seven: Determining the Applicable Sentencing Range 25

Summary 25

B. Mandatory Minimum Sentencing Contrasted 26

The "Tariff Effect of Mandatory Minimums 27

The "Cliff Effect of Mandatory Minimums 30

The "Charge-Specific" Nature of Mandatory Minimums 31

C. Conclusion: The Guidelines and the Goals of Mandatory

Minimums 23

Chapter 5

Empirical Study of Mandatory Minimums 25

A. Methodology 36

B. The Use of Statutes Carrying Mandatory Minimum Sentencing

Provisions 3g

VI
C. Profile of Defendants Sentenced under Mandatory Minimum

Provisions with Comparisons to the General Defendant Population . . 48

D. Criminal Justice Processing and Plea Practices 53

Overview of Case Processing

Charging Patterns 57

Plea/Conviction Patterns 58

Motions for Substantial Assistance 59

Sentencing 59

E. Impact of Mandatory Minimums on Reducing Unwarranted

Sentencing Disparity 61

Circuit Variations 61

Offense Variations 65

Relationships of Defendant Characteristics to Case Processing and

Sentencing 76

Sex Variations 76

Race Variations 76

Citizenship Variations 82

Age Variations 82

F. Sentence Severity under Sentencing Guidelines and Mandatory

Minimum Provisions 86

G. Summary of Empirical Findings 89

Chapter 6

The Impact of Mandatory Minimum Sentences

on the Federal Criminal Justice System 90

vii
A. Resolution of the Judicial Conference of the United States 90

B. Recommendations of the Federal Courts Study Committee 90

C. Litigation Regarding Mandatory Minimum Sentences 91

D. Sentencing Commission Evaluation Interviews: Views from the

Field 92

Method 92

Judges' Views on the Impact of Mandatory Minimum Sentencing .. . 93

Assistant U.S. Attorneys' Views on the Impact of

Mandatory Minimum Sentencing 96

Defense Attorneys' Views on the Impact of Mandatory Minimum

Sentencing 101

Probation Officers' Views on the Impact of Mandatory Minimum

Sentencing 104

Conclusions 107

E. Preliminary Sentencing Commission Survey Results: Additional

Views from the Field 109

F. Impact of Mandatory Minimum Statutes on Federal Prison

Population 112

Historical Overview of Prison Impact Projections H 2

Impact of Mandatory Minimum Provisions on the Federal Prison

Population, 1990 H 5

Chapter 7

Alternative Methods by which Congress Can Influence

Sentencing Policy within a Guidelines Framework

A. Formal and Informal Avenues Prior to Guidelines 118

Vll l
B. New Approaches in a Guidelines Era 119

Changes in Statutory Maximums, Accompanied by Expressed

Congressional Intent for Guideline Responses 119

Specific Statutory Directives to the Commission 120

General Statutory Directives to the Commission 122

C. Analysis, Reporting and Amendment as Appropriate

Directives 123

D. Conclusion 124

IX

Chapter 1

Introduction: The Statutory Directive

and Organization of this Report

This Report to Congress is submitted by the United States Sentencing Commission. The Sentencing

Commission was created by the Sentencing Reform Act of 1984, and its authorities and duties are

set out in chapter 58 of title 28, United States Code.

The Sentencing Commission's primary function is to "establish sentencing policies and practices for

the federal criminal justice system," 28 U.S.C. § 991 (b), through a system of guidelines that

prescribes the appropriate form and severity of punishment for offenders convicted of federal crimes.

See 28 U.S.C. § 994.

As required by 28 U.S.C. § 991 (b), the sentencing guidelines promulgated by the Sentencing

Commission are intended to:

• Promote the purposes of sentencing enumerated in 18 U.S.C. § 3553(a)(2); briefly, these

purposes are just punishment, deterrence, incapacitation, and rehabilitation;

• Provide certainty and fairness in meeting the purposes of sentencing by avoiding

unwarranted disparity among offenders with similar characteristics convicted of similar

conduct, while permitting sufficient judicial flexibility to take into account relevant

aggravating and mitigating factors; and

• Reflect, to the extent practicable, advancement in the knowledge of human behavior as

related to the criminal justice process.

The Sentencing Commission submits this Report to Congress pursuant to its general authority under

28 U.S.C. § 995(a)(20),1 and, more specifically, to the statutory directive contained in section 1703

of Public Law 101-6472 (hereafter the "statutory directive") requiring a report on mandatory

minimum sentencing provisions. Subsection (b) of the statutory directive requires that this Report

include the following:

1) a compilation of all mandatory minimum sentencing provisions in Federal law;

Section 995(a)(20) of title 28, United States Code, provides that the Commission shall have authority to "make

recommendations to Congress concerning modification or enactment of statutes relating to sentencing, penal, and

correctional matters that the Commission finds to be necessary and advisable to carry out an effective, humane and

rational sentencing policy."

2

104 Stat. 4846.
2) an assessment of the effect of mandatory minimum sentencing provisions on the goal

of eliminating unwarranted sentencing disparity;

3) a projection of the impact of mandatory minimum sentencing provisions on the

Federal prison population;

4) an assessment of the compatibility of mandatory minimum sentencing provisions and

the sentencing guidelines system established by the Sentencing Reform Act of 1984;

5) a description of the interaction between mandatory minimum sentencing provisions

and plea agreements;

6) a detailed empirical research study of the effect of mandatory minimum penalties in

the Federal system;

7) a discussion of mechanisms other than mandatory minimum sentencing laws by

which Congress can express itself with respect to sentencing policy, such as:

A) specific statutory instructions to the Sentencing Commission;

B) general statutory instructions to the Sentencing Commission;

C) increasing or decreasing the maximum sentence authorized for particular

crimes;

D) Sense of Congress resolutions; and

8) any other information that the Commission would contribute to a thorough assessment

of mandatory minimum sentencing provisions.

To meet the objectives of the statutory directive, this Report is organized in the following

manner. Chapter 2 of the Report provides an overview of mandatory minimum sentencing in the

federal criminal justice system, including a brief history of the development of this approach to

sentencing and a description of the status of mandatory minimums today. Chapter 2 is intended

to provide background helpful to an understanding of the analysis presented in later chapters.

Chapter 3 of the Report describes the advent of the federal sentencing guidelines system

established by the Sentencing Reform Act of 1984 — a congressionally chartered approach to

determinate sentencing that is distinct from mandatory minimum sentencing provisions. This

chapter lays a foundation for Chapter 4 which offers a comprehensive analysis of the

compatibility of mandatory minimum sentencing provisions and the federal sentencing guidelines

system, as called for by subsection (b)(4) of the statutory directive. In providing a comparison of

these two approaches to determinate sentencing, Chapter 4 discusses implications relating both

to the goal of eliminating unwarranted sentencing disparity, as called for by subsection (b)(2) of

the statutory directive, and to the operation of the plea process, as called for by subsection
Chapter 5 of the Report provides a detailed empirical study of mandatory minimum sentencing

as required by subsection (b)(6) of the statutory directive. This chapter analyzes historical

trends in the use of mandatory minimum provisions, provides a profile of defendants convicted of

offenses carrying mandatory minimum penalties, and examines the use of mandatory minimum

charges in the plea process. The analysis in Chapter 5 relating to plea bargaining provides the

principal means by which the Report satisfies the requirement in subsection (b)(5) of the

statutory directive (requiring analysis of the impact of mandatory minimums on plea agreements).

Chapter 5 also presents key analyses relating to the issue of how mandatory minimums may

affect unwarranted sentencing disparity, as required by subsection (b)(2) of the statutory

directive.

Chapter 6 provides a range of information helpful to an understanding of the impact of

mandatory minimums on the federal criminal justice system. Included in this chapter are a

synopsis of views from the Judicial Conference of the United States and a description of findings

by the congressionally chartered Federal Courts Study Committee. Also presented in Chapter 6

are the results of extensive interviews conducted by the Sentencing Commission with the

principal actors in the federal criminal justice system ~ judges, assistant United States attorneys,

assistant federal defenders and other defense attorneys, and probation officers ~ regarding their

views on mandatory minimum sentencing. The detailed information provided through these

interviews is supplemented by a preliminary survey of these key criminal justice professionals.

Finally, Chapter 6 presents an assessment of the impact of mandatory minimum sentencing

provisions on the federal prison population, as required by subsection (b)(3) of the statutory

directive.

Chapter 7 presents an analysis of methods Congress may employ to effect sentencing policy other

than through enactment of mandatory minimums. This chapter focuses on new alternatives

available to Congress in an era of guidelines sentencing and assesses the general merits of each

alternative approach. Chapter 7 is intended to meet the requirement of subsection (b)(7) of the

statutory directive.

This Report contains numerous appendices. Appendix A provides a listing of the mandatory

minimum sentencing provisions in effect today, as required by subsection (b)(l) of the statutory

directive. Other appendices, referenced in the text of the Report, provide information the

Sentencing Commission believes may be useful to a thorough understanding of the underlying

issues.
A Note About Terminology

As used in this Report, "mandatory minimums," "mandatory minimum sentencing provisions,"

and related terms refer to statutory3 provisions requiring the imposition of at least a specified

minimum sentence when criteria specified in the relevant statute have been met. Criteria

requiring imposition of minimum sentences vary. For example, some mandatory sentences are

triggered by offense characteristics, such as an amount of drugs or where the drugs were sold.

Others are triggered by offender characteristics, such as a prior conviction for the same offense,

or by victim characteristics, such as the age of the person to whom drugs were sold. Under

some statutes, a mandatory prison term is only required when the court otherwise determines to

impose a sentence ot imprisonment.

The operation of mandatory sentencing provisions also varies. Most mandatory minimum

provisions are found within a statute proscribing a particular offense and serve as one feature of

the overall penalty scheme for that offense. For example, under 21 U.S.C. § 841(b)(l)(A),

distribution of certain quantities of drugs is punishable by a prison term of ten years to life. In

this instance, the mandatory minimum is ten years but the sentence could be higher.

Other statutes provide for what might be called a "flat" mandatory sentence. These provisions

typically, though not necessarily, operate as sentence "enhancements" or "add-ons." For

example, 18 U.S.C. § 924(c) requires an unvarying five-year sentence when a defendant is

convicted of using a firearm during a "crime of violence" or "drug trafficking crime." The

mandatory minimum in this instance is "flat" in the sense that the five-year term is the only

sentence that may be imposed for the section 924(c) offense. The section 924(c) penalty tends

to operate as an "enhancement" or "add-on" in the sense that a section 924(c) violation by

definition occurs in connection with an underlying offense (although a defendant need not be

convicted of that underlying offense). If a conviction is obtained for both the underlying offense

and a section 924(c) count, the section 924(c) penalty must be made consecutive to the sentence

for the underlying offense.

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. Although this

distinction is commonly understood, there appears to be sufficient confusion among some observers that the distinction

warrants note.

4

See, ££., 21 U.S.C. §§ 841, 845a, respectively.

5

See, e&, relevant penalties in 21 U.S.C. §§ 841(b)(l)(A), 845b, respectively.

'See, e.g., 15 U.S.C. § 1245.

4
Chapter 2

An Overview of Mandatory Minimums

in the Federal Criminal Justice System

A. The Development of Mandatory Minimum Sentencing Provisions

Mandatory minimum sentences are not new to the federal criminal justice system. As early as 1790,

mandatory penalties had been established for capital offenses.7 In addition, at subsequent intervals

throughout the 19th Century, Congress enacted provisions that required definite prison terms,

typically quite short, for a variety of other crimes.8 Until relatively recently, however, the

enactment of mandatory minimum provisions was generally an occasional phenomenon that was not

comprehensively aimed at whole classes of offenses.

A change in practice occurred with the passage of the Narcotic Control Act of 1956,10 which

mandated minimum sentences of considerable length for most drug importation and distribution

offenses. Explaining its rationale for the bill, the Senate Judiciary Committee endorsed the following

passage from the report of the President's Interdepartmental Committee on Narcotics:

[Tjhere is a need for the continuation of the policy of punishment of

a severe character as a deterrent to narcotic law violations. [The

committee] therefore recommends an increase of maximum sentences

for first as well as subsequent offenses. With respect to the

mandatory minimum features of such penalties, and prohibition of

suspended sentences or probation, the committee recognizes

objections in principle. It feels, however, that, in order to define the

gravity of this class of crime and the assured penalty to follow, these

features of the law must be regarded as essential elements of the

7

See §3, 1 Stat. 112, 113 (1790). Many capital offenses were originally only punishable by death. In the late

19th Century, Congress provided that many of these offenses could alternatively be punished by life imprisonment.

See §1, 29 Stat. 487.

Approximately a dozen provisions that date back to the 1800's remain on the books today. These provisions

generally require mandatory prison terms of three months or less for an assortment of offenses ranging from refusing to

testify before Congress, see 2 U.S.C. § 192, to the failure to report seaboard saloon purchases. See 19 U.S.C. § 283.

'Throughout the first half of this century, Congress continued to adopt mandatory minimum provisions in a

piecemeal fashion. During this period, for example, short prison terms were made mandatory for disobeying various

orders, see, ejj., 7 U.S.C. §§ 13a, 13b, 195, and somewhat longer sentences (one to two years) were made applicable

to a smattering of economic crimes such as commodities price fixing, see 12 U.S.C. § 617, and bank embezzlement.

See 12 U.S.C. § 630.

10Pub. L. No. 84-728, 70 Stat. 651 (1956).
desired deterrents, although some differences of opinion still exist

regarding their application to first offenses of certain types.

The 1956 Act provided mandatory ranges within which the court was required to select a specific

sentence. As with all mandatory minimums, the sentence imposed could not be suspended or

reduced. Furthermore, the legislation prohibited the applicability of parole for covered offenses.

For example, the sale of heroin was made punishable under the Act by a term of imprisonment of

from five to ten years for a first conviction, ten to 30 years imprisonment for a second conviction,

and by life imprisonment or death for a third or subsequent conviction. Enhanced penalties were

prescribed for particular offense characteristics such as the sale of narcotics to a person under the

age of 18. The enhancement for this conduct was a minimum penalty of ten years imprisonment

and a maximum of life imprisonment or death.13

In 1970, Congress drew back from the comprehensive application of mandatory minimum provisions

to drug crimes enacted 14 years earlier. Finding that increases in sentence length "had not shown

the expected overall reduction in drug law violations,"14 Congress passed the Comprehensive Drug

Abuse Prevention and Control Act of 197015 that repealed virtually all mandatory penalties for

drug violations. While sponsors of the legislation indicated a particular concern that mandatory

minimum sentences were exacerbating the "problem of alienation of youth from the general

society,"16 other factors contributed to the general concern. Some argued that mandatory penalties

hampered the "process of rehabilitation of offenders" and infringed "on the judicial function by not

allowing the judge to use his discretion in individual cases."17 Others argued that mandatory

minimum sentences reduced the deterrent effect of the drug laws in part because even prosecutors

viewed them as overly severe:

The severity of existing penalties, involving in many instances

minimum mandatory sentences, have led in many instances to

reluctance on the part of prosecutors to prosecute some violations,

where the penalties seem to be out of line with the seriousness of the

offenses. In addition, severe penalties, which do not take into

account individual circumstances, and which treat casual violators as

n

S. Rep. No. 1997, 84th Cong., 2d Sess. 6 (1956).

12Narcotic Control Act of 1956, Pub. L. No. 84-728, Title I, Sec. 103. 70 Stat. 651, 653-55 (1956).

13]d., Sec. 107.

14S. Rep. No. 613, 91st Cong., 1st Sess. 2 (1969).

15Pub. L. No. 91-513, 84 Stat. 1236 (1970).

16Id.

17Id.
severely as they treat hardened criminals, tend to make conviction

somewhat more difficult to obtain.18

In any case, "[t]he main thrust of the change in the penalty provisions [of the 1970 Act was] to

eliminate all mandatory minimum sentences for drug law violations except for a special class of

professional criminals."19

Despite this pulling back from mandatory minimum sentences, a shift in attitude toward sentencing

was underway that was to lay the groundwork for new rounds of mandatory minimums in the state

and federal systems during the 1980's. To understand that shift, however, it is first necessary to

understand how the criminal justice community has tended to view prisons historically.

For much of this century a dominant view in the field of corrections was that prisons existed

primarily to "cure" and rehabilitate inmates.20 As a result, courts and parole and correctional

authorities had virtually unfettered control over the amount of time an offender served in prison.

Courts were expected to use their discretion to assess an offender's potential for rehabilitation;

parole authorities were to use their discretion to evaluate the progress the offender actually made;

and correctional authorities dictated the amount of sentence reduction an offender might receive due

to "good" behavior while in prison.

Over the past 20 years or so, this approach to sentencing has become subject to gradual but

increasing criticism. Critics posited that rehabilitation was difficult to accomplish and measure and

that wide-open judicial discretion and parole actually exacerbated the problems of controlling crime.

They urged that a system of determinate sentencing would increase sentencing effectiveness by

requiring sentences that are more certain, less disparate, and more appropriately punitive.21

This shift in attitude toward sentencing took legislative form in two ways during the 1980's. In

1984, after nearly a decade of bipartisan effort, Congress enacted the Sentencing Reform Act of

1984.22 This law established the United States Sentencing Commission and directed it to develop

an unprecedented body of laws to regulate federal sentencing: the federal sentencing

guidelines.23 The second approach lawmakers took was to renew support for mandatory minimum

18H. Rep. No. 1444, 91st Cong., 2d Sess. 11 (1970).

19S. Rep. No. 613, 91st Cong., 1st Sess. 2 (1969). Mandatory penalty provisions for the Continuing Criminal

Enterprise offenses, see 21 U.S.C. § 848, were in fact strengthened in the 1970 Act.

a discussion of the rehabilitative view toward prisons, see Nagel, "Foreword: Structuring Sentencing

Discretion: The New Federal Sentencing Guidelines," 80 J. Crim. L. & Criminology 883, 893-95 (1990).

21See id. at 895-99.

^Pub. L. No. 98-473, 98 Stat. 1837 (1984).

23The theory and approach of the Sentencing Reform Act is described in detail in Chapters 3 and 4 of this Report.

7
penalties. On the state level this trend began in New York in 1973, with California and

Massachusetts following soon thereafter. While the trend toward mandatory minimums in the states

was gradual, by 1983, 49 of the 50 states had passed such provisions/* Most states added

mandatory minimum provisions to their books piecemeal, with only a few states making

comprehensive statutory changes. Nevertheless, the shift reflected frustration with the problems of

crime and a national disillusionment with indeterminate sentencing schemes.

On the federal level, a comparable but more comprehensive trend was underway. Beginning in

1984, and every two years thereafter, Congress enacted an array of mandatory minimum penalties

specifically targeted at drugs and violent crime. In 1984, the same year Congress passed the

Sentencing Reform Act with its call for an expert Commission to study sentencing practices and

create sentencing guidelines, Congress also established mandatory minimum sentences for drug

offenses committed near schools,26 mandated prison for all serious felonies and established a

minimum one-year term of probation for less serious felonies,27 and provided sentencing

enhancements for the possession of especially dangerous ammunition during drug and violent

crimes.28 A particularly significant feature of the 1984 Act was a change made to 18 U.S.C.

§ 924(c) that provides for substantial mandatory sentencing add-ons or enhancements for the use

or carrying of a firearm during a broadly defined crime of violence.

Responding to ever-heightening public concern, the trend of targeting drug and violent crimes

to receive mandatory minimum sentences continued with the Firearm Owners' Protection Act

and the Anti-Drug Abuse Act of 1986.32 The five-year enhancement under 18 U.S.C. § 924(c)

for the use or carrying of a firearm during an offense was extended to apply when the underlying

offense was a drug crime.33 The 1986 Anti-Drug Abuse Act also contained mandatory minimum

^Tonry, Sentencing Reform Impacts, Issues and Practices in Criminal Justice 24 (1987).

Overview of Mandatory Sentences, Maryland Criminal Justice Coordinating Council, Statistical Analysis Center

Bulletin 1 (1983).

26See Pub. L. 98-473, §503(a), 98 Slat. 2069 (1984), amending 21 U.S.C. § 860 (formerly § 845a).

"See Pub. L. 98-473, §212(a)(2), 98 Stat. 1992 (1984), amending 18 U.S.C. § 3561 (b)(l).

28See Pub. L. 98-473, §1006(a), 98 Stat. 2139 (1984), adding 18 U.S.C. § 929.

^See Pub. L. 98-473, §1005(a), 98 Stat. 2138 (1984).

^See, generally, US. News and World Report, July 28, 1986, Aug. 25, 1986, Sept. 22 and 29, 1986; Time, Sept.

15 and 22, 1986; Newsweek, Sept. 22 and 29, 1986.

31Pub. L. No. 99-308, 100 Stat. 449 (1986).

32Pub. L. No. 99-570, 100 Stat. 3207 (1986).

^See Pub. L. 99-308, §104(a)(2)(A-E), 100 Stat. 456 (1986), amending 18 U.S.C. § 924(c); Pub. L. 99-570,

§1402(a), 100 Stat. 3207-39 (1986), amending 18 U.S.C. § 924(e)(l).
provisions that stiffened penalties for the offender who sold drugs to a person under age 21, 3 4

 who

employed a person under age 18 in a drug offense,35 and who possessed certain weapons.36

Most significantly, the 1986 Anti-Drug Abuse Act set up a new regime of non-parolable, mandatory

minimum sentences for drug trafficking offenses that tied the minimum penalty to the amount of

drugs involved in the offense. The Act sought to subject larger drug dealers to a ten-year mandatory

minimum for a first offense and a 20-year sentence for a subsequent conviction of the same offense.

Thus, for example, one kilogram or more of a mixture or substance containing heroin triggered the

ten-year mandatory minimum, as did five kilograms or more of a mixture or substance containing

cocaine.37

The 1986 Anti-Drug Abuse Act sought to cover mid-level players in the drug distribution chain by

providing a mandatory minimum penalty of five years. The Act triggered the five-year mandatory

minimum by weights such as 100 grams or more of a mixture or substance containing heroin, and

500 grams or more of a mixture or substance containing cocaine. A second conviction for these

offenses carried a ten-year minimum sentence.

In the Omnibus Anti-Drug Abuse Act of 1988, Congress continued to target different aspects of drug

crime. At one end of the drug distribution chain, Congress amended 21 U.S.C. § 844 to provide

a mandatory minimum of five years for simple possession of more than five grams of "crack" cocaine.

At the other end, Congress doubled the existing ten-year mandatory minimum under 21 U.S.C.

§ 848(a) for an offender who engaged in a continuing drug enterprise, requiring a minimum 20-year

sentence in such cases.

Perhaps the most far-reaching provision of the 1988 Act, however, was a change in the drug

conspiracy penalties. This change made the mandatory minimum penalties previously applicable

to substantive distribution and importation/exportation offenses also applicable to conspiracies to

commit these substantive offenses.38 Since co-conspirators in drug trafficking conspiracies have

different levels of involvement, this change increased the potential that the applicable penalties

could apply equally to the major dealer and the mid- or low-level participant.

Although early versions of the legislation contained a substantial number of mandatory minimum

provisions relating to drugs and guns, Congress ultimately limited enactment of mandatory

See Pub. L. 99-570, §1105(a), 100 Stat. 3207-11 (1986), amending 21 U.S.C. § 859 (formerly § 845).

Pub. L. 99-570, §1102, 100 Stat. 3207-11 (1986), amending 21 U.S.C. § 861 (formerly § 845b).

36See Pub. L. 99-570, §10002, 100 Stat. 3207-167 (1986), amending 15 U.S.C. § 1245. See also Pub. L. 99-

308, §104(a)(4), 100 Stat. 458 (1986), (amending 18 U.S.C. § 924(e)(l) to provide increased penalties for certain

felons and others in possession of a firearm).

^See 21 U.S.C. § 841(b)(l)(A).

38See Pub. L. 100-690, §6470(a), 102 Stat. 4377 (1988).

9
minimums in the 1990 Omnibus Crime Bill to a ten-year mandatory sentence for organizing,

39 managing, or supervising a continuing financial crimes enterprise.

B. Mandatory Minimum Penalties Today

A General Overview

Today there are approximately 100 separate federal mandatory minimum penalty provisions located

in 60 different criminal statutes.40 The sheer number of these provisions, however, creates a

somewhat misleading picture of the way in which federal mandatory minimum provisions are

applied. In practice, relatively few statutes requiring mandatory minimum sentences are used with

frequency; a considerably larger number of mandatory minimum statutes are virtually never used.

Efforts to identify the frequency with which mandatory minimum provisions have resulted in

convictions are frustrated by a lack of data. Prior to 1989, data collection efforts did not identify

specific sections within statutes of conviction, making it impossible to clearly enumerate the number

of convictions under mandatory minimum provisions. However, some idea of the extent of usage can

be gleaned by examining the number of convictions under statutes that contain mandatory minimum

sections and subsections.

Table 1 sets forth the number of cases during the period 1984-90 that were sentenced pursuant to

statutes containing mandatory minimum sentencing provisions.41 Of the 59,780 cases sentenced

under mandatory minimum statutes during this period, four statutes account for approximately

94 percent of the cases. These four statutes, 21 U.S.C. § 841 (manufacture and distribution of

controlled substances), 21 U.S.C. § 844 (possession of controlled substances), 21 U.S.C. § 960

(penalties for the importation/exportation of controlled substances), and 18 U.S.C. § 924(c)

(minimum sentence enhancements for carrying a firearm during a drug or violent crime) all involve

drugs and weapons violations. All other mandatory minimum statutes (93 percent of these statutes)

account for only six percent of the sentences imposed pursuant to mandatory minimum statutes.

More than one-half of the 60 statutes containing mandatory minimum provisions were never used

during the 1984-90 period, while six were used six or fewer times.

^See 18 U.S.C. § 225.

^Pursuant to Pub. L. 101-647, §1703(b)(l), a complete listing of these statutes is set forth in Appendix A.

41Some statutes listed in Table 1 contain both mandatory minimum and non-mandatory minimum sentencing

provisions. Since Table 1 reports cases sentenced pursuant to statutes "that contain" mandatory minimum provisions,

some cases accounted for may not have had a mandatory minimum sentence imposed. Nevertheless, Table 1 provides

a general means of gauging the frequency with which various mandatory minimum statutes are used.

For further discussion of the frequency with which these provisions are used, see Chapter 5, Section B of this

Report.

10
Table 1

NUMBER OF DEFENDANTS SENTENCED UNDER STATUTES

WITH MANDATORY MINIMUM PROVISIONS1

(1984 through 1990)

STATUTE

TOTAL

2 USC §192

2 USC § 390

7 USC § 13a

7 USC § 13b

7 USC §195

7 USC § 2024

12 USC §617

12 USC § 630

15 USC §8

15 USC § 1245

15 USC §1825

16 USC §414

18 USC §115

18 USC § 225

18 USC § 351

18 USC § 844(h)

18 USC § 924(c)

18 USC§924(e)

18 USC §929

18 USC §1091

18 USC §1111

18 USC §1114

18 USC §1116

18 USC § 1651

18 USC §1652

18 USC § 1653

18 USC §1655

18 USC §1658

18 USC §1661

YEAR

TOTAL

59,780

1

0

0

0

2

989

0

0

0

0

0

0

37

0

6

28

1,784

109

0

0

244

33

3

0

0

0

0

0

0

1984

8,353

0

0

0

0

1

227

0

0

0

.

0

0

0

.

3

6

51

-

.

52

0

1

0

0

0

0

0

0

1985

8,964

0

0

0

0

0

83

0

0

0

.

0

0

0

.

0

4

85

.

0

-

42

1

1

0

0

0

0

0

0

1986

9,919

0

0

0

0

0

37

0

0

0

0

0

0

1

.

0

2

97

0

0

-

40

6

1

0

0

0

0

0

0

1987

11,172

0

0

0

0

0

23

0

0

0

0

0

0

8

-

2

1

144

4

0

-

36

3

0

0

0

0

0

0

0

1988

11,627

0

0

0

0

1

253

0

0

0

0

0

0

9

.

0

4

302

22

0

0

31

8

0

0

0

0

0

0

0

1989

13,402

1

0

0

0

0

218

0

0

0

0

0

0

9

.

1

7

515

46

0

0

26

13

0

0

0

0

0

0

0

1990

(Jan-Aug)

10,252

0

0

0

0

0

148

0

0

0

0

0

0

10

0

0

4

590

37

0

0

17

2

0

0

0

0

0

0

0

11
STATUTE

18 USC§ 1751

18 USC §1917

18 USC§ 1992

18 USC§2113(e)

18 USC §2251

18 USC § 2251A

18 USC § 2252

18 USC § 2257

18 USC §2381

18 USC §3561

19 USC §283

21 USC § 212

21 USC § 622

21 USC § 841

21 USC § 844

21 USC § 845

21 USC § 845a

21 USC § 845b

21 USC § 848

21 USC § 9602

22 USC § 4221

33 USC § 410

33 USC §411

33 USC § 441

33 USC § 447

45 USC § 83

46 USCAppx § 1228

47 USC §13

47 USC § 220

49 USC § 11911

49 USCAppx § 1472

YEAR

TOTAL

0

0

2

57

79

0

662

0

0

0

0

0

0

38,214

10,218

168

283

36

689

6,135

0

0

0

0

0

0

0

1

0

0

0

1984

0

0

0

11

1

.

16

0

0

0

0

0

3,620

1,239

4

0

51

1,086

0

0

0

0

0

0

0

0

0

0

0

1985

0

0

1

9

8

.

68

0

0

0

0

0

4,509

1,246

4

2

.

101

815

0

0

0

0

0

0

0

0

0

0

0

1986

0

0

0

9

14

.

90

.

0

0

0

0

0

5,302

1,240

34

0

0

107

953

0

0

0

0

0

0

0

0

0

0

0

1987

0

0

1

8

12

.

139

.

0

0

0

0

0

5,892

1,813

69

7

0

121

902

0

0

0

0

0

0

0

0

0

0

0

1988

0

0

0

7

17

0

183

.

0

0

0

0

0

5,959

1,882

28

50

3

121

759

0

0

0

0

0

0

0

0

0

0

0

1989

0

0

0

11

18

0

86

-

0

0

0

0

0

7,445

1,799

13

124

16

129

936

0

0

0

0

0

0

0

0

0

0

0

1990

(Jan-Auq)

0

0

0

2

9

0

80

0

0

0

0

0

0

5,487

999

16

100

17

59

684

0

0

0

0

0

0

0

1

0

0

0

Includes cases tor which the statute refers to primary or secondary charge of conviction. Because these statutes include both

mandatory and non-mandatory sentencing provisions, defendants included on this table are sentenced pursuant to the statute,

but not necessarily the mandatory minimum provisions.

2

21 USC § 960 is the penalty statute for 21 USC §§ 952, 953, 955, 957, 959, and 960.

SOURCE: FPSSIS Data Files, 1984-1990.

12
This is not to diminish the impact of the mandatory minimum provisions in force today. As noted,

nearly 60,000 cases have been sentenced under federal statutes with mandatory minimum provisions

since 1984. In principle, it appears very likely that the mandatory minimum provisions in the four

statutes noted above are contributing to substantially longer terms served in prison than in the past

-- a result that Congress appears to have intended.42

The likely increase in time served should not be surprising due to the increased penalties provided

by statute. For example, the minimum sentence required for a first offense use of a firearm during

a drug or violent crime has evolved from none prior to 1968, to one year prior to 1984, to five years

plus the sentence for the underlying offense (which may well also carry a mandatory minimum)

thereafter. See 18 U.S.C. § 924(c). The minimum penalties for second offenses of this type have

evolved from two-year sentences prior to 1984, to ten-year add-ons prior to 1988, to 20-year add-ons

today. Enhancements for the first offense use of a machine gun have evolved from no enhancements

to 30 years in two decades. These mandatory increases would necessarily lead to increases in actual

time served. Similar trends hold for drug offense statutes.

Pending Legislation

The Violent Crime Control Act of 1991,43 which passed the Senate on July 11, 1991, includes a

substantial increase in the number of mandatory minimum provisions. In addition to the nearly two

dozen new mandatory minimum provisions in the omnibus crime bills, generally aimed at firearms

and drug offenses, there are presently about 30 bills containing mandatory minimum sentencing

provisions pending before Congress. These bills would mandate penalties ranging from six months

for certain labor violations, to life imprisonment for certain money laundering violations. A complete

list of pending44 bills containing mandatory minimum provisions is set out in Appendix B.

C. Reasons Cited in Support of Mandatory Minimums

In examining the reasons that have led to support for mandatory minimum penalties, the Sentencing

Commission conducted a comprehensive review of relevant legislative history, Executive Branch

statements, and views expressed in academic literature.45 The Sentencing Commission conducted

and subsequently analyzed field interviews with judges, assistant United States attorneys, defense

attorneys, and probation officers to better understand the perceived costs and benefits ascribed to

42A more complete treatment of the impact of mandatory minimum provisions on prisons and other aspects of the

federal criminal justice system is set forth in Chapters 5 and 6 of this Report.

43S. 1241, 102d Cong., 2d Sess., 137 Cong. Rec. 59982 (daily ed. July 15, 1991).

of the submission of this Report.

^Selected articles on mandatory minimums from academic and professional literature, along with articles from the

popular press, are listed in Appendix C.

13
mandatory minimums by those with practical federal criminal justice experience.46

 These

analyses identified six commonly-offered rationales for mandatory minimum sentencing provisions.

Retribution or "Just Deserts" Perhaps the most commonly-voiced goal of mandatory minimum

penalties is the "justness" of long prison terms for particularly serious offenses. Proponents

generally agree that longer sentences are deserved and that, absent mandatory penalties, judges

would impose sentences more lenient than would be appropriate.

Deterrence. By requiring the imposition of substantial penalties for targeted offenses, mandatory

minimums are intended both to discourage the individual sentenced to a mandatory minimum from

further involvement in crime (1^, specific deterrence) and, by example, to discourage other potential

lawbreakers from committing similar offenses (ue., general deterrence). Those supporting mandatory

minimums on deterrence grounds point not only to the strong deterrent value of the certainty of

substantial punishment these penalties are intended to provide, but also to the deterrent value of

sentence severity that these penalties are intended to ensure in the war against crime.

Incapacitation, Especially of the Serious Offender. Mandating increased sentence severity aims to

protect the public by incapacitating offenders convicted of serious crimes for definite, and generally

substantial, periods of time. Proponents argue that one way to increase public safety, particularly

with respect to guns and drugs, is to remove drug dealers and violent offenders from the streets for

extended periods of time.

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. Supporters of mandatory minimum penalties contend that they greatly reduce

judicial discretion and are therefore more fair. Mandatory minimums are meant to ensure that

defendants convicted of similar offenses receive penalties that at least begin at the same minimal

point.47

Inducement of Cooperation. Because they provide specific lengthy sentences, mandatory minimums

encourage offenders to assist in the investigation of criminal conduct by others. This is because

cooperation ~ that is, supplying information concerning the activities of other criminally involved

individuals — is the only statutorily-recognized way48 to permit the court to impose a sentence

below the length of imprisonment required by the mandatory minimum sentence.

*A detailed description of the findings of these interviews is presented in Chapter 6, Section B of this Report.

47In the past, mandatory minimum supporters argued that mandatory penalties also reduced parole discretion.

Under current federal law, sentences imposed for offenses committed on or after November 1, 1987,1 however, are no

longer subject to parole. This change in federal law and other features of the Sentencing Reform Act are discussed in

greater detail in Chapter 3 of this Report.

""See 18 U.S.C. § 3553(e).

14
Inducement of Pleas. Although infrequently cited by policymakers, prosecutors express the view that

mandatory minimum sentences can be valuable tools in obtaining guilty pleas, saving scarce

enforcement resources and increasing the certainty of at least some measure of punishment. In this

context, the value of a mandatory minimum sentence lies not in its imposition, but in its value as

a bargaining chip to be given away in return for the resource-saving plea from the defendant to a

more leniently sanctioned charge.^

49As discussed in Chapter 4, because the federal sentencing guidelines require courts to use a modified real

offense approach to sentencing (i.e., an approach that to some extent looks behind the charge to the actual facts of the

case), sentence lengths do not in all cases decrease when prosecutors drop or otherwise agree not to pursue a

mandatory minimum charge in exchange for a guilty plea.

15

Chapter 3

The Establishment of the United States

Sentencing Commission and the Advent of

Guidelines Sentencing

A. The Sentencing Reform Act and its Goals

In 1984, after more than ten years of study and debate, a strongly bipartisan Congress launched an

approach to determinate sentencing that, while sharing some common goals of mandatory minimum

sentencing, was quite different. The Sentencing Reform Act of 1984 called on the President to

appoint an expert, seven-member, full-time, bipartisan Commission to create sentencing guidelines

that would effectively and rationally channel the sentencing discretion of the federal courts.50

The overarching mandate Congress gave the United States Sentencing Commission was to produce

a guidelines system that would produce fair sentences and sharply curtail the unwarranted disparity

in federal sentencing that Congress had found "shameful."51 The reality of unwarranted

sentencing disparity was well documented. In one study conducted prior to passage of the

Sentencing Reform Act, 50 federal district court judges in the Second Circuit were given 20

identical files drawn from actual cases and were asked to indicate what sentence they would impose

on each defendant. The variations in the judges' sentences were dramatic. In a bank robbery

case, the sanctions ranged from a sentence of 18 years imprisonment and a $5,000 fine to five years

imprisonment and no fine. In an extortion case, the range of sentences was even more striking «

one judge sentenced a defendant to 20 years imprisonment and a $65,000 fine, while another

imposed a three-year prison sentence and no fine.

At the root of the problem was the fact that prior to November 1987 when the guidelines took effect,

federal judges had virtually unlimited discretion to impose any sentence that they felt was

appropriate in a given case. There were few constraints on what judges could or should consider

when sentencing, save the statutory maximum sentence imposed by law. On the other hand, while

judges wielded tremendous sentencing discretion, the potency of their sanction was often severely

diluted by a parole commission that later resentenced the defendant according to its own set of

rules.

50See generally 28 U.S.C. §§ 991 (b), 994.

51S. Rep. No. 225, 98th Cong., 1st Sess. 65 (1983).

52

 See Partridge and Eldridge, The Second Circuit Sentencing Study, A Report to the Judges 1-3 (1974). See also

S. Rep. No. 225, 98th Cong., 1st Sess. 41-44 (1983).

16
Troubled by the unfairness and unwarranted disparity that resulted from such an unstructured

system, Congress mounted a "sweeping"53 overhaul of the federal sentencing process by passing

the Sentencing Reform Act of 1984 that created the United States Sentencing Commission.

The legislation creating the Sentencing Commission identified three basic objectives:

1) Congress sought certainty and honesty in sentencing. By abolishing parole and the

indeterminate sentencing structure, the Act eliminated the need for federal judges

to second guess future actions of the Parole Commission. A system of determinate

sentencing allows a judge to sanction without fear that the sentence will be cut in

half or more at a later date. The public, too, would be able to understand that the

sentence imposed by the judge would represent the sentence the offender would

serve.

2) Congress sought uniformity in sentencing so that similar defendants convicted of

similar offenses would receive similar sentences. By enacting a law that limited the

range of possible sentences to six months or 25 percent for similarly-situated

offenders, Congress greatly reduced the ability of judges in the same or differing

jurisdictions to sentence similarly-situated offenders to very different sentences.

3) Congress sought proportionality or just punishment in sentencing by creating a

system that recognized differences between defendants and offenses and provided

appropriate sentences with those differences in mind. In the drug area, for example,

a courier whose role consisted solely of bringing drugs into the country would receive

a sentence different from that of the kingpin who organized the drug distribution ring

and received the bulk of its illicit profits.

Notably, these three overriding objectives ~ certainty, reduction in unwarranted disparity, and just

punishment ~ are rationales frequently cited by those who support enactment of mandatory

minimums. See Chapter 2, Section C of this Report. Congress also built directives into the

Sentencing Commission's enabling statute that ensure that other goals of mandatory minimum

provisions — deterrence, incapacitation of serious offenders, and cooperation with authorities —

would be fostered by the guidelines.54

B. The Sentencing Commission and the Development of the Guidelines

The U.S. Sentencing Commission, organized in late 1985, is an independent agency in the Judicial

Branch of government. The Sentencing Commission consists of seven voting members appointed by

See S. Rep. No. 225, 98th Cong., 1st Sess. 65 (1983).

^See 28 U.S.C. § 991 (b)(A) (citing 18 U.S.C. § 3553); 18 U.S.C. § 3553(a)(2)(A), (B), and (C); 28 U.S.C. §

994(h), (i), and (n).

17
the President and confirmed by the Senate and two non-voting, ex-officio members. Three of the

seven voting Commissioners must be federal judges. No more than four Commissioners may be of

the same political party.55 By statute, Commissioners hold full-time positions until November 1,

1993, at which time all Commissioners except the Chairman switch to part-time status.56

In developing its initial set of guidelines, the Sentencing Commission analyzed more than 10,500

actual cases to determine the characteristics that judges in the past had deemed relevant in the

sentencing decision. These offense and offender characteristics were used to guide the development

of the guidelines. Thus, in drafting its guidelines, the Sentencing Commission, for the most part,

provided judges with a norm predicated upon actual judicial experience. However, consistent with

its mandate to "insure that the guidelines reflect the fact that, in many cases, current sentences do

not accurately reflect the seriousness of the offense,"57 the Sentencing Commission drafted

guidelines for some offense categories (e.g., civil rights violations, many white collar offenses, drug

offenses) that increased penalties over past practice.58

The Sentencing Commission's initial guidelines were sent to the Congress on April 13, 1987, and

after six months of review became effective on November 1, 1987. The guidelines and related

sentencing provisions apply only to offenses that occur on or after this date. The Sentencing

Commission may submit guideline amendments each year to the Congress between the beginning

of a regular Congressional session and May 1. The amendments take effect automatically 180 days

after submission unless a law is enacted to the contrary.

The Sentencing Commission views the development of the guidelines sentencing system as

evolutionary. It expects, and the governing statute anticipates, that continuing research, experience,

and analysis will result in modifications and revisions to the guidelines by submission of

amendments to Congress. To this end, the Sentencing Commission is established as a permanent

agency to monitor sentencing practices in the federal courts throughout the nation.

C. Guideline Implementation

A significant body of law has developed under the Sentencing Reform Act's provisions for appellate

review of sentences. The Sentencing Commission analyzes the development of this federal law of

sentencing in order to determine areas in which guideline amendments, research, or legislative

action may be needed.

5S2S U.S.C. § 991 (a).

562S U.S.C. § 992.

^28 U.S.C. § 994(m).

Guidelines sentences in the drug area were drafted to accommodate and, to the extent possible, rationalize

mandatory minimum provisions established by the 1986 Anti-Drug Abuse Act.

18
The Sentencing Commission has established a substantial research program to assist in the

evaluation of the guidelines. A monitoring staff codes detailed sentencing information on every

sentence imposed under the guidelines, and to date has collected data on over 78,000 cases. The

Sentencing Commission uses this information to track application of the guidelines and make

informed decisions regarding possible amendments.

Implementation statistics for the 29,011 defendants sentenced under the guidelines in fiscal year

1990 show that 83.3 percent received "within-guideline" sentences as established by the court. In

7.4 percent of the cases, the court departed downward upon a government motion that the defendant

had substantially assisted authorities in the investigation or prosecution of others. The court

departed upward from the specified guideline range in 2.3 percent of the cases and downward in

the remaining 7.0 percent for aggravating or mitigating circumstances not considered by the

guidelines.59

Research by the Sentencing Commission's monitoring division indicates that in fiscal year 1990,

87.1 percent of all defendants pleaded guilty; 12.9 percent were convicted after trial. While the

proportion of guilty pleas to trials has remained relatively constant since implementation of the

guidelines, the actual number of criminal trials has increased from 6,475 in 1985 to 8,931 in 1990,

along with an increase in the overall number of criminal cases.

D. Guideline Development in the Future

As part of its mission to "establish sentencing policies and practices for the Federal criminal justice

system that . . . reflect, to the extent practicable, advancement in knowledge of human behavior as

it relates to the criminal justice process,"60 the Sentencing Commission has a long-term research

agenda. In the next few years, the Sentencing Commission will use its substantial research

authority61 to examine the effects of sentencing guidelines on the purposes of sentencing as set

forth at 18 U.S.C. § 3553(a)(2), and such topics as deterrence, recidivism, and selective

incapacitation. With the benefit of these studies, the Sentencing Commission expects to further the

significant contribution to effective federal criminal justice policy it believes the guidelines are

already making.

explained more thoroughly in Chapter 4 of this Report, a court may depart from the guidelines only if the

court finds reasons that meet a relatively narrow statutory standard. The court must state those reasons on the record,

and the departure is subject to appellate review.

t028 U.S.C. § 991(b)(l)(C).

61See generally 28 U.S.C. § 995.

62

 The purposes of sentencing as defined by statute include "the need for the sentence imposed (A) to reflect the

seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford

adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to

provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in

the most effective manner." 18 U.S.C. § 3553(a)(2).

19
Chapter 4

The Guidelines and Mandatory Minimums:

Sentencing Policies in Conflict

The previous two sections of this Report illustrate how, since 1984, Congress has pursued the goals

of certain and effective sentencing along two distinct fronts: 1) the enactment of the Sentencing

Reform Act and its creation of an expert, full-time Commission to develop a comprehensive system

of sentencing guidelines; and 2) the enactment of offense-specific mandatory minimum sentencing

statutes. The two approaches to sentencing, however, are not always easily reconciled. Although

the Sentencing Commission has consistently sought to incorporate statutory minimums into the

guidelines system in the most effective and reasonable manner possible,63 in certain fundamental

respects the general approaches of the guidelines system and mandatory minimums are

64

inconsistent/

This section of the Report details the key differences in the way in which mandatory minimums and

the federal sentencing guidelines operate and describes how the two approaches can, in some

instances, work at cross purposes.

A. The Guideline Principle of Varying Punishment in Light of Case-Specific Offense

and Offender Characteristics

As noted in Chapter 3, the Sentencing Reform Act was prompted in large measure by Congress's

concern that the lack of a comprehensive and systematic approach to sentencing in the federal

courts permitted unwarranted sentencing disparity. Congress wanted the Sentencing Commission

to reduce unwarranted sentencing disparity by developing a rational sentencing structure that would

channel judicial sentencing discretion.

Starting with the premise that treating similar offenses and similar offenders alike forms the basis

of a just and rational sentencing policy, the Sentencing Commission created guidelines that take into

account both the seriousness of the offense, including relevant offense characteristics, and important

information about the offender, such as the offender's role in the offense and prior record. Using

this information, the guidelines prescribe proportional individual sentences that, for example, punish

the recidivist criminal substantially more than the first offender, and the organizer of a criminal

^See, for example, discussion at pp. 29 (incorporation of 21 U.S.C. § 841 in Sentencing Guidelines drug quantity

tables).

"Congress has noted the potential inconsistency of mandatory minimum sentencing provisions and a system of

guidelines. See S. Rep. No. 225, 98th Cong., 2d Sess. 39, reprinted in 1984 U.S. Code Cong. & Admin. News 3182,

3358 (stating that guidelines generally can better assure "consistent and rational" sentencing policy than mandatory

minimums).

20
enterprise substantially more than his minions. To understand how the guidelines system functions,

and how that system contrasts with mandatory minimum sentencing, a description of the way in

which a sentence is determined under the guidelines is helpful.

Step One: Determining the Base Offense Level

The starting point for sentencing an individual defendant under the guidelines system is the

determination of the base offense level. Federal law contains over 2,000 separate criminal offenses.

Rather than construct a complex and potentially unmanageable system containing a separate

guideline for each offense, the Sentencing Commission created generic guidelines that group offenses

by offense type. The guidelines carefully rank these offense categories according to severity by

assigning them base offense levels, varying from 4 to 43. In this way the guidelines not only ensure

that like offenses are treated alike, but also that a logical, proportionate relationship exists among

offenses according to their relative seriousness.

Step Two: Examining the Specific Offense Characteristics

After determining the base offense level, the court determines whether certain attributes common

to that type of offense are present in the case. These specific offense characteristics are specified

in the applicable guideline and help establish the seriousness of the offense. When present in a

case, specific offense characteristics require an adjustment in the offense level. The robbery

guideline provides, for example, a 3-level increase if a firearm was possessed, a 5-level

increase if a firearm was discharged, a 6-level increase if life-threatening bodily injury occurred,

and increases of zero to seven levels depending on the value of the property taken.

Similarly, the fraud guideline directs the sentencing court to consider specific offense characteristics

and a range of adjustments relevant to that offense. Any fraud that results in loss to the victim

exceeding $2,000 requires an increase in the offense level corresponding to the amount of loss

caused. Evidence of more than minimal planning, creating a risk of serious bodily injury, or

6SThus, to cite one of countless examples, the base offense level for rape is higher than the base offense level for

nonsexual assault, which, in turn, is higher than that for a threatening communication.

average, each offense level increment changes the sentence by about 12 percent. Thus, a 4-level

enhancement equates to about a 50 percent increase in sentence; an 8-level enhancement effectively doubles the

sentence.

amendment submitted to Congress on May 1, 1991, to take effect November 1, 1991, increases this

enhancement to five levels.

amendment submitted to Congress on May 1, 1991, to take effect November 1, 1991, increases this

enhancement to seven levels.

21
jeopardizing the safety and soundness of a financial institution also require increases of varying

amounts.^9

Step Three: Applying the Chapter Three Adjustments

After determining the base offense level and the specific offense characteristics identified by the

relevant guideline for that type of offense, the court considers whether certain generic adjustments

to the offense level apply.70 The application of these adjustments (called "Chapter Three

adjustments" because they appear in Chapter Three of the Guidelines Manual) is not limited to a

particular offense or group of offenses, but rather can apply to any offense. Chapter Three

adjustments act to further individualize the sentence. They require determinations, for example, as

to whether the offense involved a vulnerable victim (2-level addition to the base offense level);

whether the victim was a law enforcement or corrections officer (a 3-level increase); and whether

the defendant willfully obstructed justice (a 2-level increase).

Importantly, Chapter Three adjustments require the court to consider the defendant's role in the

offense. A finding that the defendant played an aggravating role in the offense (e.g.. organizing a

criminal activity) requires an increase in the offense level of up to four levels. A finding that a

defendant played a reduced role in the offense results in a decrease of up to four levels. The

adjustments for role in the offense assure, for example, that the kingpin who organized a drug

distribution ring and received the bulk of its illicit profits will receive a substantially greater

sentence than a one-time drug courier or "mule," who had limited involvement in the crime.

Step Four: Counting Multiple Counts

Because of a potential for irrational and disproportionate results absent detailed guidance when a

defendant is to be sentenced for multiple counts of conviction, the guidelines carefully prescribe

specific rules for sentencing in multiple count cases.71 One potential problem in multiple count

cases is how to increase the sentence when the multiplicity of counts does in fact reflect multiple

harms. The Guidelines Manual describes this problem as follows:

The difficulty is that when a defendant engages in conduct that

causes several harms, each additional harm, even if it increases the

extent to which punishment is warranted, does not necessarily

warrant a proportionate increase in punishment. A defendant who

assaults others during a fight, for example, may warrant more

<»U.S.S.G.

^U.S.S.G. Ch. 3.

71The danger of irrational results when sentences rigidly depend on the number of counts charged was considered

by Congress in the Commission's enabling legislation. See 28 U.S.C. § 994(1).

22
punishment if he injures ten people than if he injures one, but his

conduct does not necessarily warrant ten times the punishment.

The guidelines resolve this problem by directing that incremental amounts for each offense involving

a distinct harm be added to the base offense level that corresponds to the most serious offense in

the group. Thus, for example, two separate bank robberies will not result in a doubling of the

offense level for one bank robbery, but will generally require a 2-level increase in the applicable

offense level. Grouping counts in this manner increases punishment where there is increased harm

and culpability, but avoids disproportionate punishment when more than one count has been

charged.

A second problem with multiple count cases that the guidelines address occurs when multiple

counts do not particularly reflect the presence of multiple harms. Some offenses, although

technically distinct under federal law, are so closely related that they result in essentially the same

harm. Embezzling money from a bank and falsifying the related records, for example, are two ways

federal statutory law recognizes what can be essentially the same criminal conduct. In cases such

as these, the guidelines group the offenses and apply the offense level for the most serious offense

without adding levels for the closely-related offenses. In this way the seriousness of the offense is

captured but without artificial increases for non-existent additional harms.

In other types of cases, such as drug distribution, it is the total quantity of drugs distributed that

should influence the sentence, and not whether the government elects to charge the offense as

several counts of distribution or one larger conspiracy. The guideline grouping rules assure this

desired result as well.

Step Five: Acceptance of Responsibility

The sentencing guidelines credit the defendant for certain post-offense conduct. If the defendant

"demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal

conduct," the sentencing court may reduce the base offense level by two levels.73 The guidelines

detail the possible actions an offender can take that indicate acceptance of responsibility:

(a) voluntary termination or withdrawal from criminal conduct or associations;

(b) voluntary payment of restitution prior to adjudication of guilt;

(c) voluntary and truthful admission to authorities of involvement in the offense and related

conduct;

(d) voluntary surrender to authorities promptly after commission of the offense;

(e) voluntary assistance to authorities in the recovery of the fruits and instrumentalities of the

offense;

72U.S.S.G. Ch. 1, intro. comment, at p. 1.8.

^U.S.S.G. §3El.l(a).

23
(f) voluntary resignation from the office or position held during the commission of the offense;

and

(g) the timeliness of the defendant's conduct in manifesting acceptance of responsibility.74

Because of the judge's unique ability to assess this factor, the decision whether to award credit for

acceptance of responsibility is left more substantially to the judge's discretion than other guideline

sentence determinants for which judicial fact-finding is key but the operation of discretion is more

limited. Guideline commentary states that "[e]ntry of a plea of guilty prior to the commencement

of trial combined with truthful admission of involvement in the offense and related conduct will

constitute significant evidence of acceptance of responsibility . . . ."75

Step Six: Assessing the Defendants Criminal History

Because a defendant's prior record is relevant to such important sentencing goals as general

deterrence, just punishment, and the need to protect the public from the defendant's propensity to

commit crimes,

 6 the guidelines evaluate criminal history with some care and complexity. Points

are assigned to account for the severity of the prior criminal conduct (e.g., three points for more

serious offenses committed as an adult, down to one point for less serious offenses resulting in

probation). Additional points are added if the defendant committed the offense within two years

after release from imprisonment or while under any criminal justice sentence, including probation,

work release, or escape status. These factors reflect a need for heightened punishment due to the

recency of the prior criminal conduct and the defendant's disregard for the earlier sanction.

The guidelines account for patterns of prior criminal conduct that warrant especially serious

treatment. When a defendant is at least 18 years old at the time of the current offense, the offense

is a violent felony or involved a controlled substance, and the defendant has at least two prior felony

convictions involving a violent crime or a controlled substance, the defendant qualifies as a career

offender.77 The guidelines establish a special set of offense levels for the career offender that are

calibrated, in conjunction with the highest criminal history category, to correspond to the maximum

sentences authorized by statute for the instant offense.

After the defendant's entire record has been examined and the appropriate points assigned, the

points are converted into criminal history categories ranging from I to VI. The career offender is

always assigned the highest criminal history category, Category VI.

74U.S.S.G. §3E1.1, comment, (n. 1).

75U.S.S.G. §3E1.1, comment, (n.3).

76U.S.S.G. Ch. 4, intro. comment.

77The applicable guideline, §4B1.1, implements a congressional directive. See 28 U.S.C. § 994(h); U.S.S.G.

§4B1.1. Federal law and the sentencing guidelines also require enhanced sentences for the armed career criminal.

See 28 U.S.C. § 924(e); U.S.S.G. §4B1.4.

24
Step Seven: Determining the Applicable Sentencing Range

To determine the sentencing range for the particular offense involved, the sentencing judge turns

to a sentencing table. Offense levels are set out in the vertical column of the table and criminal

history categories are displayed in the horizontal column, forming a grid that contains the various

sentencing ranges. By matching the applicable offense level and criminal history category, the court

finds the guideline sentencing range that applies to the individual offender before the court. The

court has discretion to pick the sentence from any point in the range. The ranges are relatively

narrow. By statute, the maximum of a sentencing range providing for imprisonment may not exceed

the minimum by more than 25 percent.

Summary

In sum, the sentencing guidelines seek to address all key aspects of the sentencing decision where

the unguided judicial discretion of the past allowed unwarranted disparities to occur.

• Similar offenses are grouped together and assigned the same offense level, thus minimizing

the chance that sentences will differ simply because a defendant is charged and convicted

under one statute rather than another.

• Specific offense characteristics are considered to help determine the seriousness of the

particular offense.

• Chapter Three adjustments are made to further gauge offense seriousness and individualize

the punishment. Importantly, the defendant's role in the offense is measured to assure that

the sentence properly accounts for the defendant's degree of culpability, and incremental

increases are provided for multiple convictions involving significant additional criminal

conduct.

• To credit the individual defendant who is truly remorseful and accepts responsibility for his

or her crime (usually manifested by a truthful admission as part of a guilty plea), the

guidelines permit a consistent, 2-level adjustment in the appropriate circumstances.

And, in order to increase punishment when the defendant has a significant record of prior

criminal activity or qualifies as a career criminal, the guidelines provide the means for

proportionate increases in the sentence that reflect these reasons as well.

The guidelines provide a range of appropriate sentences within which the sentencing judge

may consider such factors as family ties, community involvement, and degree of

sophistication. As sentence exposure increases at the higher offense levels, the 25 percent

7828 U.S.C. § 994(b)(2). A range of six months is permitted if six months exceeds the 25 percent difference. At

the upper end of the imprisonment scale, if the minimum of the range is at least 30 years, the maximum may be life

imprisonment.

25
within-range differential can result in considerable latitude for judges. For example, at level

30 there is a 24-month difference between the top and bottom of the guideline range.

Finally, as Congress expressly intended,79 the guidelines system recognizes that doing justice in

individual cases requires a margin of flexibility. Even the most finely-tuned system cannot

anticipate every factual situation. Accordingly, the sentencing judge retains flexibility through the

guidelines' departure provisions. In the unusual instance that the sentencing judge finds "an

aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into

consideration" in the guidelines, the judge, for valid reasons stated in open court, may depart from

the otherwise applicable guideline range, subject to review on appeal.

Through these various mechanisms, the guidelines seek to provide for sentences that are certain,

substantial, proportionate, and fair. The guidelines represent a sophisticated, comprehensive,

calibrated system that begins with a specified base penalty for particular offenses and modifies

above and below for a variety of factors, without whose consideration, disparity would result.

B. Mandatory Minimum Sentencing Contrasted

The sentencing guidelines and mandatory minimum sentences have in common important objectives.

For example, both seek to provide appropriately severe and certain punishment for serious criminal

conduct. In numerous other respects, however, mandatory minimums are both structurally and

functionally at odds with sentencing guidelines and the goals the guidelines seek to achieve. This

section will examine three aspects of mandatory minimums in which they starkly conflict and

contrast with sentencing guidelines. In general:

• Whereas the guidelines provide a substantial degree of individualization in determining the

appropriate sentencing range for "each category of offense involving each category of

defendant,"®0 mandatory minimums typically focus on one indicator of offense seriousness

(e.g., the quantity of controlled substance involved in a trafficking offense ), and perhaps

one indicator of criminal history (e.ff., whether the defendant at any time was previously

convicted of a felony drug offense82). In short, mandatory minimums employ a relatively

narrow, tariff-like approach, under which the same sentence may result for widely divergent

cases.

TOSee 18 U.S.C. § 3553(b); 28 U.S.C. § 991(b)(l)(B).

"28 U.S.C. § 994(b)(l).

8121 U.S.C. § 841 (b).

26
Whereas the guidelines provide graduated, proportional increases in sentence severity for

additional misconduct or prior convictions, mandatory minimums tend to result in sharp

differentials or cliffs in sentences based upon small differences in offense conduct or

criminal record.

Whereas the guidelines, under a modified real offense approach to sentencing, require

enhancement of the sentence whenever a relevant aggravating factor (e^., use of a firearm

in connection with a drug trafficking offense) is present in the case,83 mandatory

minimums generally are effective in increasing punishment for specific offense

characteristics only when the prosecutor charges and the defendant is convicted of the

specific statutory offense containing the mandatory minimum. In other words, mandatory

minimums are basically a charge-specific approach to sentencing. The guidelines are

substantially less so.84

Each of these three aspects warrants closer examination.

The "Tariff* Effect of Mandatory Minimums

Years ago, Congress used tariff sentences in sanctioning broad categories of offenses, ranging from

quite serious crimes (e.g., homicide) to fairly minor property theft. This tariff approach has been

rejected historically primarily because there were too many defendants whose important distinctions

were obscured by this single, flat approach to sentencing. A more sophisticated, calibrated approach

that takes into account gradations of offense seriousness, criminal record, and level of culpability

has long since been recognized as a more appropriate and equitable method of sentencing.

As detailed in Section A of this chapter, sentencing guidelines look to an array of indicators to

determine offense seriousness, including the offense of conviction, any relevant quantity determinant

(e.g.., 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.

courts have generally held that a preponderance of the evidence standard is appropriate for making such

findings under the sentencing guidelines.

MThe Sentencing Commission considered and experimented with a "charge offense" approach to sentencing; Le.,

sentences based "upon the conduct that constitutes the elements of the offense for which the defendant was charged

and of which he was convicted." (See, general discussion, U.S.S.G. Ch. 1, intro. comment, at 1.5.) The Commission

found the charge offense system lacking in several respects; e^g., it transfers discretion to the prosecutor where the

prosecutors' decisions with respect to charging are generally private and unreviewable, and, generally, the sentence

under this approach can rise and fall on the number of counts charged and convicted.

27
The mandatory minimums set forth in 21 U.S.C. § 841 (b), applicable to defendants convicted of

trafficking in the more common street drugs, are illustrative.**5 For those convicted of drug

trafficking under this section, one offense-related factor, and only one, is determinative of whether

the mandatory minimum applies: the weight of the drug or drug mixture. Any other sentenceindividualizing factors that might pertain in a case are irrelevant as far as the statute is concerned.

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.

Moreover, the mandatory minimum provisions in this statute throw a functional block in front of

guideline factors ~ in particular, a defendant's reduced role in the offense and acceptance of

responsibility ~ that might otherwise appropriately reduce the sentence below the applicable

mandatory minimum. By requiring the same sentence for defendants who are markedly dissimilar

in their level of participation in the offense and in objective indications of post-offense reform, these

mandatory minimum provisions therefore short-circuit the guidelines' design of implementing

sentences that seek to be proportional to the defendant's level of culpability and need for

punishment.

By failing to take into account mitigating factors, mandatory minimums may have other unintended

effects on the criminal justice system. For example, the failure of mandatory minimums to give

credit for acceptance of responsibility may help explain why, as found by the empirical study

described in Chapter 5, the plea rate is considerably lower for mandatory minimum cases than the

plea rate generally. By failing to account for some defendants' reduced roles in the offense,

mandatory minimums may be placing greater demands on prison resources than is necessary to

satisfy the purposes of sentencing for these individuals.

It might be argued that the broad-brush nature of mandatory minimums is necessitated by the

proliferation of drugs and violent crimes in this country and that all offending actors, regardless of

culpability, require tough sanctions. Accordingly, one might argue, if Congress established by

statute the minimum sentence that should be imposed for an offense, the Sentencing Commission

should select a starting point in the guidelines (base offense level) high enough that a defendant

receiving all applicable guideline mitigators would have a guideline range at or above the mandatory

minimum.

Generally, however, the Sentencing Commission did not design the guidelines in this manner for

both policy and structural concerns. From the policy standpoint, the legislative history associated

with enactment of the drug mandatory minimums suggests that Congress did not set the mandatory

^Generally, heroin, cocaine, cocaine base ("crack"), LSD, PCP, marihuana, and methamphetamine.

Chapter 6, Section 6 provides a discussion of the impact of mandatory minimums on federal prison populations.

28
minimum sentences with the least severe case in mind.87

 All available information suggests that

the ten- and five-year mandatory minimums were aimed at the high- and mid-level managers,

respectively.

Additionally, from a structural standpoint, the Sentencing Commission found that, while it

theoretically could design a structure that would equate the lowest guideline sentence with the

mandatory minimum, adherence to that approach would produce in typical cases sentences that

would reach or exceed the statutory maximum and, thus, there would be little if any opportunity for

consideration of aggravating factors.88 The Sentencing Commission therefore concluded that a

more reasonable, rational, and proportional approach to the sentencing of drug offenders would use

the mandatory minimum penalties as starting points to determine the base offense level. As

noted, however, this structure means that the mandatory minimum provisions of 21 U.S.C. § 841 will

nevertheless trump the mitigation scheme of the guidelines in the least serious cases.

Beyond the potential conflict with the proportional structure provided by the guidelines, the

mandatory minimum tariff approach precludes any individualizing flexibility for the sentencing

judge. The built-in calibration and flexibility of the guidelines allows for potential, inherent

imperfections in any structured sentencing scheme that result from an inability to consider every

potential factor in each offense category. The narrow tariff approach does not allow for error or

extenuating circumstances, rather it provides a single, flat sentence for each defendant.

Additionally, mandatory minimums may intrude and distort the guidelines' scheme of assessing and

calibrating a defendant's criminal history in a manner that is more appropriately related to the

principles of just punishment, deterrence, and incapacitation.90 Whereas the guidelines'

assessment of criminal history is multi-dimensional, mandatory minimums typically look to only one

or two indicators of criminal history ~ for example, whether the defendant had a prior felony

conviction for a crime of violence or drug offense. The relative seriousness of the prior conviction

See, e.g., Chapter 2, Section A (discussion of mandatory minimums in 1986 Drug Abuse Act).

case of a deck hand on a boat containing 1,000 kilograms of marijuana who pleads guilty to 21 U.S.C.

§ 960 (importing controlled substance) is illustrative. In order for the guidelines to recognize this defendant's

relatively minimal role and acceptance of responsibility (a cumulative, 6-level decrease) and still provide at least the

ten-year mandatory minimum sentence, the base offense level would need to be set at 38 instead of 32 as it presently

is under U.S.S.G. §2D1.1. That, in turn, would mean that the typical participant in the marijuana importation scheme

who was neither a leader nor a minor participant, and who had no prior criminal record, would be subject to a

minimum guideline sentence of about twenty years.

^Thus, for typical cases involving drug quantities equal to the five- and ten-year mandatory minimums specified

by Congress, the base offense levels in the drug trafficking guideline are 26 and 32, respectively.

^See generally. U.S.S.G. Ch. 4, Pt. A, intro. comment., explaining the theoretical underpinnings for the guidelines'

criminal history score. See also Supplementary Report on the Initial Sentencing Guidelines and Policy Statements,

U.S. Sentencing Commission (1987), at 41-44.

29
as indicated by sentence type and length, recency, and relatedness to the instant offense generally

have no relevance to the application of mandatory minimum enhancements for prior record.

Thus, for example, under 21 U.S.C. § 841, a single prior conviction for a felony drug offense doubles

the mandatory minimum sentence. The effect is the same whether the sentence for the prior

conviction was probation or ten years; it is the same whether the conviction occurred 20 years ago

or one month ago;9 it is the same if the prior conviction occurred in state court for the same

conduct as the instant offense of conviction in federal court. In sum, mandatory prior record

enhancements, in contrast with the guidelines' fact-sensitive approach to criminal history, tend to

account for the seriousness of a prior conviction with a very broad brush.

In some instances, mandatory minimums conflict with and render moot the guidelines approach in

assessing both offense and prior record seriousness. The guidelines bring together these two

dimensions of crime seriousness through the career offender guideline,93 which ensures a sentence

at or near the statutory maximum for defendants convicted of a crime of violence or drug trafficking

offense who have at least two prior qualifying convictions in that category. This guideline functions,

where necessary, to override an otherwise applicable lower guideline determination of either offense

level or criminal history or both. Nevertheless, certain mandatory minimums override this carefully

calibrated consideration of the interaction between offense and prior record.

For example, under 21 U.S.C. § 841, prior felony convictions that would not qualify a defendant as

a career offender under the guidelines because they occurred long ago or were closely related to the

instant offense, may require a doubling of the sentence under the statute. In another situation, a

defendant sentenced under 21 U.S.C. § 841(b)(l)(A) who has two prior convictions for a felony drug

offense must be sentenced to life imprisonment without regard to the seriousness of the prior

offenses, their recency, or relation to each other or the instant offense. Thus, the limited sentencing

discretion available to the courts under the career offender guideline is eliminated by applicable

mandatory minimums, and broad classes of apparently different offenders are treated alike.

The "CUff* 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

91Requiring that the prior conviction be for a "crime of violence" does not substantially narrow the grounds for a

mandatory minimum penalty. A crime of violence is defined under 18 U.S.C. § 924(c), for example, to include crimes

ranging from murder to offenses involving "the attempted use .. . of physical force against the .. . property of another

. . . ," such as unsuccessfully attempting to break into an automobile to take an article of clothing lying on the seat.

92The conviction must, however, have become final.

^See p. 24, Step Six: Assessing the Defendant's Criminal History.

30
committed offense conduct of highly comparable seriousness. Unfortunately, the sentencing

guidelines are unable to overcome entirely these effects and thereby successfully fulfill the

Sentencing Reform Act's goal of ensuring comparable sentences for similarly-situated defendants.

This cliff effect can occur in several different ways. First, a lack of coordination between statutory

maximum and mandatory minimum penalties for the same or similar offenses can create dramatic

sentencing cliffs among similarly-situated defendants. For example, 21 U.S.C. § 844 mandates a

minimum five-year term of imprisonment for a defendant convicted of first-offense, simple possession

of 5.01 or more grams of "crack," a sentence that the guidelines accommodate by prescribing an

imprisonment range of 63-78 months. However, a first-offender convicted of simple possession of

5.0 grams of crack is subject to a maximum statutory penalty of one year imprisonment. The

guidelines cannot harmonize a statutorily mandated four-year difference in penalties between

defendants whose cases may differ only by .01 grams of crack.

Second, when multiple counts of conviction are involved, mandatory minimums can produce large

sentence differentials that override the guidelines approach of providing incremental increases in

punishment for multiple counts of distinctly separate harms. Under 18 U.S.C. § 924(c), for example,

a first conviction for the use of a firearm in connection with certain crimes requires a minimum

consecutive penalty of five years, and a second conviction mandates a minimum consecutive

sentence of 20 years. A number of courts have interpreted the statute to require stacking of the

mandatory penalties when the defendant is convicted of multiple section 924(c) counts, even if

alleged in the same indictment. Consequently, the mandatory minimums specified in 18 U.S.C.

§ 924(c) produce a sentencing cliff of 25 years between a defendant convicted of, say, robbing two

banks with an unloaded gun95 and a defendant who robbed two banks with what police later

determine was a toy gun. This is true even if the threat of violence and the terror instilled is the

same from the victims' viewpoint.

The "Charge-Specific" Nature of Mandatory Minimums

Mandatory minimums contrast with sentencing guidelines in respect to another feature that has

profound implications in determining the sentence imposable by the court. In general, a mandatory

^See, e^g., United States v. Rawlings. 821 F.2d 1543 (11th Cir. 1987) (defendant convicted under single

indictment of committing two separate armed bank robberies about four weeks apart; court affirmed treating defendant

as a repeat 18 U.S.C. § 924(c) offender for second robbery).

^Courts have consistently held that an unloaded gun satisfies the criteria for the mandatory enhancement under

18 U.S.C. § 924(c). See United States v. Munoz-Fabela. 896 F.2d 908 (5th Cir.), cert, denied, 111 S.Ct. 76 (1990);

United States v. Martinez, 912 F.2d 419 (10th Cir. 1990); United States v. Coburn. 876 F.2d 372 (5th Cir. 1989);

United States v. York, 830 F.2d 885 (8th Cir. 1987), cert, denied. 108 S.Ct. 1047 (1988); United States v. Gonzalez.

800 F.2d 895 (9th Cir. 1986).

31
minimum becomes applicable only when the prosecutor elects to charge^ and the defendant is

convicted of the specific offense carrying the mandatory sentence. On the other hand, sentencing

guidelines are more generic in nature and do not necessarily require conviction of a particular

charge for an aggravating factor to be reflected in the sentence. Sentencing guidelines typically

apply in the first instance to all offenses of a similar nature. For example, the fraud guideline,

§2F1.1, applies regardless of which of several hundred federal fraud statutes may be charged by the

prosecutor. The firearms guideline, §2K2.1, covers most of the several score of federal firearms

offenses. Thus, under the guidelines the offense charged, while certainly not irrelevant, is not

necessarily crucial to the sentence imposed. What matters relatively more are the actual facts of

the case. This guideline feature, sometimes called a modified real offense approach to sentencing,

helps preserve structured sentencing authority for the courts and lessens the likelihood of

unwarranted sentencing disparity due to inconsistent use of prosecutorial charging discretion.

Further, sentencing guideline enhancements are determined by the court based upon all available,

reliable evidence. While the government necessarily carries the burden of proving such

enhancements when they are contested, the potential application of the guidelines does not rest

entirely in the hands of the prosecutor, as is more typically the case with mandatory minimums.

Mandatory minimums employ a structure that allows a shifting of discretion and control over the

implementation of sentencing policies from courts to prosecutors. The manner in which

prosecutorial discretion is exercised in charge selection, filing of informations to trigger mandatory

enhancements based on prior convictions, plea bargaining, and the making of motions for sentence

reduction based on a defendant's substantial assistance in the investigation of other crimes,

determine the extent and consistency with which statutory minimum sentences are actually applied.

As discussed more fully in Chapter 5, there is substantial reason to believe that mandatory

minimums are not in fact pursued by prosecutors in all instances that the underlying statutes

otherwise would require.

Finally, intertwined with the charge-specific and conviction-predicate nature of mandatory

minimums, is the more stringent, beyond-a-reasonable-doubt evidentiary standard that generally

must be met before many mandatory minimums apply.97 In contrast, the courts of appeals98

have determined that a less stringent, preponderance of the evidence standard is sufficient to

determine the applicability of enhancements under the guidelines. This furthers the guidelines'

observed during the empirical study described in Chapter 5, prosecutors may also negate the applicability of

mandatory minimums in some instances by entering into factual stipulations or not charging facts that trigger the

mandatory penalty.

"For example, a defendant must be convicted under 18 U.S.C. § 924(c) of using or carrying a firearm in

connection with a crime of violence before the mandatory sentencing provisions of that statute apply. However, under

21 U.S.C. § 841, a defendant must be convicted of drug trafficking, but application of the various mandatory penalty

provisions based on quantity of drugs and prior drug convictions is a sentencing determination for the court using a

preponderance of the evidence standard.

98Applying McMillan v. Pennsylvania, 477 U.S. 79 (1986).

32
general approach of determining the appropriate sentence based on a defendant's actual ofFense

conduct, rather than what the prosecutor charged and the court convicted the defendant of doing.

C. Conclusion: The Guidelines and ihe Goals of Mandatory Minimums

In very general terms, the question as to whether the guidelines or mandatory minimums better

serve to promote the purposes of sentencing cannot be answered without considering the more

generic area of discretion. Congress recognized that the presence of unfettered discretion fostered

such problems as disparity, discrimination, lack of certainty and proportionality, and resulted in

what Congress viewed as a tendency toward leniency in certain areas. Congress addressed this

problem of discretion through both the Sentencing Reform Act and mandatory minimum penalty

provisions, attempting to curtail the discretion of both the judiciary and the prosecution. Except

for the issue of severity, mandatory minimums do not appear to address the other problems arising

from the exercise of unfettered discretion.

Returning to the six rationales" commonly given for enactment of mandatory minimum sentencing

identified in Chapter 2, the guidelines are structured so that they are as or more likely to achieve

these goals than mandatory minimums.

• Retribution/Just Deserts. Mandatory minimums are advocated by some on a just deserts

theory ~ or, in simple terms, that the punishment should fit the severity of the crime.

Because the guidelines allow for fine distinctions in offense severity, and because the

Sentencing Commission has given substantial consideration to the relative seriousness of

hundreds of offenses, the guidelines appear to serve this rationale better than mandatory

minimums.

• Deterrence and Certainty. The guidelines provide for the certainty of punishment that

supporters of mandatory minimums quite correctly cite as crucial to adequate deterrence.

Judges impose the sentence called for by the guidelines except in the unusual instance that

a factor is present that justifies a different result and can withstand the scrutiny of an

appeal. As noted in Chapter 3, this happens infrequently. Indeed, because the guidelines

rely on a modified real offense approach to sentencing, which requires the court to assess

conduct to some extent regardless of the particular offense charged, the certainty of

punishment is greater under the guidelines than with mandatory minimums. With mandatory

minimums, certainty depends fundamentally on the prosecutor's willingness to pursue the

charge, and as the analysis in Chapter 5 of this Report strongly suggests, prosecutors do not

always pursue mandatory minimum charges.100 Certainty also depends on the

prosecutor's success in obtaining a conviction on the charge carrying a mandatory minimum

"See Chapter 2, Section C.

100See also Chapter 6, Section D, noting that nearly 60 percent of federal prosecutors interviewed stated they do

not always pursue applicable mandatory minimum charges.

33
which necessitates proof of guilt beyond a reasonable doubt. In contrast, the courts have

held that a lower, preponderance of the evidence standard suffices for typical enhancements

under the sentencing guidelines.

• Incapacitation. The guidelines assure the incapacitation of serious offenders. However,

unlike mandatory minimums, which may result in the same length sentence for a minor

participant as for the organizer of a drug distribution ring, the guidelines incapacitate

offenders for time periods that more appropriately relate to the offenders' actual conduct and

past history.

• Disparity. The guidelines are potentially superior to mandatory minimums in reducing

unwarranted disparity for two interrelated reasons. First, because they operate with far

greater specificity, the guidelines are better able to identify and categorize similarly-situated

offenders. Mandatory minimums often have the contrary effect of adjudging the same penalty

for quite different offenses and offenders. Second, because the guidelines depend less on

the prosecutor's charging decision, they are better able to assure that similarly-situated

offenders receive similar sentences.

• Inducement of Cooperation. While mandatory minimums may well help induce defendants

to cooperate with authorities, guidelines operate precisely the same way. Both systems

permit sentence reductions for substantial assistance to authorities when the court grants a

sentence reduction motion by the government.

• Inducement of Pleas. Finally, while mandatory minimums may induce defendants to plead

guilty, this occurs chiefly by the prosecutor agreeing not to pursue the mandatory minimum

charge. Thus, to the extent prosecutors use mandatory minimums in this fashion (as findings

set out in Chapters 5 and 6 of this Report strongly suggest), the incentive for pleading guilty

is set by the prosecutor and can vary. Under the guidelines, acceptance of responsibility

receives a consistent 2-level decrease and is determined by the court, on the record.

In summary, it would appear that all of the intended purposes of mandatory minimums can be

equally or better served by guidelines, without compromising the crime control goals to which

Congress has evidenced its commitment.

34

Chapter 5

Empirical Study of Mandatory Minimums

As specified in the statutory directive giving rise to this Report, this chapter provides the initial

findings from an empirical research study of the effect of mandatory minimum sentencing provisions

in the federal system. In addition to the specific congressional request for an empirical study,

Congress asked for "an assessment of the effect of mandatory minimum sentencing provisions on the

goal of eliminating unwarranted sentencing disparity" and "a description of the interaction between

mandatory minimum sentencing provisions and plea agreements." These two questions lend

themselves to at least an exploratory look at data, and this chapter provides the results of that

investigation.

Before addressing the specific research questions, Section A provides a brief description of the data

and analyses used to address these questions. A more comprehensive examination of the

methodology is presented in the Technical Appendix at Appendix D.

Section B presents historical trends in the use of statutes and mandatory minimum provisions. This

section addresses the extent to which mandatory minimum sentencing provisions are being used in

the federal criminal justice system. In addition, this section addresses the question of whether

prison terms have increased as a result of mandatory minimum sentencing provisions. In general,

this precise question cannot be answered due to data limitations. However, some insight can be

provided by looking at convicted defendants who have the requisite offense conduct necessary to

invoke a mandatory minimum penalty. By looking, over time, at length of sentence imposed for

defendants with similar offense conduct (conduct sufficient to invoke a mandatory minimum), one

picture of sentence severity can be portrayed.101 This information can be viewed solely as

revealing general sentencing patterns that respond to particular kinds of offense conduct; it cannot

be concluded that changes in sentence length are due solely to mandatory minimums.

Section C provides a general profile of mandatory minimums and the defendants who are sentenced

under them. Specifically, Section C addresses the following research questions: which mandatory

minimum sentence lengths are being used most frequently? Do particular judicial circuits sentence

a larger proportion of the mandatory minimum defendants? What offense and offender

characteristics best describe mandatory minimum convictions?

Section C also provides a comparison between defendants sentenced pursuant to mandatory

minimum provisions and the population of federal guideline defendants. How do the mandatory

minimum defendants compare to the population of federal defendants? Do mandatory minimum

101There is considerable debate about the appropriateness of looking at sentence length over time when such major

interventions as mandatory minimum sentencing provisions, sentencing guidelines, and the abolition of parole have so

dramatically changed the complexion of sentencing in the federal system. For discussion of these issues, see Section B

of this chapter.

35
defendants have higher or lower plea rates, higher or lower guideline departure rates, and higher

or lower average prison lengths? What is the age, sex, race, and criminal history make-up of the

mandatory minimum defendants as opposed to the population in general?

Turning to the question of the interaction between mandatory minimums and plea agreements,

Section D presents the results of a study that examined the plea process in the federal system. This

study takes defendants sentenced in the federal system who appear102 to have circumstances

warranting a conviction pursuant to a mandatory minimum provision, and asks the following research

questions: what was the process by which the defendant moved through the system? What were

the charges at indictment? What were the final statute(s) of conviction? What were the departure

rates? Was the defendant sentenced above or below the mandatory minimum indicated?

The study discussed in Section D extends to congressional concern regarding the effect of mandatory

minimum sentencing provisions on the elimination of unwarranted sentence disparity. Section E

focuses more specifically on the issue of sentencing disparity and addresses the following questions:

do defendants who appear to exhibit conduct warranting a similar mandatory minimum sentence

receive such sentences? Does it appear that defendants are being charged differentially with respect

to mandatory minimum provisions? Does sex or race play a role in determining who ultimately is

sentenced under mandatory minimum sentencing provisions? Does the defendant's role in the

offense differentially influence a mandatory minimum sentence? Are defendants sentenced in

different circuits more or less likely to receive sentences pursuant to mandatory minimum

provisions?

Finally, Section F briefly discusses the interaction between the sentencing guidelines and mandatory

minimum sentencing provisions. This discussion focuses on the research question of whether the

guidelines respond to congressional concerns about sentence severity.

A. Methodology

103

A variety of available data sources were used for the empirical analysis of the application of

mandatory minimum provisions, including FPSSIS data from 1984 to 1990,104 U.S. Sentencing

Commission Monitoring data for fiscal year 1990, and data from a 12.5 percent sample survey from

the Sentencing Commission's files of defendants sentenced in FY 1990.

102These analyses are limited by the fact that no data as to the strength of the evidence, a key variable, are available.

103A more complete discussion of the data sources, analyses, and known data problems are provided in the Technical

Appendix at Appendix D.

104FPSSIS refers to the Federal Probation Sentencing and Supervision Information System of the Administrative Office

of the U.S. Courts.

36
Administrative Office of the U. S. Courts' (AO) FPSSIS files from 1984 to 1990, consisting solely

of defendants convicted of federal offenses, provide the basis for developing an historical perspective

on mandatory minimum statutes, including numbers of defendants sentenced pursuant to relevant

statutes, proportion of defendants with offense conduct sufficient to invoke a mandatory minimum,

and distributions of defendants whose offense conduct is sufficient to invoke a mandatory minimum.

Section B describes these historical trends.

The research staff of the Federal Judicial Center (FJC) contributed to this coordinated effort to study

the historical trends of mandatory minimums by classifying defendants through identifiable offense

components that qualified offenses as "mandatory minimum behaviors." (For example, in the FJC

research study if the offense conduct, as entered by the probation officer, identified a drug amount

sufficient to invoke a mandatory minimum, the case was coded as a mandatory minimum case.

Statutes of conviction might or might not have been based on the same drug amount.) Sentencing

trends for these defendants were analyzed in terms of the proportion of defendants sentenced to at

least the minimum terms presently prescribed by statute. These data are provided in Sections B

and E of this chapter.

The Sentencing Commission Monitoring data base for FY90 only provides a more complete picture

of statutes and application of mandatory minimum provisions. This data base contains statutory

minimums and maximums on each convicted defendant as identified in presentence reports. Section

C provides profiles of sentences and defendants from this data base, as well as a comparative

analysis of mandatory minimum defendants to all federal guideline defendants on demographic,

offense, and systemic characteristics.

These data in their coded and automated form lack detailed information regarding real offense

behavior, thus constraining the Sentencing Commission's ability to determine the presence of

applicable mandatory minimums, independent of conviction and sentencing. Without such

information, it is difficult to identify similar defendants who might warrant a mandatory minimum

sentence ~ an important ingredient in the development of a clear picture of the plea and criminal

justice process.

Since Congress specifically requested the Sentencing Commission to address the plea process, it was

necessary to assess the applicability of a mandatory minimum penalty prior to the conviction phase.

This required an analysis of the actual offense behavior that occurred. For that purpose, the

Sentencing Commission identified a 12.5 percent random sample of cases from the FY90 Sentencing

Commission data base. Each case file was thoroughly analyzed in terms of mandatory minimum

related issues, including the potential applicability of mandatory minimums based on factual offense

components. Through review of both computerized files and case files, 1,165 defendants were

identified who met the criteria for receipt of a mandatory minimum drug or weapons sentence.

In determining which defendants should be included in the sample study, facts of each case file

were carefully scrutinized. Fact patterns in the files that called for legal interpretations were viewed

in a conservative light. For example, in drug conspiracies occurring after 1988, drug amounts were

not aggregated across events unless there was strong evidence of a single plan constituting the

37
conspiracy. If the amount involved in a single event did not reach the level necessary to invoke a

mandatory minimum, the case was not included as one warranting a mandatory minimum penalty.

While relevant cases were almost certainly excluded due to this strict approach, the procedure

followed a considered preference to err on the side of "false negatives" (Le., excluding cases for

which mandatory minimums may have been applicable) rather than "false positives" (Le., including

cases for which mandatory minimums may not have been applicable). (For more detail, see the

Technical Appendix at Appendix D.)

For cases in which strict legal evidence was not clearly defined, the Sentencing Commission made

every effort to use the most reasonable standards for establishing which of these cases, on the basis

of available data, could be classified as eligible for indictment and conviction for an offense carrying

a mandatory minimum sentence. It must be underscored, however, that the available data contain

no definitive measure of the strength of evidence (ue., whether a charge was readily provable).

What can be said is that from the data in the presentence report and other documents, there is

strong indication of offense behavior for which mandatory minimum provisions are applicable.

Findings from this aspect of the research project present a more dynamic picture of the federal court

system as a process. They shed some light on prosecutorial choices, plea practices, motions, and

departures, and the relationship of these factors to the application of mandatory minimum sentences.

Sections D, E, and F discuss the findings from this special data collection effort.

Additional data collection on each defendant for whom a mandatory minimum was indicated

involved identification of the charging history from potential mandatory charges, to indicted charges

filed by the government, to final charges of conviction. Any changes in the type, number, and

penalty level of mandatory minimum charges were also tracked.

B. The Use of Statutes Carrying Mandatory Minimum Sentencing Provisions

In the Federal Criminal Code today, over 60 criminal statutes contain mandatory minimum

sentencing provisions. However, only a small number of statutes, those regulating drug and weapons

offenses, account for most of the convictions. For most statutes carrying mandatory minimum

sentence provisions, convictions are quite rare.

Table 1 presents the number of defendants sentenced per year under provisions that potentially

include applicable mandatory minimums, as reported by the Federal Probation Sentencing and

Supervision Information System (FPSSIS) during the period January 1984 through August 1990. For

most provisions (37 of 60 or 62%), no sentences under applicable statutes were identified for the

seven year period. For another five provisions, one or no defendants per year were identified. The

most frequently and consistently used statutes containing mandatory minimum penalties involved

drug and weapons offenses.

It is important to note that the FPSSIS data system provides no indication, on a case-by-case basis,

of whether defendants sentenced under relevant offense statutes were subject to the mandatory

38
Table 1

NUMBER OF DEFENDANTS SENTENCED UNDER STATUTES

WITH MANDATORY MINIMUM PROVISIONS1

(1984 through 1990)

STATUTE

TOTAL

2 USC § 192

2 USC § 390

7 USC § 13a

7 USC § 13b

7 USC §195

7 USC § 2024

12 USC §617

12 USC § 630

15 USC § 8

15 USC § 1245

15 USC §1825

16 USC §414

18 USC §115

18 USC §225

18 USC §351

18 USC § 844(h)

18USC§924(c)

18USC§924(e)

18 USC § 929

18 USC § 1091

18 USC §1111

18 USC §1114

18 USC §1116

18 USC § 1651

18 USC § 1652

18 USC §1653

18 USC § 1655

18 USC § 1658

18 USC§ 1661

YEAR

TOTAL

| _ 59,780

1

0

0

0

2

989

0

0

0

0

0

0

37

0

6

28

1,784

109

0

0

244

33

3

0

0

0

0

0

0

1984

8,353

0

0

0

0

1

227

0

0

0

.

0

0

0

.

3

6

51

.

0

.

52

0

1

0

0

0

0

0

0

1985

8,964

0

0

0

0

0

83

0

0

0

-

0

0

0

.

0

4

85

.

0

.

42

1

1

0

0

0

0

0

0

1986

9,919

0

0

0

0

0

37

0

0

0

0

0

0

1

.

0

2

97

0

0

.

40

6

1

0

0

0

0

0

0

1987

11,172

0

0

0

0

0

23

0

0

0

0

0

0

8

.

2

1

144

4

0

.

36

3

0

0

0

0

0

0

0

1988

11,627

0

0

0

0

1

253

0

0

0

0

0

0

9

.

0

4

302

22

0

0

31

8

0

0

0

0

0

0

0

1989

13,402

1

0

0

0

0

218

0

0

0

0

0

0

9

.

1

7

515

46

0

0

26

13

0

0

0

0

0

0

0

1990

(Jan-Aug)

10,252

0

0

0

0

0

148

0

0

0

0

0

0

10

0

0

4

590

37

0

0

17

2

0

0

0

0

0

0

0

39
STATUTE

18 USC § 1751

18 USC §1917

18 USC § 1992

18 USC§2113(e)

18 USC §2251

18 USC § 2251A

18 USC § 2252

18 USC §2257

18 USC §2381

18 USC §3561

19 USC §283

21 USC § 212

21 USC § 622

21 USC § 841

21 USC § 844

21 USC § 845

21 USC § 845a

21 USC § 845b

21 USC § 848

21 USC § 9602

22 USC § 4221

33 USC § 410

33 USC §411

33 USC § 441

33 USC § 447

45 USC § 83

46 USCAppx § 1228

47 USC § 13

47 USC § 220

49 USC §11911

49 USCAppx § 1472

YEAR

TOTAL

0

0

2

57

79

0

662

0

0

0

0

0

0

38,214

10,218

168

283

36

689

6,135

0

0

0

0

0

0

0

1

0

0

0

1984

0

0

0

11

1

16

.

0

0

0

0

0

3,620

1,239

4

0

.

51

1,086

0

0

0

0

0

0

0

0

0

0

0

1985

0

0

1

9

8

.

68

_

0

0

0

0

0

4,509

1,246

4

2

.

101

815

0

0

0

0

0

0

0

0

0

0

0

1986

0

0

0

9

14

.

90

.

0

0

0

0

0

5,302

1,240

34

0

0

107

953

0

0

0

0

0

0

0

0

0

0

0

1987

0

0

1

8

12

.

139

.

0

0

0

0

0

5,892

1,813

69

7

0

121

902

0

0

0

0

0

0

0

0

0

0

0

1988

0

0

0

7

17

0

183

-

0

0

0

0

0

5,959

1,882

28

50

3

121

759

0

0

0

0

0

0

0

0

0

0

0

1989

0

0

0

11

18

0

86

-

0

0

0

0

0

7,445

1,799

13

124

16

129

936

0

0

0

0

0

0

0

0

0

0

0

1990

fJan-Auq)

0

0

0

2

9

0

80

0

0

0

0

0

0

5,487

999

16

100

17

59

684

0

0

0

0

0

0

0

1

0

0

0

includes cases for which the statute refers to primary or secondary charge of conviction. Because these statutes include both

mandatory and non-mandatory sentencing provisions, defendants included on this table are sentenced pursuant to the statute,

but not necessarily the mandatory minimum provisions.

2

21 USC § 960 is the penalty statute for 21 USC §§ 952, 953, 955, 957, 959, and 960.

SOURCE: FPSSIS Data Files, 1984-1990.

40
minimum sentencing enhancements. The Sentencing Commission's monitoring system of guideline

defendants provides the ability to determine a more accurate picture of the number of defendants

sentenced pursuant to mandatory minimum provisions because this data collection system was

designed to capture more complete statutory descriptions, as well as applicable statutory minimums

and maximums. The Sentencing Commission's monitoring data encompass all defendants sentenced

pursuant to the Sentencing Reform Act, approximately 70 percent105 of all federal defendants,

sentenced during the period October 1, 1989 through September 30, 1990; 6,685 guidelines cases

include convictions for offenses that carry mandatory minimum provisions during that period. Table

2 presents the number of guideline defendants sentenced for each applicable offense statute, as well

as the proportion of those sentenced pursuant to the mandatory minimum provisions.

In general, Sentencing Commission data indicate that of the 60 or more criminal statutes that

contain provisions for mandatory minimum sentences, convictions were limited to title 21 (drug

offenses), 18 U.S.C §§ 924(c) and (e) (weapons offenses), and 18 U.S.C. § 2113(e) (hostage taking

or killing during bank robbery). Based on Tables 1 and 2, one might conclude that the number of

defendants convicted of 18 U.S.C. § 924(c) and 21 U.S.C. § 841 has dramatically increased every

year since 1984; and that most of those convicted of offenses carrying mandatory minimum

sentencing provisions are convicted under 18 U.S.C. §§ 924(c), 924(e), 2252, and 21 U.S.C. §§ 841,

844, 845, 845a, 848, 960.

As a complement to the preceding analysis, the Federal Judicial Center (FJC) prepared extensive

analyses depicting historical trends in sentencing from 1984 through 1990. This information, which

utilizes FPSSIS data, probes sentencing trends employing measures representative of the types of

offenses and offenders being sentenced, as opposed to the statutes of conviction presented

above.106

As illustrated in Figure 1, the percent of federally-sentenced defendants whose offense behavior

makes mandatory minimums potentially applicable has been steadily increasing since 1985. The

percent of the federal population whose offenses involved either a sufficient amount of opiates,

cocaine, marijuana, or weapons to invoke a mandatory minimum has been on the rise since 1985;

the 10 percent of federal defendants involved in such behaviors in late 1984 has since risen to 20

percent in early 1990. These increases appear mainly in more serious drug offenses, and most

significantly in cocaine activity.

Further analyses were undertaken to investigate changes in sentencing patterns over time for

defendants whose offense behavior was sufficient to invoke a mandatory minimum sentencing

105The Commission does not collect information on "old law" cases (Le., cases involving only offenses committed prior

to November 1, 1987 and therefore not subject to sentencing guidelines and other provisions of the Sentencing Reform

Act). Approximately 30 percent of the federal caseload sentenced during the period October 1, 1989 through September

30, 1990 represent defendants sentenced pursuant to "old law."

106A full description of the data utilized, techniques of analysis, and cautions provided are contained in the Technical

Appendix at Appendix D.

41
Table 2

NUMBER OF GUIDELINE DEFENDANTS SENTENCED UNDER STATUTES

WITH MANDATORY MINIMUM PROVISIONS

(October 1, 1989 through September 30, 1990)

STATUTE

2USC§ 192

2 USC § 390

7USC§ 13a

7 USC § 13b

7 USC §195

7 USC § 2024

12 USC §617

12 USC §630

15 USC § 8

15 USC § 1245

15 USC §1825

16 USC §414

18 USC §115

18 USC §225

18 USC §351

18 USC § 844(h)

18 USC § 924(c)

18USC§924(e)

18 USC § 929

18 USC § 1091

18 USC §1111

18 USC § 1114

18 USC § 1116

18 USC § 1651

18 USC § 1652

18 USC §1653

18 USC § 1655

18 USC § 1658

18 USC §1661

18 USC § 1751

TOTAL

NUMBER OF

DEFENDANTS

0

0

0

0

0

201

0

0

0

0

0

0

11

0

2

15

1,107

46

0

0

23

19

0

0

0

0

0

0

0

0

DEFENDANTS WITH

MANDATORY MINIMUM

PROVISION APPLIED

Number Percent

0 (-)

0 (-)

0 (-)

0 (-)

0 (-)

0 (0.0)

o (-)

0 (-)

o (-)

0 (-)

o (-)

o (-)

0 (0.0)

o (-)

0 (0.0)

5 (33.3)

1,107 (100.0)

46 (100.0)

0 (-)

0 (-)

4 (17.4)

0 (0.0)

0 (-)

0 (-)

0 (-)

0 (-)

0 (-)

0 (-)

0 (-)

0 (-)

STATUTE

18 USC §1917

18 USC §1992

18USC§2113(e)

18 USC § 2251

18 USC §2251A

18 USC § 2252

18 USC §2257

18 USC § 2381

18 USC §3561

19 USC §283

21 USC § 212

21 USC § 622

21 USC § 841

21 USC § 844

21 USC § 845

21 USC § 845a

21 USC § 845b

21 USC § 848

21 USC § 9602

22 USC § 4221

33 USC §410

33 USC §411

33 USC § 441

33 USC § 447

45 USC § 83

46 USCAppx § 1228

47 USC § 13

47 USC § 220

49 USC §11911

49 USCAppx § 1472

TOTAL

NUMBER OF

DEFENDANTS

0

0

19

10

0

92

0

0

1

0

0

1

9,271

911

141

263

9

72

1,002

0

0

0

0

0

0

0

0

0

0

15

DEFENDANTS WITH

MANDATORY MINIMUM

PROVISION APPLIED

Number Percent

0 (-)

0 (-)

19 (100.0)

0 (0.0)

o (-)

0 (0.0)

0 (-)

0 (-)

0 (0.0)

o (-)

o (-)

1 (100.0)

4,440 (47.9)

56 (6.1)

141 (100.0)

263 (100.0)

9 (100.0)

72 (100.0)

342 (34.1)

o (-)

0 (-)

o (-)

0 (-)

0 (-)

0 (-)

0 (-)

0 (-)

0 (-)

0 (-)

0 (0.0)

1

 Includes cases for which the statute refers to any of the counts of conviction. Because a single defendant may be convicted under multiple statutes, that defendant may be counted under more than one

statute. Because drug cases frequently Involve multiple counts, we were unable to assess whether all multiple count cases listed under 21 USC § 841 or 21 USC § 9B0 and have mandatory minlmums are

actually convicted pursuant to mandatory minimum provisions of that specific statute. We were able to assess, however, the number charged under some Title 21 mandatory minimum provisions.

2

 21 USC § 9B0 Is the penalty statute for 21 USC §§ 952, 953, 955, 957, 959, and 960.

SOURCE: U.S. Sentencing Commission, 1990 Data File, MONFY90

42
Figure 1

PERCENT OF DEFENDANTS WITH OFFENSES

INVOLVING MANDATORY MINIMUM DRUG

AND/OR WEAPON BEHAVIOR

(January 1984 through June 1990, by semester)

A. BEHAVIORS COMBINED

1 2

1984 1985 1986

Semester

1987 1988 1989 1990

SOURCE: FPSSIS Data Files, 1984-1990.

43
provision under current drug provisions. Figure 2 illustrates sentences imposed during the period

1984 through 1990. The boxes in Figure 2 represent the middle 80 percent of defendants sentenced

each year. The lines above and, where applicable, below each box represent the 10 percent of

defendants sentenced at the high end and 10 percent sentenced at the low end. By 1990, one can

see, for example, that most defendants with drug amounts sufficient to invoke a five-year mandatory

minimum no longer receive probation. Both the median and mean sentences for defendants with

drug amounts sufficient to meet mandatory minimum criteria (but with no firearm) increased from

1985 through 1990. The median sentence length increased from 36 to 66 months for drug

defendants with no firearms possessed or used. The mean sentence length, which is subject to

fluctuation due to extreme cases, rose from 53 to 94 months during that same period.

Figure 3 provides similar information for defendants with drug amounts sufficient to invoke

mandatory minimum sentences for drugs and use of firearms. Between 1986 and 1990, the median

sentence for these defendants increased from 84 to 180 months, while the mean increased from 99

to 190 months.

As discussed in Chapters 2 and 3 of this Report, historical changes occurred between 1984 and

1990 that impact on the interpretation of sentence length. Some mandatory minimum provisions

(most notably the 1986 drug statutes) eliminated the availability of parole for covered offenses. In

addition, the Sentencing Reform Act of 1984 eliminated parole for all offenses occurring after

November 1, 1987, and curtailed the amount of good time that potentially reduces sentences. Due

to these measures, actual time served changed substantially throughout the reporting period. For

example, a defendant receiving the median 36-month term for drug distribution in 1984 would likely

serve only one-third of the sentence or 12 months. In 1990, a defendant receiving the median 66

months for drug distribution would likely serve 85 percent of the sentence or 56 months. Thus a

sentence increase of 83 percent actually results in an increase of 367 percent in likely time served

from 1984 to 1990.107

Finally, with respect to sentencing patterns, Figure 4 indicates that the proportion of defendants with

eligible mandatory minimum behavior that were sentenced at or above the mandatory minimum term

increased from 27 percent to 54 percent between 1984 and 1990.

While changes in sentencing patterns may be illustrated during this period, explanations for such

changes cannot be drawn based on available information. Between 1984 and 1990 the federal

criminal justice system underwent significant changes in many arenas. A few of the more dramatic

107In addition to the confounding effects in sentence length resulting from the vast changes in sentencing policy, other

decision points in the criminal justice system are seriously affected. For example, the potential effect of conviction under

a mandatory minimum provision may cause prosecutors to rethink charging decisions and substantially alter charging

practices. Perhaps the most important limitation in the data results from an inability to isolate the independent effects

of mandatory minimums. The Sentencing Commission's Research Advisory Group strongly cautions any use and

interpretation of cross-year comparisons when such major social interventions as mandatory minimums and sentencing

guidelines have occurred.

44
Figure 2

DISTRIBUTION OF PRISON TERM FOR DEFENDANTS WITH

FIVE-YEAR MANDATORY MINIMUM DRUG AMOUNT (no weapon)

(January 1984 through August 1990)

PRISON TERM (in months)

Life

400 -

3 5 0

3 0 0

2 5 0

2 0 0

1 5 0

1 0 0

5 0

0

9 0 0

53.3

36

9 7 2

56.3

36

63.3

48

7 1.9

60

78.7

60

88. 1

63

93.9

66

1984 1985

(3,248 )

1986

(4,029 )

1987

(4,410 )

X/CT A D

1988

(4,987 )

M ean

1989

(6,218 )

Value

1

(4

— Median

9 9 0

,808)

Value

Numbe r o f Case s (2,920 )

NOTE ' Th e boxe s includ e th e middl e 80 % o f th e sentence d defendants . Fort y percen t ar e include d abov e th e

media n lin e an d 40 % below . Th e vertica l line s abov e andbelo w eac h bo x represen t th e distributio n o f th e remainin g

2 0 % o f cases , 10 % abov e an d 10 % below , Priso n term s abov e 36 0 month s wer e truncate d t o 36 0 month s

f o r purpose s o f calculatin g th e mean .

SOURCE : Administrativ e Offic e o f th e U.S . Courts , FPSSI S 1984-199 0 Dat a File .
Figure 3

DISTRIBUTION OF PRISON TERM FOR DEFENDANTS WITH

FIVE-YEAR MANDATORY MINIMUM DRUG AMOUNT (with weapon)

(January 1984 through August 1990)

2 5 0

2 0 0

150

100

50

240

PRISON TERM (in months)

Life

400

3 5 0

3 0 0

87.3

84

135.4

120

99.1

84

108.3

168.9

120

1 79. 1

151

190.3

180

Number of Cases

1984

(27)

1985

(23)

1986

(60)

1987

(58)

YEAR

1988

(79 )

1989

(129)

Mean Value

1990

(84)

— Median Value

NOTE : Th e boxe s Includ e th e middl e 80 % o f th e sentence d defendants . Fort y percen t ar e Include d abov e th e

media n lin e an d 40 % below . Th e vertica l line s abov e andbelo w eac h bo x represen t th e distributio n o f th e remainin g

2 0 % o f cases , 10 % abov e an d 10 % below , Priso n term s abov e 36 0 month s wer e truncate d t o 36 0 month s

f o r purpose s o f calculatin g th e mean .

SOURCE : Administrativ e Offic e o f th e U.S . Courts , FPSSI S 1984-199 0 Dat a File .
Figure 4

PERCENT OF DEFENDANTS WITH MANDATORY MINIMUM

DRUG BEHAVIOR SENTENCED TO AT LEAST THE

MANDATORY MINIMUM PRISON TERM

(January 1984 through June 1990, by semester)

Percent

60

50 -

121212121212 1

1984 1985 1986 1987 1988 1989 1990

SOURCE: FPSSIS Data Files, 1984-1990.

47
changes include: 1) the increasingly more serious nature of the federal drug population (as

previously illustrated in Figure 1); 2) increased drug activity (e^., focus on the drug wars);

3) mandatory minimums implemented for drug offenses that occurred after November, 1986; and

4) the Sentencing Reform Act that eliminated parole and implemented a sentencing guidelines

system.

Despite the above described concerns and data limitations described in the introduction to this

chapter, two pieces of information suggest that increases in sentence length for drug defendants

cannot be attributed solely to mandatory minimum provisions. First, evidence in this Report has

shown that over time, convicted federal defendants have been involved in increasingly more serious

drug activity, which in itself might lead to increased sentences.108 And, second, the trends

toward increased sentences appear to begin prior to the implementation of mandatory minimum

terms. While this study cannot show the amount of sentence length increase attributable to

mandatory minimums, it is reasonable to assume that this, along with other factors, results in

increasing sentence length.

While additional data collection and more sophisticated, long term research may be able to

disentangle the impacts of these numerous historical changes, data are currently not available to

more fully address this complex issue.

C. Profile of Defendants Sentenced under Mandatory Minimum Provisions with

Comparisons to the General Defendant Population

The Sentencing Commission's monitoring data set of guideline defendants sentenced in fiscal year

1990 provides a profile of defendants sentenced under mandatory minimum provisions, including

sentence length, offense characteristics, system or processing characteristics, and offender

characteristics. For 27,374 defendants sentenced during FY90, identifying their mandatory

minimum status provides a useful comparison between defendants subject to mandatory minimum

provisions and all defendants sentenced under the Sentencing Reform Act during that time.109

Table 3 provides a distribution of the mandatory minimum penalties applied to federal guideline

defendants sentenced in FY90. Of all defendants with mandatory minimum sentencing information

available, 75.6 percent did not receive sentences pursuant to the mandatory minimum provisions.

For these cases, the court was not bound to provide a mandatory sentence of imprisonment. For the

108Very preliminary regression analyses suggest that most of the variation in the proportion of defendants sentenced

to mandatory minimums can be explained by variation in the proportion at risk. In general, these findings suggest that

for every 10 percent increase in the number of sentenced defendants at risk, the percent sentenced to the mandatory

minimum increases by about 2.5 percent. More thorough analyses must be undertaken, however, before such finding can

be reported with any degree of confidence.

109FY90 monitoring data include 29,011 cases. Missing data for the mandatory minimum indicator preclude inclusion

of 1,635 defendants.

48
Table 3

LENGTH OF MANDATORY MINIMUM APPLICABLE AT SENTENCING1

(October 1, 1989 through September 30, 1990)

LENGTH OF

MANDATORY MINIMUM

APPLICABLE AT

SENTENCING

(in months)

TOTAL

0

1 - 10

12

15-48

60

72

120 - 123

130- 132

180- 192

240

300

360

420 - 7202

Life

Number

27,374

20,693

35

265

9

3,464

5

2,300

2

283

215

27

29

17

30

Percent

100.0

75.6

0.1

1.0

0.0

12.7

0.0

8.4

0.0

1.0

0.8

0.1

0.1

0.1

0.1

1Of 29,011 defendants, 1,637 were excluded due to missing information on the mandatory minimum indicator.

2Cases in this category typically involve multiple counts with consecutive mandatory minimums.

SOURCE: U.S. Sentencing Commission, 1990 Data File, MONFY90.

49
remaining 24.4 percent, a mandatory term was applicable. Five- and ten-year mandatory minimum

sentences were most common, with 60-month mandatory minimum terms provided most frequently

(in 12.7% of federal guidelines cases), followed by 120-month mandatory minimums (in 8.4% of

federal guidelines cases).

As would be expected from the distribution of statutes, the primary offense of conviction for most

mandatory minimum defendants involves drug activity. Table 4 indicates that 91.1 percent of all

mandatory minimum defendants have as their most serious offense of conviction a controlled

substance violation. The remaining mandatory minimum defendants have violent crimes or firearms

offenses as the primary offense of conviction. Although comprising the most serious offense category,

violent crime offenses generally do not invoke a mandatory minimum penalty in the federal system.

Most typically, a firearm enhancement provision charged in connection with these violent offenses

triggers the applicable mandatory minimum (e^g., robbery with a firearm). Table 4 also provides

comparisons between defendants sentenced under mandatory minimum provisions and all federal

guideline defendants. While 46.8 percent of the federal defendants are involved in drug activity,

91 percent of mandatory minimum defendants are involved in drug activity.

 10

Approximately two-thirds of mandatory minimum defendants were found to have some prior criminal

activity, while one-third had no prior record. The one-third with no prior record did not show any

major demographic trends that differed from those with prior records; e.g., older defendants were

just as likely to be first offenders as were younger defendants. Defendants with mandatory minimum

convictions were no more likely than the federal population as a whole to have previous criminal

behavior known to the court. (See Table 4.)

Table 5 provides the distribution of mandatory minimum and all federal defendants across judicial

circuits. Two of the twelve federal circuits, the Ninth and Eleventh, account for almost 35 percent

of mandatory minimum cases. These same two circuits account for almost 30 percent of the overall

population. Compared to circuit distributions for the total population, the Fifth Circuit appears to

be underrepresented, while the Eleventh Circuit appears to be overrepresented in the use of

mandatory minimum provisions. While only 3.3 percent of mandatory minimum defendants are

sentenced in the D.C. Circuit, 44 percent of all defendants within that circuit are sentenced under

applicable mandatory minimum provisions.

Table 5 also provides the trial and plea rates of the mandatory minimum defendants and the total

federal population. Nearly 30 percent of mandatory minimum defendants are convicted by trial.

This trial rate is significantly higher, statistically, than the 12.9 percent trial rate found for the

general defendant population.

In describing average sentence length, it is generally more appropriate to use the median sentence

length (he., the point at which 50% of the sentences fall above and 50% percent below) than the

mean sentence length. The mean is subject to unusually high or low sentences, with the former

110Other offense categories frequently convicted in the federal system are not generally covered under mandatory

minimum provisions.

50
Table 4

PROFILE OF MANDATORY MINIMUM DEFENDANTS VS. ALL FEDERAL DEFENDANTS

-OFFENSE CHARACTERISTICS-

(October 1, 1989 through September 30, 1990)

OFFENSE CHARACTERISTICS

TOTAL

PRIMARY OFFENSE OF CONVICTION

Violent offenses3

Controlled substance offenses4

Firearms offenses

All other offenses

Missing (372 / 2,435)

ANY CRIMINAL HISTORY

No

Yes

Missing (28/ 1,372)

DEFENDANTS CONVICTED

UNDER MANDATORY

MINIMUM PROVISIONS1

Number

6,685

229

5,752

283

49

2,223

4,434

Percent2

100.0

3.6

91.1

4.5

0.8

33.4

66.6

ALL FEDERAL

GUIDELINES

DEFENDANTS

Number

29,011

1,709

12,441

1,706

10,720

10,031

17,608

Percent2

100.0

6.4

46.8

6.4

40.4

36.3

63.7

1Of 29,011 defendants, 1,635 were excluded due to missing information on the mandatory minimum indicator.

2

The calculation of percentages excludes the missing cases. The number of cases missing information for each

independent variable is identified in parenthesis to the right of the "Missing" category. The first number in

parenthesis identifies cases with missing information for those convicted under mandatory minimum provisions;

the second number identifies missing information for all federal cases.

Solent offenses include homicide, kidnapping, sex offenses, robbery, assault, and burglary/breaking and entering.

4Controlled substance offenses include importation and distribution of controlled substances, simple possession of

controlled substances, and use of a communication facility in the commission of a controlled substance offense.

SOURCE: U.S. Sentencing Commission, 1990 Data File, MONFY90.

51
Table 5

PROFILE OF MANDATORY MINIMUM DEFENDANTS VS. ALL FEDERAL DEFENDANTS

-SYSTEM/PROCESSING CHARACTERISTICS-

(October 1, 1989 through September 30, 1990)

CRIMINAL JUSTICE

CHARACTERISTICS

TOTAL

UNITED STATES CIRCUIT

D.C. Circuit

First Circuit

Second Circuit

Third Circuit

Fourth Circuit

Fifth Circuit

Sixth Circuit

Seventh Circuit

Eighth Circuit

Ninth Circuit

Tenth Circuit

Eleventh Circuit

Missing (0 / 0)

MODE OF CONVICTION

Guilty Plea3

Trial

Missing (372 / 2,426)

SENTENCE (in months)4

Mean Length

Median Length

Missing (68 / 709)

DEPARTURES - 25% RANDOM SAMPLE5

TOTAL NUMBER IN SAMPLE6

Within Range

Upward

Substantial Assistance

Other Downward

Missing (38 / 174)

DEFENDANTS CONVICTED

UNDER MANDATORY

MINIMUM PROVISIONS1

Number

6,685

219

193

546

271

744

785

597

283

391

1,044

338

1,274

4,478

1,835

121

96

(1,571)

1,189

14

205

125

Percent2

100.0

3.3

2.9

8.2

4.1

11.1

11.7

8.9

4.2

5.8

15.6

5.1

19.1

70.9

29.1

N/A

N/A

77.6

0.9

13.4

8.2

ALL FEDERAL

GUIDELINES

DEFENDANTS

Number

29,011

499

625

2,230

1,146

3,008

5,362

2,636

1,307

1,719

5,096

1,642

3,741

23,162

3,423

60

33

(7,364)

5,995

162

539

494

Percent2

100.0

1.7

2.2

7.7

4.0

10.4

18.5

9.1

4.5

5.9

17.6

5.7

12.9

87.1

12.9

N/A

N/A

83.4

2.3

7.5

6.9

1

 Of 29,011 defendants, 1,635 were excluded due to missing information on the mandatory minimum indicator.

The calculation of percentages excludes the missing cases. The number of cases missing information for each

independent variable is identified in parenthesis to the right of the "Missing" category. The first number in parenthesis

identifies cases with missing information for those convicted under mandatory minimum provisions; the second

number identifies missing information for all federal cases.

The "Guilty Plea" category includes defendants sentenced subsequent to a plea of guilty or nolo contenders.

The calculation for mean and median prison sentence excludes defendants that received no imprisonment. Life

sentences were coded as 360 months.

Departure data provided by the USSC is on an ongoing 25% random sample of guideline cases. "Upward,"

"Substantial Assistance," and "Other Downward" departures involve cases that have been sentenced above the

guideline maximum or below the guideline minimum as established by the court.

Of the 7,364 departure cases, 413 were excluded due to missing information on the mandatory minimum indicator.

SOURCE: U.S. Sentencing Commission, 1990 Data Hie, MONFY90.

52
pulling the mean too high and the latter pulling the mean too low to provide a representative

number. Therefore, the median sentence for mandatory minimum defendants is 96 months (mean

of 121 months). This median sentence length is 63 months higher than the average of the total

federal population (33 months). As shown in Table 5, these figures are substantially higher than

the median and mean sentence lengths of 33 and 60 months, respectively, found for the overall

federal population.

Mandatory minimum defendants received downward departures 21.6 percent of the time. These

departures generally represent substantial assistance motions filed by the prosecutors. This

downward departure rate is higher than the 14.4 percent rate for the general population and may

result because the law provides for substantial assistance motions as the only basis for sentencing

below the mandatory minimum, or because complex, multi-defendant drug cases make substantial

assistance both more feasible and at times crucial. Alternatively, the increased departure rate may

reflect a greater tendency to exercise prosecutorial or judicial discretion as the severity of the

penalties increases. (See Table 5.)

As shown in Table 6, which provides offender characteristics, approximately 90 percent of

mandatory minimum defendants are male. In terms of race, 38.5 percent are Black, 34.8 percent

White, and 25.4 percent Hispanic. Almost 60 percent of mandatory minimum defendants are

between the ages of 22 and 35.

Comparatively, Table 6 indicates that mandatory minimum defendants are proportionally more likely

to be male (89.9%) than in the total population (83.9%); proportionally more likely to be Black

(38.5% of mandatory minimum defendants and 28.2% of the total population), and likely to be

slightly younger.111

D. Criminal Justice Processing and Plea Practices

Congress directed the Sentencing Commission to provide "a description of the interaction between

mandatory minimum sentencing provisions and plea agreements."1 The empirical study assists

in that description by investigating the processing patterns of federal defendants subject to

mandatory minimum provisions. The investigation attempts to shed light on the variety of plea

patterns.

H1Appendix E describes comparative profiles among mandatory minimum defendants within similar offense types.

It compares controlled substance defendants sentenced under 1) mandatory minimum provisions that did not include

weapons enhancement penalties, 2) mandatory minimum provisions that did include weapons enhancement penalties, and

3) statutory provisions containing no mandatory minimum provisions. Generally, the overall percentages provided in the

above discussion hold for these controlled substance categories of defendants.

112Pub. L. 101-647, §1703, 104 Stat. 4846 (1990).

53
Table 6

PROFILE OF MANDATORY MINIMUM DEFENDANTS VS. ALL FEDERAL DEFENDANTS

-OFFENDER CHARACTERISTICS-

(October 1, 1989 through September 30, 1990)

DEFENDANT CHARACTERISTICS

TOTAL

DEFENDANT'S SEX

Male

Female

Missing (369 / 2,449)

DEFENDANT'S RACE

White

Black

Hispanic3

Other4

Missing (407/2,611)

DEFENDANT'S AGE

Under 22

22-25

26-30

31 -35

36-40

41 -50

Over 50

Missing (10/ 1,282)

DEFENDANTS CONVICTED

UNDER MANDATORY

MINIMUM PROVISIONS1

Number

6,685

5,678

638

2,185

2,417

1,594

82

677

1,144

1,400

1,206

908

952

388

Percent2

100.0

89.9

10.1

34.8

38.5

25.4

1.3

10.1

17.1

21.0

18.1

13.6

14.3

5.8

ALL FEDERAL

GUIDELINES

DEFENDANTS

Number

29,011

22,286

4,276

12,387

7,452

5,808

753

2,436

4,253

5,843

5,138

3,792

4,265

2,002

Percent2

100.0

83.9

16.1

46.9

28.2

22.0

2.9

8.8

15.3

21.1

18.5

13.7

15.4

7.2

1Of 29,011 defendants, 1,635 were excluded due to missing information on the mandatory minimum indicator.

2

The calculation of percentages excludes the missing cases. The number of cases missing information for each

independent variable is identified in parenthesis to the right of the "Missing" category. The first number in parenthesis

identifies cases with missing information for those convicted under mandatory minimum provisions; the second number

identifies missing information for all federal cases.

3

The "Hispanic" category includes both white Hispanics and black Hispanics, and as such the numbers reported

underrepresent black defendants.

"The "Other" category includes American Indians, Alaskan Natives, and Asian or Pacific Islanders.

SOURCE: U.S. Sentencing Commission, 1990 Data File, MONFY90.

54
In general the plea process does not lend itself to quantitative analysis because many of the

important factors cannot be found in available data. Discussions and decisions between parties

generally occur in private, often leaving to speculation the process by which a plea agreement was

reached. As part of its evaluation effort, the Sentencing Commission interviewed judges, prosecutors,

defense attorneys, and probation officers about their perceptions regarding the plea process. Chapter

6 of this Report provides a description of the interview questions that relate to mandatory minimum

provisions, and, of import to the present discussion, charging practices that involve mandatory

minimum provisions. That discussion underscores the frequency and circumstances under which

prosecutors decide not to bring mandatory minimum charges.

This section of the Report describes a special study, undertaken by the Sentencing Commission,

designed to follow cases from indictment through the sentence actually imposed. This study looked

solely at defendants who had been convicted and sentenced in the federal courts, and determined

which defendants' offense conduct indicated that a mandatory minimum sentence was warranted

(regardless of whether the mandatory minimum provision was actually charged or convicted). It

must be underscored that inclusion in this sample was based solely on available data from the

presentence report. Importantly, data on the strength of evidence, a key consideration for

prosecutors, were not available. Thus, if a decision was made to dismiss the mandatory minimum

count because of lack of strong evidence, the case, nonetheless, might be included in this sample.

The study tracked the processing (i^e., charging, conviction, and sentencing) of 1,165 sample cases

identified through review of case files as exhibiting behaviors specified in mandatory minimum

provisions relating to drug offenses and weapons use in drug offenses or bank robberies.113 The

study specifically tracked the use of mandatory minimum provisions throughout various phases of

the system.114 Figure 5 sets forth the major findings of this special study.115

113Review of case files included an examination of presentence reports, plea agreements, reports on the sentencing

hearing, and judgment of conviction orders. A full description of the methodology utilized for this study is provided in

the Technical Appendix at Appendix D. Of the 2,210 cases in the original sample for which case files were reviewed,

1,165 defendants were found to exhibit mandatory minimum behavior. Of these defendants, full historical information was

available on 1,084.

U4It is important to note that this sample was drawn exclusively from defendants who were convicted and sentenced

in the federal system. The model, therefore, cannot track defendants who exited the system because no federal charges

were filed, for whom all charges were dismissed, or who were found not guilty of all charges.

u5Recall from earlier discussion that data are not available as to strength of evidence. Nevertheless, following a

conservative approach to prescribing defendants for inclusion in the sample, there is strong indication of offense behavior

for which mandatory minimum provisions are applicable.

55
Figure 5

PROCESSING PATTERNS FOR DEFENDANTS WITH

MANDATORY MINIMUM BEHAVIOR*

PLE A (424 )

Convicted

Defendants with

Mandatory

Minimum

Behavior

Mandatory

Minimum

Charged at

Ind ictment

Mandatory

Minimum

at Conviction

(After Plea/Trial)

Mandatory Minimum

Applicable after Motion

for Substantial

Assitance

Sentenced

At (and Above) or

Below Possible

Mandatory Minimum

Highest Mandatory Minimum Reduced Mandatory Minimum No Mandatory Minimum

Of th e 1,16 5 defendant s in th e sample , 8 1 case s wer e exclude d du e to on e o r mor e of th e followin g conditions :

missin g Informatio n o n Indictment , conviction , departure , o r sentence .

SOURCE : U.S . Sentencin g Commission , FY9 0 Mandator y M in Imu m Sampl e Dat a File .
Overview of Case Processing

Charging Patterns

The first column in Figure 5 indicates the population of convicted defendants who were determined

to warrant mandatory minimum terms of imprisonment under existing statutory provisions.

Determinations were made using descriptions of defendants' offense conduct from the presentence

reports employing a conservative definition of applicability.

The second column in Figure 5 shows that at the indictment stage (original indictment if applicable;

superseding indictment if one existed), 74.3 percent of the defendants were charged under the

highest mandatory minimum provisions indicated by the offense behavior. Another 13.7 percent

were charged with mandatory minimums requiring lower penalties and 12.0 percent were charged

under statutory provisions not requiring minimum penalties.

Because this stage of the process is not fully documented, the study cannot assess the prosecutors'

reasons for not charging the full mandatory minimum provisions for 25.7 percent of the defendants.

Among the possible explanations for not charging at the full mandatory minimum level are lack of

evidence to support full charges at the levels required, plea arrangements made prior to charging,

easily-indictable lesser charges that are not superseded after plea discussions, or workload issues.

Mandatory minimum reductions at this stage, however, involve the following patterns:

• Drug charges were filed specifying no amount of drugs or specifying lower amounts of drugs

than appeared supportable.116 Specifying no amount of drugs resulted in no applicable

mandatory minimum, while specifying a lower amount resulted in lower or no applicable

minimums, depending on the amount specified.

• Charges for mandatory weapons enhancements under 18 U.S.C. § 924(c) were not filed. For

45 percent (138 of 309) of drug defendants for whom weapons enhancements were found

appropriate, no gun charges were filed.

• Increased punishments for prior felony convictions were not sought by the prosecutor. For

85 of 135 (63%) defendants for whom increased punishments were possible due to prior

felony convictions, increased minimums were not sought or obtained.

116In general, the courts have held that the mandatory minimum penalty provisions in 21 U.S.C. §§ 841 (b) and 960(b)

are sentencing determinations for the court; hence it is unnecessary that the indictment specify drug quantity.

Nevertheless, where it is still the practice to specify drug quantities in the indictment, it is sometimes the case that

prosecutors state a smaller drug quantity than an indicated mandatory minimum amount.

57
Plea/Conviction Patterns

The third column of Figure 5 indicates that at conviction, 59 percent of the sample defendants were

convicted at the full mandatory minimum level possible; 16.2 percent were convicted at a reduced

minimum; and 24.5 percent were not convicted under any mandatory minimum provision.

An analysis of case flow between the indictment and conviction stages indicates that of the

defendants fully charged at the outset who went to trial, convictions involving the full minimum

accounted for 96 percent, reductions of mandatory minimums accounted for 2 percent, and no

minimums for 2 percent. Of defendants fully charged at the outset who pleaded guilty, 26.8 percent

pleaded guilty to charges involving lesser or no mandatory minimums. Of defendants originally

charged with mandatory minimum provisions providing penalties below those determined to be

indicated by the study who pleaded guilty, 12.6 percent pleaded to no mandatory minimum charges.

Of defendants in the study entering into oral or written plea agreements, 31.5 percent had no

mandatory minimum at conviction, an additional 18.9 percent received motions for substantial

assistance, and 52.9 percent were sentenced below the mandatory minimum indicated. The

prosecutors' reasons for reducing or dismissing mandatory minimum provisions at this stage cannot

be assessed through this study, but may be attributable to problems in evidence, strategies to induce

a plea, or satisfaction with the punishment received. According to the Thornburgh

Memorandum,*17 prosecutors may drop or reduce readily provable charges for a variety of

reasons, including a change in the evidence, the need to protect a witness, when it does not affect

the sentence length, and workload issues (e.g., the burden a trial will place on an office).

Charging patterns identified at this stage of processing, relating to defendants who pleaded to lower

mandatory minimum or no mandatory minimum provisions, include the following:

• Superseding informations were filed specifying lesser or no mandatory minimum charges and

the original charges were dismissed. This typically involved specification of lesser drug

amounts involved in drug distribution. However, for 13 defendants (4.5% of those with no

minimum at conviction), superseding informations specified only simple possession or use

of a communication facility and no mandatory minimum charges.

Charges carrying mandatory minimum enhancements were dismissed. For 26 percent of

defendants originally charged with weapons enhancements under 18 U.S.C. § 924(c), these

provisions were later dismissed. For five defendants (1.7% of those with no minimum at

conviction) mandatory minimum counts were dropped, leaving only simple possession or

communication facility counts for the indicted charges. Frequently, in multiple count drug

distribution cases, mandatory minimum counts were dismissed while non-mandatory drug

distribution counts remained.

117Memorandum to Federal Prosecutors from Attorney General Richard Thornburgh (March 13, 1989).

58
Also present at this stage in the plea process were plea agreements stipulating to sentencing factors

that could substantially reduce sentences. Of the 716 defendants for whom plea agreements were

evident, 23.7 percent were known to have stipulated to specific drug amounts, 5.6 percent to status

of gun possession, 6.4 percent to role in the offense, and 28.5 percent to offense level, sentencing

range, or sentence. The merits of all stipulations cannot be assessed and many appeared to reflect

the full amount indicated in the case file. In addition, stipulations were not always accepted by the

court as factual findings. However, for 17 percent of the defendants whose plea involved

stipulations to drug amount, the amount used at sentencing was lower than that pertaining to the

mandatory minimum indicated by the study.

Motions for Substantial Assistance

The fourth column in Figure 5 illustrates the effect of substantial assistance motions. As noted

elsewhere in this Report, following conviction the prosecutor may make a motion to the court for a

reduction in sentence due to substantial assistance by the defendant in the investigation and/or

prosecution of other criminal activity. As provided by statute, a substantial assistance motion

granted by the court removes the mandatory minimum requirements that otherwise would be binding

at sentencing. This step in the model indicates that through substantial assistance motions, 17.6

percent of those subject to the full mandatory minimum penalty after conviction, and 14.2 percent

of those subject to reduced minimums after conviction, were not subject to any mandatory minimum

penalties at the time of sentencing.

Sentencing

The final column in Figure 5 compares the sentences actually imposed by the courts to the

sentences called for by the mandatory minimum provisions indicated by the study. As shown in the

last column, 60.3 percent of the defendants were found to be sentenced at or above the mandatory

minimum indicated by the study, while 39.7 percent were sentenced below the indicated level.

As explained more fully in Chapter 4, the sentencing guidelines system, based on conviction and

real offense conduct, is designed to standardize sentencing for similar defendants by giving weight

to certain real offense characteristics. After initial consideration of counts of conviction, the

guidelines provide enhancements or reductions based on conduct that occurred in association with

the offense. Base offense levels and adjustments are typically constructed to reflect mandatory

minimum provisions for similar defendants. For example, under the guidelines the base offense

level for an offense involving 100 grams of heroin is set to result in a minimum five-year sentence

if drug distribution is charged, independent of the penalty provision pursued (i^e., mandatory

minimum). Due to the real offense characteristics of the guidelines, therefore, many offenders not

convicted under mandatory minimums were sentenced at or above the level indicated by the study.

However, several processing factors were found to result in sentences below the indicated mandatory

minimum levels:

59
If the defendant substantially assisted the government and a motion was made by the

prosecutor for reduction of sentence, the judge had grounds to depart below the mandatory

minimum level and the guideline range. For 31 percent of the defendants sentenced below

the indicated mandatory minimum, downward departures for substantial assistance were

provided.

Assuming no mandatory minimum is applied, a court may depart downward from the

guideline range for mitigating circumstances unique to a particular case. For 12 percent of

the defendants sentenced below the indicated mandatory minimum level, a downward

departure below the guideline range was provided.

Additional factors can contribute to guideline ranges below the indicated mandatory

minimum sentences. Because the guidelines do not employ a "pure" real offense approach,

some charging strategies result in lower guideline ranges if mandatory minimum counts are

dropped. For instance, simple possession and communications facility charges will reduce

guideline levels, as well as statutory maximums, below the indicated mandatory minimums.

In other situations, guideline adjustments for behavior that is not charged provide for lesser

increases than originally charged. For example, firearms adjustments under the guidelines

typically enhance the range less when uncharged than the 60-month enhancement required

after conviction under 18 U.S.C. § 924(c).118 For 60 percent of those defendants falling

below the mandatory level that were not due to downward departures, the guideline range

would have been higher if charged differently. (This figure includes defendants with both

reductions in mandatory minimum counts and stipulations to lower amounts that were

accepted by the court.)

In some cases, otherwise applicable guideline sentencing ranges are not as high as

mandatory minimum sentences require. For instance, for defendants involved in drug

distributions at levels close to the minimum amounts that trigger a mandatory minimum, or

first offenders involved as minor participants, guideline requirements are typically lower than

those called for by the mandatory minimum penalty provision (were it applicable). In

addition, the criminal history enhancement slope for prior sentences under the guidelines

is not as steep as dictated for prior convictions in the statutes. As a result, guideline

sentences will not be as high for certain categories of defendants when enhanced statutory

punishments are not pursued by the prosecution. For 40 percent of the defendants

sentenced below the indicated minimum that were not a result of downward departure, the

guideline range would not have been higher despite different charging practices.

118Guideline amendments pending before Congress rectify this in the case of firearm use in connection with robbery.

These amendments will become part of the guidelines on November 1, 1991, assuming no further legislation alters this

result.

119The guidelines ensure, however, that if a mandatory minimum sentence is applicable at sentencing, the guideline

minimum will be not less than the statutory minimum.

60
E. Impact of Mandatory Minimums on Reducing Unwarranted Sentencing Disparity

In mandating minimum terms of imprisonment, one of Congress's goals was to eliminate unwarranted

sentencing disparity for certain categories of defendants. To accomplish this, Congress identified

these categories and designated appropriate penalties below which defendants were not to be

sentenced.

The following analyses address the goal of reducing unwarranted sentencing disparity only in terms

of application of the minimum terms mandated to convicted defendants who exhibit behavior

sufficient to invoke a mandatory minimum penalty. They do not address potential disparity among

defendants sentenced above the minimum, a form of disparity Congress did not intend to address

through mandatory minimums. As discussed in Section D, the Sentencing Commission's sample

study found that approximately 40 percent of defendants determined to exhibit behavior warranting

mandatory minimum terms were sentenced below those indicated terms. Whether due to plea

agreements, workload issues, substantial assistance, or evidence problems, these sentences are

disparate by statutory definitions established by Congress. If a defendant exhibits the requisite

conduct necessary to invoke a mandatory minimum but is sentenced below the indicated term, the

threshold for reducing disparity does not hold.

In order to further investigate the nature of the offense and eligible defendants who received

sentences lower than those warranted, an analysis of case processing was undertaken, targeting

specified system, offense, and offender characteristics. This information sheds additional light on

potential disparity occurring under mandatory minimum sentencing.

Circuit Variations

While federal statutes are meant to be applied consistently in all federal courts, variations across

circuits in case handling may occur due to differing defendant populations, crime rates or types,

caseloads, and other factors. As a result, conclusions about variations in sentencing behavior across

circuits must be made cautiously in the absence of multivariate analyses that control for these types

of between-circuit differences.

Table 7 presents the percentage of eligible defendants sentenced at or above the indicated statutory

minimum by circuit. The processing of defendants in the D.C., First, Eighth, and Eleventh Circuits

most consistently result in sentences at or above indicated mandatory minimums (all at or above

70%), while the Second and Tenth Circuits (below 49%) least consistently result in such sentences.

For two selected offense types, controlled substance defendants with possible 60-month minimums

and controlled substance defendants with 120-month minimums, Tables 8 and 9 track case

processing by circuit. Although numbers of defendants within categories become small and less

accurate in generalizing within each circuit, review of these figures is enlightening to understanding

processing patterns. For instance, the D.C. and First Circuit (with high proportions of defendants

above indicated mandatory minimum penalties) have the highest rates of charging statutes mandating

the highest minimum sentence. Their rates of loss at conviction, however, are generally not higher

61
Table 7

UNITED STATES CIRCUIT

BY SENTENCE AT MANDATORY MINIMUM INDICATED*

(October 1, 1989 through September 30, 1990)

UNITED STATES

CIRCUIT

Total

D.C. Circuit

First Circuit

Second Circuit

Third Circuit

Fourth Circuit

Fifth Circuit

Sixth Circuit

Seventh Circuit

Eighth Circuit

Ninth Circuit

Tenth Circuit

Eleventh Circuit

Sentenced Below

Mandatory Minimum

Indicated

N

466

7

8

65

15

49

71

43

12

15

95

29

57

Percent

(40.2)

(20.0)

(29.6)

(51.6)

(30.6)

(43.4)

(43.8)

(40.2)

(30.8)

(25.4)

(49.2)

(53.7)

(29.4)

Sentenced At or

Above Mandatory

Minimum Indicated

N

692

28

19

61

34

64

91

64

27

44

98

25

137

Percent

(59.8)

(80.0)

(70.4)

(48.4)

(69.4)

(56.6)

(56.2)

(59.8)

(69.2)

(74.6)

(50.8)

(46.3)

(70.6)

TOTAL1

N

1,158

35

27

126

49

113

162

107

39

59

193

54

194

Percent

(100.0)

(100.0)

(100.0)

(100.0)

(100.0)

(100.0)

(100.0)

(100.0)

(100.0)

(100.0)

(100.0)

(100.0)

(100.0)

1

 Of the 1,165 sample cases, 7 were excluded due to missing information on sentence or mandatory minimum indicated.

Statistically Significant, P. < =.01.

SOURCE: U.S. Sentencing Commission, 1990 Mandatory Minimum Sample Data File.

62
Table 8A-8E

PROCESSING PATTERNS FOR CONTROLLED SUBSTANCE DEFENDANTS WITH A 60-MONTH MANDATORY MINIMUM INDICATED

-BY CRIMINAL JUSTICE CHARACTERISTICS-

(October 1, 1989 through September 30, 1990)

CRIMINAL JUSTICE

CHARACTERISTICS

TOTAL NUMBER1

UNITED STATES

CIRCUIT

D.C. Circuit

First Circuit

Second Circuit

Third Circuit

Fourth Circuit

Fifth Circuit

Sixth Circuit

Seventh Circuit

Eighth Circuit

Ninth Circuit

Tenth Circuit

Eleventh Circuit

TOTAL

NUMBER1

(482)

(14)

(14)

(64)

(10)

(34)

(80)

(57)

(14)

(23)

(84)

(19)

(69)

Mandatory Minimum

Charged at Indictment

(in months)

0or12

(87)

aA

7.7

0.0

36.1

20.0

20.0

21.3

12.3

14.3

13.6

23.2

11.1

11.3

60 and

above

(371)

92.3

100.0

63.9

80.0

80.0

78.7

87.7

85.7

86.4

76.8

88.9

88.7

Mode of

Conviction2

Plea

(387)

8B

57.1

78.6

84.4

70.0

88.2

77.2

82.5

57.1

82.6

79.8

94.7

82.6

Trial

(94)

42.9

21.4

15.6

30.0

11.8

22.8

17.5

42.9

17.4

20.2

5.3

17.4

Mandatory Minimum

Level at Conviction

(in months)

0or 12

(169)

8C**

28.6

14.3

39.1

40.0

32.4

51.3

28.1

14.3

13.0

50.0

42.1

15.9

60 and

above

Departure Status3

None

(313TII (357)

71.4

85.7

60.9

60.0

67.7

48.8

71.9

85.7

87.0

50.0

57.9

84.1

8D

92.9

85.7

63.3

60.0

70.6

76.2

73.7

71.4

78.3

70.2

84.2

84.1

Upward

(7)

0.0

0.0

1.7

10.0

0.0

0.0

0.0

0.0

0.0

6.0

0.0

0.0

Substantial

Assistance

(66)

0.0

14.3

18.3

30.0

17.7

7.5

19.3

7.1

21.7

11.9

15.8

11.6

Other

Downward

Sentence

(in months)

Under 60

(48) || (181)

7.1

0.0

16.7

0.0

11.8

16.3

7.0

21.4

0.0

11.9

0.0

4.4

8E**

14.3

14.3

53.1

50.0

41.2

43.8

38.6

21.4

17.4

47.6

36.8

18.8

60 and Above

(301)

85.7

85.7

46.9

50.0

58.8

56.3

61.4

78.6

82.6

52.4

63.2

81.2

1

 The row and column totals identified in parenthesis exclude missing cases. Each total represents the frequency of non-missing cases for independent (row) and dependent (column) variable.

The calculation of all percentages excludes missing cases.

2

 The "Guilty Plea" category includes defendants sentenced subsequent to a plea of guilty or nolo contendere.

3

 "Upward," "Substantial Assistance," and "Other Downward" departures involve cases that have been sentenced above the guideline maximum or below the guideline minimum as established

by the court.

"Statistically Significant, P. < =.01.

SOURCE: U.S. Sentencing Commission, FY90 Mandatory Minimum Sample Data File.
Table 9A-9E

PROCESSING PATTERNS FOR CONTROLLED SUBSTANCE DEFENDANTS WITH A 120-MONTH MANDATORY MINIMUM INDICATED

-BY CRIMINAL JUSTICE CHARACTERISTICS-

(October 1, 1989 through September 30, 1990)

CRIMINAL JUSTICE

CHARACTERISTICS

TOTAL NUMBER1

UNITED STATES

CIRCUIT

D.C. Circuit

First Circuit

Second Circuit

Third Circuit

Fourth Circuit

Fifth Circuit

Sixth Circuit

Seventh Circuit

Eighth Circuit

Ninth Circuit

Tenth Circuit

Eleventh Circuit

TOTAL

NUMBER1

(415)

(11)

(9)

(37)

(18)

(50)

(49)

(26)

(21)

(18)

(70)

(22)

(84)

Mandatory Minimum

Charged at Indictment

(in months)

0

(23)

9A

0.0

0.0

17.1

6.3

4.3

4.4

3.9

9.5

0.0

2.9

13.6

5.0

60

(66)

9.1

11.1

31.4

18.8

21.3

20.0

26.9

9.5

11.0

11.8

9.1

12.5

120 and

above

(309)

90.9

88.9

51.4

75.0

74.5

75.6

69.2

81.0

88.9

85.3

77.3

82.5

Mode of

Conviction2

Plea

(302)

9B

54.6

55.6

81.1

55.6

72.0

77.6

84.6

57.1

61.1

80.0

81.8

69.0

Trial

(113)

45.5

44.4

18.9

44.4

28.0

22.5

15.4

42.9

38.9

20.0

18.2

31.0

Mandatory Minimum

Level at Conviction

(in months)

0

(75)

9C

9.1

0.0

27.0

16.7

10.0

22.5

15.4

9.5

5.6

28.6

36.4

11.9

60

(87)

27.3

22.2

37.8

22.2

26.0

26.5

26.9

4.8

16.7

12.9

13.6

17.9

120 and

above

(253)1

63.6

77.8

35.1

61.1

64.0

51.0

57.7

85.7

77.8

58.6

50.0

70.2

Departure Status3

None

(282)

9D

90.9

55.6

61.1

83.3

68.0

73.5

57.7

57.1

66.7

65.6

59.1

78.6

Upward

(4)

0.0

0.0

0.0

0.0

0.0

4.1

3.9

0.0

0.0

1.6

0.0

0.0

Substantial

Assistance

(80)

9.1

33.3

25.0

16.7

26.0

16.3

15.4

28.6

33.3

10.9

31.8

15.5

Other

Downward

(42) |

0.0

11.1

13.9

0.0

6.0

6.1

23.1

14.3

0.0

21.9

9.1

6.0

Sentence

(in months)

Under

60

(76)

9E

9.1

0.0

24.3

11.1

14.0

12.2

26.9

15.0

27.8

24.3

45.5

10.7

60 and

Above

(105)

27.3

33.3

40.5

33.3

34.0

28.6

23.1

15.0

11.1

20.0

22.7

20.2

120 and

Above

(233)

63.6

66.7

35.1

55.6

52.0

59.2

50.0

70.0

61.1

55.7

31.8

69.1

1

The row and column totals identified in parenthesis exclude missing cases. Each total represents the frequency of non-missing cases for independent (row) and dependent (column) variable.

The calculation of all percentages excludes missing cases.

2

 The "Guilty Plea" category includes defendants sentenced subsequent to a plea of guilty or nolo contendere.

3

 "Upward," "Substantial Assistance," and "Other Downward" departures involve cases that have been sentenced above the guideline maximum or below the guideline minimum as established

by the court.

SOURCE: U.S. Sentencing Commission, FY90 Mandatory Minimum Sample Data File.
than others. The D.C. Circuit has consistently lower proportions of reductions for substantial

assistance. Some of the highest reduction circuits (e^g., the Second and Ninth Circuit) show

reductions in applicable penalty levels at every stage of the process.

Of additional interest are variations in proportions of drug defendants who go to trial by circuit.

(See Tables 8B and 9B.) For instance, the D.C. and Seventh Circuits, with generally lower overall

reduction patterns, have fairly high trial rates compared to other circuits. However, there appears

to be no consistent pattern across all circuits.

Offense Variations

Data regarding four offense conduct variables relevant to controlled substance offenses were

collected and studied: drug amount, role in the offense, scope of the criminal activity, and primary

drug type involved. This section reviews the effect of offense characteristics on mandatory minimum

sentencing, and reviews processing patterns for drug cases in the sample at the 60-month and the

120-month indicated minimum levels for selected characteristics.

Sixty-five percent of defendants in the sample involved with high amounts of drugs were sentenced

at or above the indicated statutory minimum, compared to 56.3 percent and 57.4 percent,

respectively, with medium or low drug amounts. (See Table 10.) However, the fact that 35 percent

of defendants at the highest drug levels did not receive mandatory sentences reveals potentially

significant disparity in sentences if it is assumed that other similar defendants should and do receive

sentences well above the minimums suggested by Congress.

Defendants with a peripheral role in the offense (e.g., girlfriend, spouse, courier with little

knowledge of contents of package) are less likely to receive sentences at or above the indicated

mandatory minimums: 21 percent compared to the average 60 percent for the entire sample. (See

Table 11.) The defendants most likely to be sentenced at or above the minimums are those who

distribute at the street level, and not those with higher roles involved in such activities as large

scale distribution, manufacturing, and importation. Of greatest importance to the disparity issue,

however, is the fact that 30 to 40 percent of those in higher roles received sentences lower than

warranted by statutory criteria of drug amount and/or weapons use.

Several observations can be made when examining the case processing of defendants by role in the

offense. The highest and lowest role categories for the 60-months indicated defendants have the

lowest probability of being charged with the applicable minimum (58.5 and 62.5 percent

respectively), and greater probabilities of reductions at conviction. Fewer reductions are evident

in the three mid-level roles. (See Tables 12A, 12C.) This relationship holds true for peripheral

roles, but disappears for the highest level role for defendants with the 120-month indicated

minimum. (See Tables 13A, 13C.)

For defendants subject to the 120-month minimum, those with higher roles are less likely to plead

guilty. No comparable pattern is found in the 60-month category. (See Tables 12B, 13B.) For both

65
Table 10

DRUG AMOUNT

BY SENTENCE AT MANDATORY MINIMUM INDICATED'

(October 1, 1989 through September 30, 1990)

DRUG

AMOUNT2

Total

Low

Medium

High

Sentenced Below

Mandatory Minimum

Indicated

N

440

75

210

155

Percent

(40.0)

(42.6)

(43.7)

(34.9)

Sentenced At or

Above Mandatory

Minimum Indicated

N

661

101

271

289

Percent

(60.0)

(57.4)

(56.3)

(65.1)

N

1,101

176

481

444

TOTAL1

Percent

(100.0)

(100.0)

(100.0)

(100.0)

1

 Of the 1,165 sample cases, 66 were excluded due to missing or inapplicable information on drug amount, sentence, or

mandatory minimum indicated.

2

 The drug amount categories are identified from the base offense level for 2D1.1 cases as established by the court from the

Report on the Sentencing Hearing. When the Report on the Sentencing Hearing was missing, information on base offense level

for 2D1.1 cases was taken from the Presentence Report. Drug cases for which the chapter two guideline applied was not 2D1.1

had an assessed level used to more accurately approximate the amount of drugs involved. The "Low" category includes

defendants whose drug amount is less than 100 grams of heroin or equivalents for other drugs as established by statute. The

"Medium" category includes defendants whose drug amount was greater than or equal to 100 grams but less than one kilogram

of heroin or equivalents. The "High" category includes defendants whose drug amount was greater than or equal to one

kilogram of heroin or equivalents.

Statistically Significant, P. < =.05.

SOURCE: U.S. Sentencing Commission, 1990 Mandatory Minimum Sample Data File.

66
Table 11

ROLE IN THE OFFENSE

BY SENTENCE AT MANDATORY MINIMUM INDICATED*

(October 1,1989 through September 30,1990)

ROLE IN THE

OFFENSE

Total

Peripheral2

Minor3

Distributor-Street Level

Distributor-Above Street Level

Distributor/Importer-Highest Levels

Sentenced Below

Mandatory Minimum

Indicated

N

417

19

102

65

168

63

Percent

(39.8)

(79.2)

(48.3)

(30.2)

(38.0)

(40.1)

Sentenced At or

Above Mandatory

Minimum Indicated

N Percent

632 (60.3)

5 (20.8)

109 (51.7)

150 (69.8)

274 (62.0)

94 (59.9)

TOTAL1

N

1,049

24

211

215

442

157

Percent

(100.0)

(100.0)

(100.0)

(100.0)

(100.0)

(100.0)

1

 Of the 1,165 sample cases, 118 were excluded due to missing or inapplicable information on role in the offense, sentence, or mandatory minimum

indicated.

2

 The "Peripheral Role" includes girlfriend, spouse, or courier with little knowledge of the drug activity.

3

 The "Minor" role includes unloaders, and drug carriers or couriers who were aware of the scope or hierarchy of the drug organization.

* Statistically Significant, P. < =.01

SOURCE: U.S. Sentencing Commission, 1992 Mandatory Minimum Data File.

67
Table 12A-12E

PROCESSING PATTERNS FOR CONTROLLED SUBSTANCE DEFENDANTS WITH MANDATORY MINIMUM INDICATED

-BY OFFENSE CHARACTERISTICS-

(October 1, 1989 through September 30, 1990)

60-MONTH MANDATORY MINIMUM INDICATED

OFFENSE

CHARACTERISTICS

TOTAL NUMBER1

ROLE IN THE OFFENSE4

Peripheral

Minor

Dist-Street Level

Dist-Above Street Level

Imp/Dist-Highest Levels

TOTAL

NUMBER1

(449)

(8)

(127)

(94)

(174)

(46)

Mandatory Minimum

Charged at Indictment

(in months)

Oor 12

(83)

12A

37.5

18.0

23.3

11.8

41.5

60 and above

(347)

62.5

82.0

76.7

88.2

58.5

Mode of

Conviction2

Plea

(358)

12B

75.0

84.9

78.7

76.4

82.6

Trial

(90)

25.0

15.1

21.3

23.6

17.4

Mandatory Minimum

Level at Conviction

(in months)

Oor 12

(157)

12C

75.0

33.9

31.9

28.7

60.9

60 and

above

Departure Status3

None

(292) || (335)

25.0

66.1

68.1

71.3

39.1

12D

62.5

74.8

81.7

73.3

71.7

Upward

(7)

0.0

0.8

3.2

0.6

4.4

Substantial

Assistance

(60)

12.5

15.0

7.5

17.4

6.5

Other

Downward

Sentence

(in months)

Under 60

(44) || (163)

25.0

9.5

7.5

8.7

17.4

12E*

75.0

43.3

30.9

31.0

41.3

60 and

Above

(286)

25.0

56.7

69.2

69.0

58.7

Table 13A-13E

120-MONTH MANDATORY MINIMUM INDICATED

OFFENSE

CHARACTERISTICS

TOTAL NUMBER1

ROLE IN THE OFFENSE4

Peripheral

Minor

Dist-Street Level

DIsL-Above Street Level

Imp/Dist-Highest Levels

TOTAL

NUMBER1

(385)

(13)

(70)

(53)

(185)

(64)

Mandatory Minimum

Charged at Indictment

(in months)

0

I (20)

13A

25.0

5.8

3.9

5.1

3.3

60

(62)

16.7

11.6

21.2

19.9

10.0

120 and

above

(287) j

58.3

82.6

75.0

75.0

86.7

Mode of

Conviction2

Plea

I (281)

13B

92.3

81.4

69.8

70.8

68.8

Trial

(104)

7.7

18.6

30.2

29.2

31.3

Mandatory Minimum Level

at Conviction

(in months)

0

I (68)

13C

61.5

18.6

11.3

14.1

23.4

60

(82)

15.4

17.1

30.2

23.8

12.5

120 and

above

(235) |

23.1

64.3

58.5

62.2

64.1

Departure Status3

None

(262)

13D

61.5

63.8

77.4

70.3

65.1

Upward

(4)

0.0

2.9

0.0

0.6

1.6

Substantial

Assistance

(73)

23.1

23.2

9.4

22.5

12.7

Other

Downward

(41)

15.4

10.1

13.2

6.6

20.6

Under

60

I (67)

13E"

76.9

21.4

17.0

13.5

12.7

Sentence

n months)

60

to 119

(99)

7.7

30.0

24.5

28.7

17.5

120 and

Over

(218)

15.4

48.6

58.5

57.8

69.8

The row and column totals Identified In parenthesis exclude missing cases. Each total represents the frequency of non-missing cases for independent (row) and dependent (column) variable. The calculation of all percentages excludes missing cases.

The "Guilty Plea' category Includes defendants sentenced subsequent to a plea of guilty or nolo contendere.

"Upward," "Substantial Assistance," and "Other Downward" departures Involve cases that have been sentenced above the guideline maximum or below the guideline minimum as established by the court.

The "Peripheral Role" Includes girlfriend, spouse, or courier with little knowledge of the drug activity. The "Minor" role includes unloaders, and drug carriers or couriers who were aware of the scope or hierarchy of the drug organization.

^Statistically Significant, P. < =.05.

"statistically Significant, P. < =.01.

SOURCE: U.S. Sentencing Commission, FY90 Mandatory Minimum Sample Data File.
categories, street level distributors are less likely to receive downward departures than defendants

in either lower or higher roles. (See Tables 12D, 13D.)

A longitudinal comparison of the effect of role (defined as degree of culpability) on sentence is

provided by the FJC analysis of FPSSIS files. (See Figure 6.) Those with mid-level roles, while

initially treated more like defendants with minor roles, were found to be treated over time more and

more like defendants with higher roles, a result not unlike the one presented for the sample

described above.

As indicated in Table 14, defendants known to have been involved in ongoing drug activity are just

as likely to be sentenced below mandatory minimums as those for whom only a single drug event

was known. Over 40 percent of defendants in both categories received sentences below the

mandatory minimums.

The proportion of cases sentenced at or above the indicated minimum varies considerably by drug

type. (See Table 15.) Defendants involved in cocaine and cocaine base offenses are significantly

more likely to receive sentences at or above the minimums (64.9% and 67.5%, respectively) than

those involved in marijuana and methamphetamine offenses (43.5% and 41.7%, respectively). The

likelihood of heroin defendants receiving full sentences falls between the two groups at 50 percent.

It appears that defendants involved in cocaine and cocaine base offenses are more frequently

charged and convicted under mandatory minimum provisions, while marijuana and

methamphetamine defendants receive greater reductions at the conviction/plea stage. (See Tables

16, 17.) The greatest single reduction from the 60-month level involves marijuana: 78.8 percent

of these defendants are originally indicted under mandatory minimum provisions, but only 49.5

percent are convicted under such provisions, a reduction of 29 percent between the two process

steps. (See Tables 16A, 16C.) At the 120-month level, methamphetamine defendants benefit from

the greatest reduction, with 74.2 percent indicted and 42.9 percent convicted under the indicated

statutory minimum, a reduction of 31 percent. (See Tables 17A, 17C.)

FPSSIS data provide historical background to the relevance of drug type to mandatory minimum

penalties. The FJC analysis found that cocaine and opiate defendants were equally likely to receive

sentences below the minimum in 1984, but by 1990 cocaine defendants were more likely to receive

sentences above the applicable minimum terms. (See Figure 7.)120 The percent of sentences

above the minimum for marijuana defendants was noticeably less until 1987 and increased

considerably by 1989.

Finally, variations due to prior criminal history were reviewed. As would be expected, first offenders

(54.4%) were found to be less likely than repeat offenders (61.7%) to receive a sentence at or above

the indicated mandatory minimum. (See Table 18.)

120The "cocaine" category includes both cocaine powder and cocaine base.

69
Figure 6

PERCENT OF DEFENDANTS WITH MANDATORY MINIMUM

DRUG BEHAVIOR SENTENCED TO AT LEAST THE

MANDATORY MINIMUM PRISON TERM

BY ROLE IN THE OFFENSE

(January 1984 through June 1990)

Equally Culpable -*-Mor e Culpable

84

SOURCE: FPSSIS Data Files, 1984-1990.

70
Table 14

SCOPE OF DRUG ACTIVITY

BY SENTENCE AT MANDATORY MINIMUM INDICATED

(October 1,1989 through September 30, 1990)

SCOPE OF

DRUG ACTIVITY

Total

Single Event

Multiple Events

Ongoing

Sentenced Below

Mandatory Minimum

Indicated

N

447

165

46

236

Percent

(40.6)

(44.1)

(32.6)

(40.3)

Sentenced At or

Above Mandatory

Minimum Indicated

N Percent

653 (59.4)

209 (55.9)

95 (67.4)

349 (59.7)

TOTAL1

N

1,100

374

141

585

Percent

(100.0)

(100.0)

(100.0)

(100.0)

1

 Of the 1,165 sample cases, 67 were excluded due to missing or inapplicable information on scope of the drug activity, sentence, or

mandatory minimum indicated.

SOURCE: U.S. Sentencing Commission, 1992 Mandatory Minimum Sample Data File.

71
Table 15

DRUG TYPE

BY SENTENCE AT MANDATORY MINIMUM INDICATED*

(October 1, 1989 through September 30, 1990)

DRUG TYPE

Total

Heroin

Cocaine

Cocaine Base

Marijuana

Methamphetamine

Other2

Sentenced Below

Mandatory Minimum

Indicated

N

453

47

185

77

87

49

8

Percent

(40.3)

(50.0)

(35.1)

(32.5)

(56.5)

(58.3)

(29.6)

Sentenced At or

Above Mandatory

Minimum Indicated

N

670

47

342

160

67

35

19

Percent

(59.7)

(50.0)

(64.9)

(67.5)

(43.5)

(41.7)

(70.4)

TOTAL

N

1,123

94

527

237

154

84

27

1

Percent

(100.0)

(100.0)

(100.0)

(100.0)

(100.0)

(100.0)

(100.0)

Of the 1,165 sample cases, 44 were excluded due to missing or inapplicable information on drug type, sentence, or

mandatory minimum indicated.

2

 The "Other" drug category includes any other controlled substance not previously listed.

Statistically Significant, P. < =.01.

SOURCE: U.S. Sentencing Commission, 1990 Mandatory Minimum Sample Data File.

72
LO

Table 16A-16E

PROCESSING PATTERNS FOR CONTROLLED SUBSTANCE DEFENDANTS WITH MANDATORY MINIMUM INDICATED

-BY OFFENSE CHARACTERISTICS-

(October 1, 1989 through September 30, 1990)

60-MONTH MANDATORY MINIMUM INDICATED

OFFENSE

CHARACTERISTICS

TOTAL

NUMBER1

Mandatory Minimum

Charged at Indictment

(in months)

Oor 12

TOTAL NUMBER1 || (481) || (87)

DRUG TYPE4

Heroin

Cocaine

Cocaine Base

Marijuana

Methamphetamine

Other

(58)

(221)

(67)

(101)

(22)

(12)

16A*

30.4

13.0

18.8

21.2

36.8

27.3

60 and above

(370)

69.6

87.0

81.2

78.8

63.2

72.7

Mode of

Conviction2

Plea

(386)

16B

86.2

79.2

80.6

77.0

81.8

100.0

Trial

(94)

13.8

20.8

19.4

23.0

18.2

0.0

Mandatory Minimum

Level at Conviction

(in months)

Oor 12

(169)

18C "

48.3

23.1

31.3

50.5

54.5

50.0

60 and

above

Departure Status3

None

(312) || (357)

51.7

76.9

68.7

49.5

45.5

50.0

16D

82.1

75.9

68.2

72.3

77.3

75.0

Upward

(7)

1.8

0.9

1.5

1.0

9.1

0.0

Substantial

Assistance

(65)

8.9

15.5

18.2

10.9

9.1

8.3

Cither

Downward

Sentence

(in months)

Under 60

(48) || (180)

7.1

7.7

12.1

15.8

4.6

16.7

16E"

50.0

26.7

34.3

55.5

45.5

25.0

60 and

Above

(301)

50.0

73.3

65.7

44.5

54.5

75.0

Table 17A-17E

120-MONTH MANDATORY MINIMUM INDICATED

OFFENSE

CHARACTERISTICS

TOTAL NUMBER1

DRUG TYPE4

Heroin

Cocaine

Cocaine Base

Marijuana

Methamphetamine

Other

NUMBER1

(415) |

(26)

(208)

(97)

(39)

(35)

(10)

Mandatory Minimum

Charged at Indictment

(

0

(23)

17A

12.0

5.5

4.2

7.9

6.4

0.0

In months)

60

(66)

16.0

18.1

12.6

21.1

19.4

0.0

120 and

above

(309)

72.0

76.4

83.2

71.0

74.2

100.0

Mode of

Conviction2

Plea

I (302)

17B

80.8

73.1

68.0

71.8

80.0

70.0

Trial

(113)

19.2

26.9

32.0

28.2

20.0

30.0

Mandatory Minimum Level

at Conviction

(

0

! (75)

17C

19.2

14.9

14.4

28.2

40.0

0.0

in months)

60

(87)

19.2

21.2

20.6

25.6

17.1

20.0

120 and

above

(253)

61.5

63.9

65.0

46.2

42.9

80.0

None

I (282)

17D

57.7

69.3

73.7

71.1

62.9

66.7

Departure Status3

Upward

(4)

0.0

0.0

1.1

2.6

5.7

0.0

Substantial

Assistance

(80)

30.8

21.5

12.6

18.4

17.1

33.3

Other

Downward

(42)

11.5

9.3

12.6

7.9

14.3

0.0

Sentence

(in months)

Under

60

(76)

17EU

34.6

12.1

14.4

28.2

40.0

30.0

60

to 119

(105)

11.5

29.0

20.6

33.3

22.9

10.0

120 and

Over

(233)

53.9

58.9

65.0

38.5

37.1

60.0

1

 The row and column totals Identified In parenthesis exclude missing cases. Each total represents the frequency of non-missing cases for Independent (row) and dependent (column) variable. The calculation of all percentages excludes missing cases.

2

 The "Guilty Plea" category Includes defendants sentenced subsequent to a plea of guilty or nolo contenders.

3

 "Upward," "Substantial Assistance," and "Other Downward" departures Involve cases that have been sentenced above the guideline maximum or below the guideline minimum as established by the court.

4

 The "Other" drug category Includes any other controlled substance not previously listed.

" Statistically Significant, P. < =.05.

"statistically Significant, P. < =.01.

SOURCE: U.S. Sentencing Commission, FY90 Mandatory Minimum Sample Data File.
Figure 7

PERCENT OF DEFENDANTS WITH MANDATORY MINIMUM

DRUG BEHAVIOR SENTENCED TO AT LEAST THE

MANDATORY MINIMUM PRISON TERM

BY TYPE OF DRUG

(January 1984 through June 1990, by semester)

Cocaine ~*~ Opiates Drugs + Weapon

121212121212 1

1984 1985 1986 1987 1988 1989 1990

SOURCE: FPSSIS Data Files, 1984-1990.

74
Table 18

CRIMINAL HISTORY BY

SENTENCE AT MANDATORY MINIMUM INDICATED*

(October 1, 1989 through September 30, 1990)

ANY

CRIMINAL

HISTORY

Total

No

Yes

Sentenced Below

Mandatory Minimum

Indicated

N

456

161

295

Percent

40.6

45.6

38.3

Sentenced At or

Above Mandatory

Minimum Indicated

N

668

192

476

Percent

59.4

54.4

61.7

TOTAL1

N

1,124

353

771

Percent

100.0

100.0

100.0

1

 Of the 1,165 sample cases, 41 were excluded due to missing information on the criminal history of the defendant,

sentence, or mandatory minimum indicated.

Statistically Significant, P. < =.05.

SOURCE: U.S. Sentencing Commission, 1990 Mandatory Minimum Sample Data File.

75
Relationships of Defendant Characteristics to Case Processing and Sentences

Finally, of importance to the disparity issue is differential treatment of defendants based on personal

characteristics. Relating defendant characteristics to case processing and sentencing patterns

reveals some interesting initial findings.121

Sex Variations

First, female defendants who commit offenses subject to mandatory minimum sentences are less

likely to be sentenced at or above the indicated mandatory minimum level than are male defendants.

Table 19 shows that 50.4 percent of females as compared to 61.5 percent of males receive indicated

penalties. As revealed by the case tracking tables (see Tables 20 and 21), females are charged

almost as frequently as males, but tend to be convicted less frequently. Males and females plead

guilty at the same rate at the 60-month level, but males are more likely to go to trial at the 120-

month level. The proportion of females receiving applicable minimums is further reduced by a

higher percentage of downward departures (see Tables 20D, 2ID), which is especially high for

females providing substantial assistance in the 120-month minimum indicated category. Using a

more sophisticated and robust statistical technique122 to explore the relationship between sex

and sentence indicates, however, that the statistically significant relationship between sex and

sentence above or below the mandatory minimum indicated disappears when considered in

conjunction with offense characteristics. Put differently, differences in offense behavior apparently

account for much of the apparent discrepancy in processing between males and females.

Figure 8, based on historical FPSSIS data, indicates that, consistently, a lesser proportion of females

have received applicable mandatory minimum sentences since 1984.

Race Variations

Race was classified in the sample as White, Black, Hispanic (including Black Hispanics and White

Hispanics), and all others. Table 22 describes the relationship between race and sentence at or

above the indicated statutory minimum. A greater proportion of Black defendants received

sentences at or above the indicated mandatory minimum (67.7%), followed by Hispanics (57.1%)

and Whites (54.0%). Reviewing case tracking in Tables 23 and 24 shows that a greater proportion

of Hispanics and a lesser proportion of Whites are originally indicted at the indicated mandatory

121Given the sample size and lack of sufficient time for stringent study, these findings cannot be considered conclusive,

and explanations for them cannot be provided. Accordingly, further study of these issues may be warranted.

122A probit analysis was used to test the significance of the relationship between sex and sentence. Probit is a

statistical technique that allows for the use of regression when there are only two possible outcomes (e^g., term of

imprisonment or not). Regression allows for consideration of the effects of one variable (e^g., sex) when controlling for

other explanatory variables (e^g., offense seriousness, criminal history, race, region, caseload). For more detailed

discussion, see Appendix F.

76
Table 19

DEFENDANTS SEX

BY SENTENCE AT MANDATORY MINIMUM INDICATED'

(October 1, 1989 through September 30, 1990)

DEFENDANT'S

SEX

Total

MaBe

Female

Sentenced Below

Mandatory Minimum

Indicated

N Percent

436 (39.9)

368 (38.6)

68 (49.6)

Sentenced At or

Above Mandatory

Minimum Indicated

N Percent

657 (60.1)

588 (61.4)

69 (50.4)

TOTAL1

N Percent

1,093 (100.0)

956 (100.0)

137 (100.0)

1

 Of the 1,165 sample cases, 72 were excluded due to missing information on the sex of the defendant, sentence, or

mandatory minimum indicated.

'Statistically Significant, P. < -.05.

SOURCE: U.S. Sentencing Commission, 1990 Mandatory Minimum Sample Data File.

77
Table 20A-20E

PROCESSING PATTERNS FOR CONTROLLED SUBSTANCE DEFENDANTS WITH MANDATORY MINIMUM INDICATED

-BY DEFENDANT CHARACTERISTICS-

(October 1, 1989 through September 30, 1990)

60-MONTH MANDATORY MINIMUM INDICATED

OFFENSE

CHARACTERISTICS

TOTAL NUMBER1

DEFENDANT'S SEX

Male

Female

TOTAL

NUMBER1

(451)

(384)

(67)

Mandatory Minimum

Charged at Indictment

(In months)

Oor 12

(81)

20A

18.8

19.4

60 and above

(348)

81.2

80.7

Mode of

Conviction2

Plea

(362)

20B

80.4

80.6

Trial

(88)

19.6

19.4

Mandatory Minimum

Level at Conviction

(In months)

0or 12

(157)

20C

33.6

41.8

60 and

above

(294)

66.4

58.2

Departure Status3

None

(336)

20D

76.1

68.7

Upward

(6)

1.1

3.0

Substantial

Assistance

(61)

13.7

13.4

Other

Downward

(45)

9.2

14.9

Sentence

(in months)

Under 60

(164)

20E

34.6

46.3

60 and

Above

(287)

65.4

53.7

00

Table 21A-21E

120-MONTH MANDATORY MINIMUM INDICATED

OFFENSE

CHARACTERISTICS

TOTAL NUMBER1

DEFENDANTS SEX

Male

Female

TOTAL

NUMBER1

(399)

(350)

(49)

Mandatory Minimum

Charged at Indictment

(In months)

0

(21)

21A

5.1

8.3

60

(64)

17.0

14.6

120 and

above

(298)

77.9

77.1

Mode of

Conviction2

Plea

(290)

21B

71.1

83.7

Trial

(109)

28.9

16.3

Mandatory Minimum Level

at Conviction

(in months)

0

(71)

21C

16.3

28.6

60

(84)

22.0

14.3

120 and

above

(244)

61.7

57.1

Departure Status3

None

(272)

21D

70.6

61.2

Upward

(4)

0.9

2.0

Substantial

Assistance

(75)

17.8

28.6

Other

Downward

(41)

10.8

8.2

Sentence

(in months)

Under

60

(69)

21E**

14.3

38.8

60 to

119

(103)

27.2

16.3

120

and

above

(226)

58.5

44.9

1

 The row and column totals Identified In parenthesis exclude missing cases. Each total represents the frequency of non-mlssing cases for Independent (row) and dependent (column) variable. The calculation of all percentages excludes missing cases.

2

 The 'Guilty Plea1 category Includes defendants sentenced subsequent to a plea of guilty or noto contendere.

3

 'Upward,* "Substantial Assistance," and "Other Downward" departures Involve cases that have been sentenced above the guideline maximum or below the guideline minimum as established by the court,

"statistically Significant, P. < =.01

SOURCE: U.S. Sentencing Commission, FY90 Mandatory Minimum Sample Data File.
Figure 8

PERCENT OF DEFENDANTS WITH MANDATORY MINIMUM

DRUG BEHAVIOR SENTENCED TO AT LEAST THE

MANDATORY MINIMUM PRISON TERM

BY SEX

(January 1984 through June 1990)

Percent

60

50 -

40 -

30 -

20 -

10 -

84

Male Female

• z ^ " " • " " " "

__—n c

U

I I I

85 86 87

Year

88 8 9 9 0

SOURCE: FPSSIS Data Files, 1984-1990.

79
Table 22

DEFENDANT'S RACE

BY SENTENCE AT MANDATORY MINIMUM INDICATED'

(October 1, 1989 through September 30, 1990)

DEFENDANT'S

RACE

Total

White

Black

Hispanic2

Other3

Sentenced Below

Mandatory Minimum

Indicated

N

435

182

132

115

6

Percent

(40.0)

(46.0)

(32.3)

(42.9)

(40.0)

Sentenced At or

Above Mandatory

Minimum Indicated

N Percent

653 (60.0)

214 (54.0)

277 (67.7)

153 (57.1)

9 (60.0)

TOTAL1

N

1088

396

409

268

15

Percent

(100.0)

(100.0)

(100.0)

(100.0)

(100.0)

Of the 1,165 sample cases, 77 were excluded due to missing information on the race of the defendant, sentence, or

mandatory minimum indicated.

2

 The "Hispanic" category includes both white Hipanics and black Hispanics, and as such the numbers reported

underrepresent black defendants.

3

 The "Other" category includes American Indians, Alaskan Natives, and Asian or Pacific Islanders.

Statistically Significant, P. < =.01.

SOURCE: U.S. Sentencing Commission, 1990 Mandatory Minimum Sample Data File.

80
Table 23A-23E

PROCESSING PATTERNS FOR CONTROLLED SUBSTANCE DEFENDANTS WITH MANDATORY MINIMUM INDICATED

-BY DEFENDANT CHARACTERISTICS-

(October 1, 1989 through September 30, 1990)

60-MONTH MANDATORY MINIMUM INDICATED

OFFENSE

CHARACTERISTICS

TOTAL NUMBER1

DEFENDANTS RACE

White

Black

Hispanic4

Other5

TOTAL

NUMBER1

(449)

(161

(146)

(135)

(7)

Mandatory Minimum

Charged at Indictment

(in months)

0or1 2

(81)

23A

26.3

19.0

10.6

16.7

60 and above

(346)

73.7

81.0

89.4

83.3

Mode of

Conviction2

Plea

(361)

23B

85.7

78.1

77.6

71.4

Trial

(87)

14.3

21.9

22.4

28.6

Mandatory Minimum

Level at Conviction

(in months)

0or 12

(157)

23C

39.8

28.8

36.3

28.6

60 and

above

(292)

60.3

71.2

63.7

71.4

Departure Status3

None

(334)

23D

70.8

77.2

77.4

71.4

Upward

(6)

2.5

0.0

1.5

0.0

Substantial

Assistance

(61)

19.9

13.8

6.8

0.0

Other

Downward

(45)

6.8

9.0

14.3

28.6

Sentence

(in months)

Under 60

(164)

23E

37.3

31.5

40.7

42.9

60 and

Above

(285)

62.7

68.5

59.3

57.1

Table 24A-24E

120-MONTH MANDATORY MINIMUM INDICATED

OFFENSE

CHARACTERISTICS

TOTAL NUMBER1

DEFENDANTS RACE

White

Black

Hispanic4

Other5

TOTAL

NUMBER1

(397)

(148)

(145)

(97)

(7)

Mandatory Minimum

Charged at Indictment

(In months)

0

(21)

24A

5.6

6.3

4.4

0.0

60

(64)

18.9

16.9

14.4

0.0

120 and

above

(297)

75.5

76.8

81.1

100.0

Mode of

Conviction2

Plea

(289)

24B*

81.8

63.5

72.2

85.7

Trial

(108)

18.2

36.6

27.8

14.3

Mandatory Minimum Level

at Conviction

(In months)

0

(71)

24C

23.7

14.5

14.4

14.3

60

(83)

22.3

20.7

20.6

0.0

120 and

above

(243)

54.1

64.8

65.0

85.7

Departure Status3

None

(272)

24D

62.8

71.8

77.4

71.4

Upward

(4)

1.4

0.7

1.1

0.0

Substantial

Assistance

(75)

25.0

18.3

11.8

14.3

Other

Downward

(39)

10.8

9.2

9.7

14.3

Sentence

(in months)

Under

60

(69)

24E

25.9

13.8

9.3

28.6

60 to

119

(103)

27.9

21.4

32.0

0.0

120

and

above

(224)

46.3

64.8

58.8

71.4

1

 The row and column totals Identified In parenthesis exclude missing cases. Each total represents the frequency of non-missing cases for Independent (row) and dependent (column) variable. The calculation of all percentages excludes missing cases.

2

 The "Guilty Plea" category includes defendants sentenced subsequent to a plea of guilty or note contenders.

3

 "Upward,' "Substantial Assistance," and "Other Downward" departures Involve cases that have been sentenced above the guideline maximum or below the guideline minimum as established by the court.

4

 The "Hispanic" category Includes both white HIspanlcs and black HIspanlcs, and as such the numbers reported underrepresent black defendants.

5

 The "Other" category Includes American Indians, Alaskan Natives, and Asian or Pacific Islanders.

* Statistically Significant, P. < =.05.

SOURCE: U.S. Sentencing Commission, FY90 Mandatory Minimum Sample Data File.
minimum level. Whites are more likely to plead guilty, and less likely to be convicted at their

indicated statutory minimum level.

-l no

Downward departures are most frequently granted to Whites and least frequently to Hispanics.

This is most evident at the 120-month level, at which Whites received substantial assistance

departures in 25 percent of their cases, compared to 18.3 percent of Blacks and 11.8 percent of

Hispanics. (See Tables 23D, 24D.) The effect of reductions below the mandatory levels for Whites

at indictment and conviction, combined with more frequent departures for substantial assistance,

appears to explain the overall lower probability of these defendants receiving sentences above the

mandatory minimums. Again, a more sophisticated technique124 was used to explore the

relationship between race and sentence. The statistically significant relationship between race and

sentence above or below the indicated mandatory minimum remained after consideration of factors

related to the nature of the offense and prior criminal record. In contrast to the apparent differences

between males and females, which disappears in the multivariate analysis, the differences among

Blacks, Hispanics, and Whites do not disappear when measured differences in offense behavior are

controlled. However, this is not to say that other unmeasured characteristics account for these

differences.

The difference found across race appears to have increased since 1984. This difference develops

between 1986 and 1988, after implementation of mandatory minimum drug provisions, and remains

constant thereafter. (See Figure 9.)

Citizenship Variations

Twenty-seven percent of sample defendants were non-U.S. citizens. No significant differences were

found in the proportion of these defendants who received sentences at or above the indicated

mandatory minimum when compared to U.S. citizens. (See Table 25.)

Age Variations

Finally, no consistent relationship was found between age of the defendant and proportion sentenced

at or above the indicated mandatory minimum level. (See Table 26.) While young defendants

(under 22) are the most often charged under indicated mandatory minimums originally, they are not

more likely to be convicted and sentenced under these provisions than the other age groups.

123It should be noted that this relationship might simply be a function of the difference in the willingness to cooperate

by different race/ethnic groups; or, in the worst case, it might reflect racial bias.

124A probit analysis was used to test the significance of the relationship between race and sentence. Probit is a

statistical technique that allows for the use of regression when there are only two possible outcomes (e^g., term of

imprisonment or not). Regression allows for consideration of the effects of one variable (e^g., race) when controlling for

other explanatory variables (e^, offense seriousness, criminal history, sex, region, caseload). For more detailed discussion,

see at Appendix F.

82
Figure 9

PERCENT OF DEFENDANTS WITH MANDATORY MINIMUM

DRUG BEHAVIOR SENTENCED TO AT LEAST THE

MANDATORY MINIMUM PRISON TERM

BY WHITE/NON-WHITE

(January 1984 through June 1990)

84

SOURCE: FPSSIS Data Files, 1984-1990.

83
Table 25

DEFENDANT'S CITIZENSHIP

BY SENTENCE AT MANDATORY MINIMUM INDICATED

(October 1, 1989 through September 30, 1990)

DEFENDANT'S

CITIZENSHIP

Total

U.S.

Other

Sentenced Below

Mandatory Minimum

Indicated

N Percent

452 (40.0)

332 (40.4)

120 (39.0)

Sentenced At or

Above Mandatory

Minimum Indicated

N Percent

678 (60.0)

490 (59.6)

188 (61.0)

TOTAL1

N Percent

1,130 (100.0)

822 (100.0)

308 (100.0)

1

 Of the 1,165 sample cases, 35 were excluded due to missing information on the citizenship of the defendant, sentence,

or mandatory minimum indicated.

SOURCE: U.S. Sentencing Commission, 1990 Mandatory Minimum Sample Data File.

84
Table 26

DEFENDANT'S AGE

BY SENTENCE AT MANDATORY MINIMUM INDICATED

(October 1, 1989 through September 30, 1990)

DEFENDANT'S

AGE

Total

Under 22

22-25

26-30

31 -35

36-40

41 -50

Over 50

Sentenced Below

Mandatory Minimum

Indicated

N

466

41

89

100

92

59

57

28

Percent

(40.2)

(36.0)

(39.7)

(44.8)

(45.1)

(37.1)

(36.3)

(36.4)

Sentenced At or

Above Mandatory

Indicated

N Percent

692

73

135

123

112

100

100

49

(59.8)

(64.0)

(60.3)

(55.2)

(54.9)

(62.9)

(63.7)

(63.6)

TOTAL1

N

1,158

114

224

223

204

159

157

77

Percent

(100.0)

(100.0)

(100.0)

(100.0)

(100.0)

(100.0)

(100.0)

(100.0)

1

 Of the 1,165 sample cases, 7 were excluded due to missing information on the age of the defendant, sentence, or

mandatory minimum indicated.

SOURCE: U.S. Sentencing Commission, 1990 Mandatory Minimum Sample Data File.

85
Historical tables, contributed by FJC, indicate that age variations in sentencing have decreased

since implementation of mandatory minimums, and even more since implementation of the

guidelines. (See Figure 10.)

Findings imply that defendants are treated differently under mandatory minimums, based on race

and sex, suggesting that Whites receive benefits in reduced application of mandatory minimum

provisions and sentences below such provisions. Exploration of all possible reasons for these

findings cannot be completed with available data sets, but such findings suggest a need for further

study in the area of sentencing disparity.

F. Sentence Severity under Sentencing Guidelines and Mandatory Minimum Provisions

One of the goals of mandatory minimum provisions strives to provide increased penalties for certain

classes of defendants. This section of the empirical study addresses this question of sentence

severity and contrasts sentencing patterns under sentencing guidelines with those patterns under

mandatory minimum sentencing provisions.

The operation of the federal sentencing guidelines is highly related to the operation of statutory

mandatory minimum penalties. When appropriately charged, guideline ranges for most defendants

will encompass or be higher than the mandatory minimum applicable. As previously noted, if

counts of conviction involve drug distribution or trafficking, the minimum guideline levels based on

offense conduct are set to induce penalties at the mandatory minimum desired by Congress.

Guideline requirements for use of a firearm, when charged, increase the underlying guideline range

by the 60 months required by statute.

Results from the sample study indicate that when convictions under mandatory minimums are

involved, the majority of sentencing ranges applicable under the guidelines encompass (22.4%) or

are above (71.6%) the mandatory minimum provision applied. In the remaining 5.8 percent of the

cases, the guideline range was below the applied mandatory minimum level; in such cases the

guidelines instruct the court to sentence at the mandatory minimum. (See Table 27.)

In only a few instances will sentencing ranges calculated by the guidelines be lower than mandatory

minimums imposed. Under one set of circumstances, combinations of mitigating factors (e.g.,

minimal role, acceptance of responsibility) and the lowest statutorily-directed drug amounts will

result in guideline ranges below the mandatory minimums applied. Under another set of

circumstances, guideline enhancements for prior felony convictions (if career criminal requirements

are not met) will not rise as rapidly as required under mandatory minimum provisions.

Thus, available data suggest that the sentencing guidelines have incorporated the mandatory

minimum provisions at the lowest drug amounts and, therefore, have met the congressional desire

to raise sentence levels for particular groups of defendants, if appropriately charged. In fact, with

the proportionality that is built into the guidelines' scheme, some defendants receive proportionally

higher sentences than would be indicated by the mandatory minimum.

86
Figure 10

PERCENT OF DEFENDANTS WITH MANDATORY MINIMUM

DRUG BEHAVIOR SENTENCED TO AT LEAST THE

MANDATORY MINIMUM PRISON TERM

BY AGE

(January 1984 through June 1990)

84

SOURCE: FPSSIS Data Files, 1984-1990.

87
Table 27

RELATIONSHIP OF GUIDELINE REQUIREMENTS TO MANDATORY MINIMUM

REQUIREMENTS FOR CASES WITH A MANDATORY MINIMUM CONVICTION

(October 1, 1989 Through September 30, 1990)

SENTENCE REQUIREMENTS

GUIDELINES RANGE HIGHER THAN MANDATORY

MINIMUM BY:

100 months or more

50 - 99 months

25 - 49 months

1-24 months

MANDATORY MINIMUM WITHIN GUIDELINES RANGE

GUIDELINES RANGE LOWER THAN MANDATORY

MINIMUM BY:

1-24 months

25 - 49 months

50 - 99 months

100 months or more

TOTAL

Number of

Defendants

103

101

168

251

197

23

17

11

1

872

Percent of

Defendants

11.8

11.6

19.3

28.8

22.6

2.6

1.9

1.3

0.1

100.0

1

 Of the 1,165 sample cases, 8 were excluded due to missing or inapplicable information on the guideline range or indicated

mandatory minimum. 285 cases with no mandatory minimum conviction were also excluded.

SOURCE: U.S. Sentencing Commission, 1990 Mandatory Minimum Sample Data File.

88
G. Summary of the Empirical Findings

This chapter provides a number of compelling topics that may warrant further research or

congressional action. Three major findings stand out:

• Although there are over 60 mandatory minimum sentencing provisions contained within the

Federal Criminal Code, very few are ever used in practice. In fact, only four statutes are

used with any regularity. These four statutes refer to either drug or weapons offenses, and

potentially contribute to substantial prison terms for increasing numbers of defendants.

• Defendants whose offense conduct and offender characteristics appear to warrant application

of mandatory minimum sentencing provisions do not receive those sentences approximately

41 percent of the time.

• Disparity may be entering the federal criminal justice system through mandatory minimums

in two ways: defendants who appear to be similar are charged and convicted pursuant to

mandatory minimum provisions differentially depending upon such factors as race, circuit,

and prosecutorial practices; and defendants who appear to be quite different with respect

to distinguishing characteristics (e.g., role and nature of the offense) receive similar

reductions in sentences below the mandatory minimum provisions.

89

Chapter 6

The Impact of Mandatory Minimum Sentences

on the Federal Criminal Justice System

This chapter provides relevant background information regarding the impact of mandatory minimum

sentencing provisions on the federal criminal justice system. The first two sections of the chapter

summarize the positions of the Judicial Conference of the United States and the congressionally

chartered Federal Courts Study Committee. The next section presents a detailed description of field

interviews conducted by the Sentencing Commission with judges, assistant U.S. attorneys, defense

attorneys, and probation officers that elicited views regarding mandatory minimums.125 The

following section reports initial results from a survey conducted by the Sentencing Commission that

sought answers to specific questions regarding mandatory minimums from members of the federal

court family. The final section of this chapter assesses the impact of mandatory minimum sentences

on the federal prisons.

A. Resolution of the Judicial Conference of the United States

The Judicial Conference of the United States and the judges of the twelve Circuit Courts of Appeals

that hear criminal cases have adopted resolutions that oppose mandatory minimum sentencing

statutes. In its formal resolution, the Conference urges Congress to "reconsider the wisdom

of mandatory minimum sentence statutes and to restructure such statutes so that the U.S. Sentencing

Commission may uniformly establish guidelines for all criminal statutes to avoid unwarranted

disparities from the scheme of the Sentencing Reform Act." The resolution goes on to state that

many judges have imposed long, non-parolable sentences on defendants whom they believe Congress

did not have in mind when it enacted mandatory minimum sentencing provisions.

B. Recommendations of the Federal Courts Study Committee

At the direction of Congress, the Chief Justice of the United States appointed a 15-member

committee to study the problems of the federal courts and provide a series of recommendations for

125Regrettably, because of limited time and resources, the Sentencing Commission was not able to survey the

opinions of the public, victims, or the Congress either as to their attitudes toward mandatory minimum sentencing

provisions, or their assumptions about the presumed effects of mandatory minimum sentences. This limitation must be

recognized as potentially creating an imbalance in the overall picture here reported. Steps to solicit the views of these

groups should be taken in the future.

126Appendix G provides copies of the Judicial Conference and Circuit resolutions. The Federal Circuit Court of

Appeals does not hear criminal cases.

90
improvement.127

 The Committee's extensive review included examination of mandatory minimum

sentencing statutes. In Chapter 7 of its April 2, 1990 report, the Committee wrote, "Congress should

repeal mandatory minimum sentence provisions, whereupon the United States Sentencing

Commission should reconsider the guidelines applicable to the affected offenses." The Committee

stated that mandatory minimums "create penalties so distorted as to hamper federal criminal

adjudication." By way of illustration, the report highlights Sections 841(b)(l)(B) and 844(a) of Title

21, United States Code. The former was enacted in 1986 and provides a minimum sentence of five

years for possession with intent to distribute five grams of crack cocaine. The latter, a 1988 statute,

created the same mandatory five-year sentence for simple possession of the same amount of crack.

The Committee wrote:

[The Sentencing Reform Act] contemplated sentences that would vary, for example,

depending on whether the defendant used a weapon ... . The recent mandatory

minimum sentence provisions ignore these offender and offense variables and in the

process inhibit the efforts of the Sentencing Commission to fashion a comprehensive

and rational sentencing system ... .

C. Litigation Regarding Mandatory Minimum Sentences

Mandatory minimum sentences have generated extensive litigation, especially in recent years as

Congress has increased the severity of mandatory penalties for drug and firearm offenses. Among

the principal challenges to mandatory minimum provisions are contentions that they offend the

Eighth Amendment and the Due Process clause of the Fifth Amendment. Criminal defendants have

also challenged mandatory minimum sentencing schemes on equal protection, double jeopardy, and

separation of powers grounds. Generally, these challenges have not succeeded.

A detailed summary of the litigation that has occurred in the federal courts over mandatory

minimum sentencing provisions is set forth in Appendix H.

127Committee members were Hon. Joseph F. Weis, Jr., Chairman, United States Court of Appeals for the Third

Circuit; J. Vincent Aprile, II, General Counsel of the Kentucky State Department of Public Advocacy; Hon. Jose A.

Cabranes, United States district court for the District of Connecticut; Hon. Keith M. Callow, Chief Justice, Supreme

Court of Washington; Hon. Levin H. Campbell, United States Court of Appeals for the First Circuit; Edward S. G.

Dennis, Jr., Assistant Attorney General for the Criminal Division of the U.S. Department of Justice; Hon. Charles E.

Grassley, United States Senate; Morris Harrell, Locke Purnell Rain Harrell; Hon. Howell T. Heflin, United States

Senate; Hon. Robert W. Kastenmeier, United States House of Representatives; Hon. Judith N. Keep, United States

District Court for the Southern District of California; Rex E. Lee, Jr., President, Brigham Young University; Hon.

Carlos J. Moorhead, United States House of Representatives; Diana Gribbon Motz, Frank, Bernstein, Conway &

Goldman; and Hon. Richard A. Posner, United States Court of Appeals for the Seventh Circuit.

91
D. Sentencing Commission Evaluation Interviews: Views from the Field

The Sentencing Reform Act of 1984 requires the Sentencing Commission to study and report on the

operation of the guidelines sentencing system. As part of this ongoing assessment, the Sentencing

Commission visited twelve judicial districts, selected randomly by circuit, during the period

December 1990 through March 1991, and conducted interviews with judges, assistant U.S. attorneys

(AUSAs), federal and private defense attorneys, and probation officers.

The field interviews of court personnel at the twelve sites provided opinion data on the impact of

the mandatory minimum sentencing laws used in this Report. A total of 234 interviews were

conducted, including 48 judges, 72 AUSAs, 48 defense attorneys, and 66 probation officers.128

It is important to note that data from a sample of this size may not necessarily be representative of

all federal court personnel across the system. However, the interviews do contain a wide range of

opinions from respondents with different interests and diverse caseloads. Certain patterns and

groupings of opinions emerge from the data that provide some insight into the reasons that judges,

prosecuting and defense attorneys, and probation officers favor, oppose, or remain neutral about

mandatory minimum sentencing statutes.

Method

Each interview was conducted by a team of two persons. At least one member of the research team

was from the evaluation staff of the Sentencing Commission. Other interview team members were

from the Sentencing Commission's legal staff, technical assistance staff, or were federal probation

officers. The structured interviews each lasted approximately one hour and consisted of 45-50

questions appropriate to the respondent's profession. The interviews contained questions about

caseload and caseflow, plea bargaining, dispute resolution, guideline application, departures and

appeals, roles and relative influence of the court participants, general impact of the sentencing

guidelines, and the effects of mandatory minimums on the federal courts. The majority of opinions

on the issue of mandatory minimums were offered in response to the following question:

In your opinion, how are mandatory minimum sentence requirements, as distinct from

the guidelines, affecting the criminal justice system?

It should be noted that this is an open-ended question (as opposed to one designed to elicit a

specific response), and answers varied according to what was salient to each respondent. In an

effort to invite candid responses, respondents were assured of confidentiality and anonymity at the

beginning of the interview. When the data were compiled and categorized, it was discovered that

respondents also mentioned mandatory minimums in response to other open-ended questions about

the guidelines. This occurred frequently enough to warrant study of other questions as well.

Consequently, when any of the interview questions about guidelines triggered a comment on

128In an additional twelve interviews the question relevant to this Report was not answered, due either to the

respondent not having a caseload dealing with mandatory minimums or to time constraints.

92
mandatory minimums, that response was considered along with the direct question on mandatory

minimums.

Responses were separated into three general categories: (1) favorable to the mandatory minimums,

(2) opposed or unfavorable, and (3) neutral. Within each of these categories, the response was

coded with a few descriptive words and placed in the appropriate category (favorable, unfavorable,

or neutral) and the context of the remark was considered in order to determine its classification.

Similar responses might require different placement depending on the context in which statements

were made. For example, "Result in More Trials" was categorized as favorable for one AUSA who

cast it that way, and negative for other AUSAs and defense attorneys. Similarly, "Result in Longer

Prison Sentences" was a criticism by one AUSA and a neutral comment by another. In most cases

it was clear whether the response was favorable or unfavorable. In the instances where the response

was not clear, the comment was considered neutral. Statements that were observations of fact having

neither a positive nor negative connotation were coded neutral, as were obviously neutral responses

such as "No Opinion." All responses were coded for each of the four groups of respondents: judges,

AUSAs, defense attorneys, and probation officers. (Views expressed by each respondent are

provided in Appendix I.) Results are summarized in Tables 1-5 (one for each group plus a summary

table). The following sections discuss the findings for each group of participants as summarized in

the tables.

Judges' Views on the Impact of Mandatory Minimum Sentencing

In general, the judges were unfavorable in their comments concerning the impact of mandatory

minimum statutes. (See Table 1.) Of the 48 judge respondents, 38 made unfavorable comments,

although 6 of these 38 judges noted some favorable features as well. (See Table 5.)

The unfavorable comment most frequently expressed by judges (n = 18) was that the mandatory

minimum sentencing requirements were too harsh. Most of the judges who described the mandatory

minimum sentences as too harsh believed that the mandatory minimum penalties were too high in

general. Five judges specified that the minimums were too harsh for offenders whose role in a

criminal operation was minimal. One judge whose response was coded "Too Harsh" said: "Very

bad. Congress did not give much thought to the minimums, and picked figures out of the air. The

minimums are grossly excessive."

The second most frequent negative response to questions on the mandatory minimums was that they

eliminate judicial discretion. Fifteen judges expressed this view, including one who said, 7 think

they are distorting the criminal justice system and what's appropriate. They leave the sentencing judge

with no discretion. The guidelines say that you can depart, but with mandatory minimums you can't.

They make no sense." Eleven of the 48 judges felt that mandatory minimums cause more trials. One

judge stated that they are "Weighing [the system] down. Defendants facing mandatory minimums

have nothing to lose so they go to trial. Therefore there are more trials. We're further behind.

Sentences should be as close to the act as possible. Punishment is now further from the act than it

should be." As shown in Table 1, judges offered other unfavorable comments related to a number

of different topics. For example, the effect on prisons (Prison Overcrowding) was a concern for

93
Table 1. Judges' Views on

Mandatory Minimums

Favorable Comments

1. Promote Deterrence

2. Generally Appropriate

3. Appropriate for Drug Offenses

4. Appropriate for Weapons Offenses

5. Encourage cooperation

6. Easy to Sentence

7. Promote Respect for the Law

8. Do Not Consider Prior Record

the Impact of

(N = 48)*

Number

2

1

1

1

1

1

1

1

Unfavorable Comments

1. Too Harsh

(Too Harsh in General)

(Too Harsh for Minimal Participants)

2. Eliminate Judicial Discretion

3. Result in More Trials

4. Result in Prison Overcrowding

5. Increase Recidivism/Discourage Rehabilitation

6. Unnecessary with Guidelines

7. Result in Longer Trials

8. Unfairly Consider Prior Record

9. Force Pleas Unfairly

10. Do Not Eliminate Disparity

11. Racially Discriminatory

12. Do Not Deter Crime

13. Worse than Guidelines

14. Increase Disparity

15. Generally Inappropriate

Number

18

13

5

15

11

7

4

3

2

2

1

1

1

1

1

1

1

94
Neutral Comments

1. Hard to Distinguish from Guidelines

2. Same Number of Trials as Before

3. Guideline Ranges Higher

4. Unsure of Deterrent Effect

5. No Opinion

6. Result in More Prosecutions

7. Encourage Pleas

8. Result in Increased Prison Use

9. Public Favors Mandatory Minimums

10. Unsure If More Trials

Number

5

3

3

2

2

2

1

1

1

1

The number of comments is greater than the number of Judges interviewed (N = 48) due to

multiple comments by some respondents.

95
seven of the judges, while four feared that long prison terms would not allow any rehabilitation of

offenders and eventually would result in increased recidivism.

While the numbers of favorable and unfavorable comments by judges related to mandatory minimum

sentencing laws explain their reactions to some degree, the force of their expression tells more about

their opinions. For example, the range of responses that were categorized as "Too Harsh" included

such remarks as: "Generally too harsh. On balance they are helpful if they may have some general

deterrent value. If there is no evidence to support this then there is no value ... " This fairly mild

negative comment can be contrasted with the following: "They are rotten. They are ruining the

system. They are one of the worst things that have happened . . . They are grossly unjust."

In contrast to the strongly negative view of most of the judges interviewed, eight judges made

favorable comments concerning mandatory minimums. However, six of these tempered their

favorable comments with unfavorable statements, leaving two judges who made exclusively positive

responses. One example of a "mixed opinion" is a judge who said "Mandatory minimums are good

sometimes. People know what they will get. A good deterrent. Sometimes people just happen to get

caught or they are minimal participants and in those cases, mandatory minimums are unjust... . It

takes away the discretion of the court to be able to take into account individual characteristics." Other

favorable comments included the opinion that mandatory minimums are appropriate for at least some

offenders. One judge expressed this opinion by saying "/ think the mandatory minimums are all

right. I've seen a few cases in which a 924(c) consecutive count really inflates the sentence,

particularly when you start with a drug offense." Two judges felt that mandatory minimum sentences

have a deterrent effect on crime.

Eight judges made neutral comments concerning the impact of mandatory minimums. The most

frequent neutral comment of judges was that the effects of mandatory minimums are hard to

distinguish from those of the guidelines.

Assistant US. Attorneys1 Views on the Impact of Mandatory Minimum Sentencing

In contrast to the judges, assistant U.S. attorneys were more evenly divided in their comments about

the impact of mandatory minimums. (See Table 2.) Of the 72 prosecuting attorneys interviewed,

38 mentioned favorable effects, although 11 of the 38 also included unfavorable comments. Thus,

there were 27 attorneys who had no negative opinions, while 23 made no positive remarks. (See

Table 5.)

The most frequent favorable opinion is reflected by the "Generally Appropriate" category with 16

AUSAs expressing this in various ways. Examples of responses that were coded "Generally

Appropriate" ranged from "The minimums as a whole are good" to "allfor them"

A positive effect mentioned by nine AUSAs was that the mandatory minimums reduce disparity.

For example, one AUSA expressed the view that "they are doing what they should be doing-[setting]

a consistent standard across the country." It appeared from the interview data that those AUSAs who

96
Table 2. Assistant U.S. Attorneys' Views on the

Impact of Mandatory Minimums (N=72)*

Favorable Comments |

1. Generally Appropriate

2. Reduce Disparity

3. Encourage Cooperation

4. Promote Deterrence

5. Encourage Pleas

6. Incapacitate Serious Offenders

7. Result in Fewer Appeals

8. Promote Certainty

9. Result in Longer Sentences

10. Result in More Trials

11. Promote Public Protection

12. Raise Guideline Levels

13. Result in More Prosecutions

Number

16

9

7

5

5

2

2

2

1

1

1

1

1

Unfavorable Comments

1. Result in More Trials

2. Too Harsh

(Too Harsh for Minimal Participants)

(Too Harsh for First Offenders)

(Too Harsh for Marijuana Plant Offenses)

3. Encourage Manipulation

4. Result in Prison Overcrowding

5. Reduce Prosecutorial Discretion

6. Eliminate Judicial Discretion

7. Racially Discriminatory

8. Increase Disparity

Number

24

6

4

1

1

4

2

2

1

1

1

97
Unfavorable Comments

9. Increase Recidivism/Discourage Rehabilitation

10. Result in More Appeals

11. Unnecessary with Guidelines

12. Inconsistent with Guidelines

Number

1

1

1

1

Neutral Comments

1. Guideline Ranges Higher

2. Same Number Trials as Before

3. Hard to Distinguish from Guidelines

4. Guideline Ranges Lower

5. No Opinion

6. Result in Longer Sentences

7. Result in More Prosecutions

8. Guidelines Broader

9. Result in Increased Prison Use

Number

8

6

5

4

4

1

1

1

1

The number of comments is greater than the number of Assistant U.S. Attorneys interviewed

(N=72 due to multiple comments by some respondents.

98
said "reduce disparity" were contrasting the impact of mandatory minimums with pre-guideline

sentencing practices rather than with the current guideline system. There were also AUSAs who

thought that mandatory minimums encourage cooperation by offenders and cited this as an

advantage. One AUSA expressed it this way: "They have a positive effect. They induce people to

cooperate and the ability to bargain around them enables us to dispose of a lot of cases at an early

stage." The next most frequent favorable comment was that the mandatory minimum sentences have

a deterrent effect on crime. According to one AUSA, "When we send some guy [away] for long

periods we hear about the talk on the street. People who before were only being sent away for short

periods, which were a joke, are now gone for a long time. This has a very positive effect. Another

effect that was viewed positively by four AUSAs was that mandatory minimums encourage pleas.

Although the number of AUSAs with favorable comments exceeded the number with unfavorable

comments, the margin was narrow. In addition to the 11 AUSAs who had mixed views, 23 held

totally negative views of the mandatory minimums (as contrasted with 27 who had totally positive

views). By far, the most frequent unfavorable comment of the group was that they result in more

trials. Twenty-four AUSAs mentioned this as a negative effect, while one considered it to be a

positive result. Typical of the negative comments was: "The downside is in the people who are

facing them, if they can't fashion a plea to avoid them there's a tendency to go to trial." Similar

responses included: "They are causing more trials because defendants feel that they may as well take

a run at it since they're facing time if they get convicted or plead guilty."

The second most frequent negative comment by AUSAs (6 times) was that the mandatory penalties

are too harsh. Four of the six AUSAs limited their criticism to cases involving minimal participants;

one attorney singled out first offenders; and another cited offenses involving marijuana plants.

Another unfavorable comment from four AUSAs was that the mandatory minimums encourage

manipulation. As noted in subsequent interviews, defense attorneys and probation officers also

mentioned this effect. One AUSA said, "There is very little that anyone can say if mandatory

minimums are involved. The question is how to get around it. Either that or the people are not

pleading. It's one or the other." Another AUSA spoke in terms of judges' actions: "Judges use this

[relevant conduct] to get under the mandatory minimums. It is up to the court to find out what is

relevant conduct and this depends on the judge."

Eleven of the AUSAs had mixed opinions about the mandatory minimums. An example of one

recorded response from an AUSA who saw both advantages and disadvantages is: "They are good

for three reasons: (1) they put bad people away, (2) they give the government a strong bargaining

position to settle cases, (3) it gives the government a handle to force cooperation. Bad effects: Trouble

is that about one-third of Black youth are in the criminal justice system. I think I am for mandatory

minimums, but [there's a] need to distinguish first-time offenders. Too severe-10 years for a first

offense . . . Need some built-in flexibility in the system."

Eleven AUSAs made neutral observations about the effects of the mandatory minimums. Common

responses in the neutral category were that the guideline ranges are higher, or that the effects of

99
mandatory minimums are hard to distinguish from those of the guidelines, and (in contrast to several

of their colleagues) there are about the same number of trials as before.

In addition to the general question regarding mandatory minimums asked of all respondents, AUSAs

(excluding supervising AUSAs) were asked the following additional questions:

Do you ever charge particular counts because they carry mandatory minimum

sentences?

Are there circumstances when you might not charge an offense that carries a

mandatory minimum sentence?

Based on the responses to these two questions, it was determined that ten AUSAs had no cases in

which a mandatory minimum might be applicable. Of the remaining 46 AUSAs, 15 said that they

always charged a mandatory minimum if possible; four reported that they charged according to the

facts of the case without reference to mandatory minimums but that mandatory minimums would be

charged if applicable; one stated that AUSAs have no influence over the charge; and 26 reported

that they did not always charge a mandatory minimum even when it was warranted by the facts in

the case.

The 26 respondents who reported that they did not always charge a mandatory minimum whenever

possible offered a variety of explanations. Eight AUSAs said that they might not charge a mandatory

minimum if the offender was cooperating. For example, one AUSA reported: "In the case of extreme

cooperation, well cut the defendant a break to avoid the mandatory minimum." Another four AUSAs

said they might not charge a mandatory minimum if the offender had a lesser role in the offense.

For example, in discussing the charging of mandatory minimums one said, "If the person was not

heavily involved, I would not charge that person as compared to the more involved player." Other

respondents stated that they might not charge a mandatory minimum if the offense involved a first

offender (n=l); if it encouraged a plea bargain (n=l); if the guidelines were higher than the

mandatory minimum (n=l); if the guidelines were lower than the mandatory minimum (n=l); if

the resulting sentence was too harsh (n=l); while others (n=3) offered no clear explanation.

Finally, six respondents specifically mentioned the armed career criminal statute as opposed to

mandatory minimums in general. Four said that they would not charge the offender as an armed

career criminal if the resulting sentence was too harsh or unjust, and two said that they would not

charge the offender as an armed career criminal if the offender was already a career offender under

the guidelines. For example, one AUSA reported: "When you have some person who technically

qualified for the armed career criminal and in our judgment this would be unjust, we do not charge

them at all and give it to the state. I have done this a number of times."

In summary, it appears that mandatory minimums are not always charged when supported by the

facts of the case. As reported by the AUSAs, the two general reasons for this are: 1) offender

cooperation, and 2) the perceived harshness of mandatory minimums as applied to minimal

participants.

100
Defense Attorneys* Views on the Impact of Mandatory Minimum Sentencing

Defense attorneys overwhelmingly were unfavorable in their reactions to mandatory minimums. (See

Table 3.) There was no significant difference between federal defenders and private attorneys, and

therefore they were treated as one group. Only one of the 48 defense attorneys made any favorable

comment about mandatory minimums, and this was offered along with unfavorable statements. The

only advantage that any defense attorney saw in mandatory minimum sentencing laws was that they

encourage cooperation.

Twenty-one of the defense attorneys said that mandatory minimum penalties are too harsh. Of these,

13 thought they are generally too harsh, three said they are too harsh for first offenders, and three

said they are too harsh for minimal participants. "Too Harsh for Weapons Offenses" and "Too Harsh

for Marijuana Plant Offenses" were each mentioned once. As was true for the AUSAs, the strength

of defense attorneys' opposition varied from relatively mild to very strong. Two examples illustrate

the range of responses: (1) "/ am opposed in principle to determinate sentencing. Mandatory

minimums are unnecessarily long and they force me to take cases to trial that I might not otherwise.

(2) "Horribly. I can't tell you how many times mandatory minimums significantly exceed the

guideline range with inequitable results, particularly for first-time offenders. There is no flexibility in,

say, a diminished case. The results are hideous."

The response "Result in More Trials" was another negative effect cited by 17 defense attorneys as

was "Eliminate Judicial Discretion" (cited 10 times). Referring to judges' lack of discretion, one

defense attorney protested, "There's nothing good about them. Federal judges are appointed and

know cases. Congress knows nothing about how to go about [sentencing.]" Nine of the defense

attorneys were concerned about prison overcrowding. For example, "[They are] overburdening the

prison system. We can't warehouse that many people without building more prisons, and there's no

money for that."

The next most frequent negative comment was a non-specific response that was coded "Generally

Inappropriate." As with the "Too Harsh" category, there was variance in the strength of the

response. Comments ranged from "Any mandatory minimum has an impact. They take away hope,

and are always worse for the client, never better" to "There is no single worse evil. For the judicial

system to work, people have to believe in it. When you see how it works [with mandatory minimum

sentences], it exhausts any fertile soil in the judicial system."

As can be seen from Table 3, some of the other negative responses that occurred with less frequency

(3 times or fewer) include "Create Disparity," "Make the Plea Process More Difficult," "Do Not Deter

Crime," and "Encourage Manipulation." Although there was only one mixed opinion that contained

both positive and negative statements, 19 respondents made either neutral comments or neutral

along with negative comments. The most frequent neutral response of defense attorneys (13) was

that the effects of mandatory minimums are hard to distinguish from those of the guidelines.

101
Table 3. Defense Attorneys' Views on the Impact of

Mandatory Minimums (N = 48)*

Favorable Comments Number

1. Encourage Cooperation

Unfavorable Comments

1. Too Harsh

(Too Harsh in General)

(Too Harsh for First Offenders)

(Too Harsh for Minimal Participants)

(Too Harsh for Weapons Offenses)

(Too Harsh for Marijuana Plant Offenses)

2. Result in More Trials

3. Eliminates Judicial Discretion

4. Result in Prison Overcrowding

5. Generally Inappropriate

6. Create Disparity

7. Make the Plea Process More Difficult

8. Do Not Deter Crime

9. Encourage Manipulation

10. Force Pleas Unfairly

11. Racially Discriminatory

12. Create Unfairness

13. Engender Public Disrespect for the Law

14. Unnecessary with Guidelines

Number

21

13

3

3

1

1

17

10

9

6

3

3

2

2

1

1

1

1

1

102
Neutral Comments

1. Hard to Distinguish from Guidelines

2. Guideline Ranges Are Higher

3. Result in Longer Sentences

4. Unsure of Deterrent Effect

5. Same Number of Trials as Before

6. No Opinion

Number

13

2

1

1

1

1

The number of comments is greater than the number of defense attorneys interviewed (N = 48)

due to multiple comments by some respondents.

103
Probation Officers' Views on the Impact of Mandatory Minimum Sentencing

The number of probation officers who responded with unfavorable comments exceeded by a wide

margin those who responded favorably. (See Table 4.) Of the 66 probation officers questioned, 41

made only unfavorable comments, while five made solely favorable comments, and five others had

mixed opinions.129 (See Table 5.)

Sixteen probation officers expressed the view that the mandatory minimum sentences were too harsh.

Nine of the 16 specified a particular type of offender for whom this type of sentence was too harsh

(i^e., drug offenders, minimal participants, or youthful offenders). For example, one probation officer

said, They are often too harsh and result in young offenders who have high quantities of drugs

getting long sentences. You have 18-year-olds getting 30-year sentences. We will wind up

warehousing a lot of people who will be very bitter when they get out of prison."

The next two most frequently cited disadvantages occurred roughly the same number of times:

"Result in Prison Overcrowding" (13) and "Eliminate Judicial Discretion" (12). Eight of the

probation officers felt that, in view of the guidelines, the mandatory minimum sentencing laws are

unnecessary. An example of that viewpoint: "/ don't see the point of mandatory minimums; the

guidelines can set a better range." Seven of the 66 probation officers felt that the mandatory

minimums create disparity, and an equal number observed that they encourage manipulation. One

probation officer explained how disparity occurred and suggested a means of manipulation: "They're

[mandatory minimums] an absolute mess. They give the U.S. Attorneys such a hammer, and they use

it indiscriminately. They try to get around them via substantial assistance." Another probation

officer offered the following scenario: "Judges find a way to depart to accommodate the plea bargain.

The impact is not applying them when they should be applied. [In a methamphetamine case], there

was a mandatory minimum often years, the plea bargain was for 60 months, and the sentence was

for 60 months." In contrast to this, two of the probation officers interviewed believed that the

mandatory minimums reduce disparity. As one explained, "[It] takes away AUSA bargaining power,

which is good, because it gets away from behind-the-door settlements."

Ten probation officers found advantages to the mandatory minimums, but one-half of these also saw

disadvantages. Three respondents commented that the mandatory sentences promote deterrence.

For example, one probation officer said that "there is some impact — a message to the community that

certain behaviors will be punished severely ... . There is a message to the community that you will

have to do time in federal court." Other advantages included "Promote Certainty" and "Promote

Public Protection."

More frequently than any other group, probation officers gave neutral responses to questions about

mandatory minimum sentences. Fifteen either expressed no opinion or gave a neutral response such

as "Hard to Distinguish from the Guidelines" or "Higher than the Guidelines."

129The remaining respondents were totally neutral.

104
Table 4. Probation Officers' Views on the Impact

of Mandatory Minimums (N = 66)*

Favorable Comments || Number

1. Promote Deterrence

2. Generally Appropriate

3. Reduce Disparity

4. Promote Certainty

5. Encourage Cooperation

6. Promote Public Protection

3

2

2

1

1

1

Unfavorable Comments

1. Too Harsh

(Too Harsh in General)

(Too Harsh for Drug Offenders)

(Too Harsh for Minimal Participants)

(Too Harsh Young Offenders)

2. Result in Prison Overcrowding

3. Eliminate Judicial Discretion

4. Unnecessary with Guidelines

5. Create Disparity

6. Encourage Manipulation

7. Cause More Trials

8. No Deterrent Effect

9. Make the Plea Process More Difficult

10. Result in Increased Prison Violence

11. Result in Increased Welfare Cost

12. Racially Discriminatory

Number

16

7

5

2

2

13

12

8

7

7

4

2

1

1

1

1

105
Neutral Comments

1. Hard to Distinguish from Guidelines

2. No Opinion

3. Guideline Ranges Are Higher

4. Result in Longer Sentences

5. Result in an Older Offender Population

6. Encourage Pleas

7. Eliminate Judicial Discretion

8. Unsure of Deterrent Effect

9. Probation Unavailable

Number

8

6

4

2

2

1

1

1

1

The number of comments is greater than the number of probation officers interviewed (N=66)

due to multiple comments by some respondents.

106
Conclusions

Three of the four groups of participants responded unfavorably to mandatory minimum sentencing

laws, with assistant U.S. attorneys providing the most favorable sentiment to these provisions. (See

Table 5.) Of the 72 AUSAs interviewed, 53 percent believed there were at least some positive

effects brought about by mandatory minimums. Thirty-eight percent of the AUSAs provided only

favorable comments. The two most frequent favorable comments offered by this group fell into the

categories of "Generally Appropriate" and "Reduce Disparity." A substantial number of AUSAs

(32%) made only unfavorable comments about the mandatory minimums, however. The

disadvantages they cited did not differ greatly from unfavorable comments by other groups, with the

two most frequently mentioned negative effects being "Result in More Trials" and "Too Harsh.

When compared as groups, judges, defense attorneys, and probation officers responded similarly to

each other, both in terms of frequency and specific effects of mandatory minimums. Unfavorable

comments far outnumbered favorable ones among judges, defense attorneys, and probation officers.

Sixty-seven percent of judges gave only unfavorable comments. The number of probation officers

who saw only negative effects was also fairly high — 62 percent of those interviewed. Only one

defense attorney interviewed had any positive comment.

Overwhelmingly, the most frequent response given by judges, defense attorneys, and probation

officers to the question about the effects of the mandatory minimums was that they are too harsh.

The rest of the negative comments fell into similar patterns of frequency for judges, defense

attorneys, and probation officers. Judges' second most frequent negative response was that

mandatory minimums eliminate judicial discretion. This was third (in order of frequency) for both

defense attorneys and probation officers. Judges' third most frequent negative response was "Result

in More Trials," which was second according to defense attorneys, but not mentioned by probation

officers. The fourth negative effect cited by judges was "Prison Overcrowding," which was also

fourth by defense attorneys and second by probation officers.

Few of the judges, defense attorneys, and probation officers made favorable comments. Of the 48

defense attorneys who responded, none gave an answer that was wholly favorable. Similarly, there

were only two out of 48 judges (4%) and five out of 66 probation officers (8%) who noted only

positive effects. The favorable effect most often cited by these few judges and probation officers was

"Promote Deterrence."

Taken as a whole, 15 percent of respondents (34 of 234) made only favorable comments about

mandatory minimums, while 58 percent of all respondents (135 of 234) made only unfavorable

comments. Ten percent of those who were asked the question gave mixed responses.130 If

answering with unfavorable comments can be equated to opposition to the mandatory minimums, and

responding with favorable comments is the same as favoring them, it might be concluded that there

is considerable opposition to mandatory minimum sentencing laws by the court personnel

130The remaining percentage of respondents made only neutral comments.

107
Table 5. Summary of Views on the Impact of

Mandatory Minimums

Judges

Assistant U.S. Attorneys

Defense Attorneys

Probation Officers

Total

Favorable

2

27

0

5

34

Unfavorable

32

23

39

41

135

Mixed*

6

11

1

5

23

Neutral**

8

11

8

15

42

Total

48

72

48

66

234

* "Mixed" includes all respondents who made both favorable and unfavorable comments.

** "Neutral" includes respondents who made only neutral comments.

108
interviewed in this study. Support for such laws appears to come primarily from federal prosecutors,

but even in that group, opinions are divided.

E. Preliminary Sentencing Commission Survey Results: Additional Views from the

Field

As part of the Sentencing Commission's four-year evaluation of the sentencing guidelines, district

court judges, probation officers, assistant U.S. Attorneys, and defense attorneys were surveyed on

a range of issues concerning the operation of the guidelines. During May 1991, surveys were sent

to 745 active and senior district court judges, 750 probation officers, 750 assistant U.S. attorneys,

475 panel attorneys, and 278 assistant federal defenders.131 As of late June, 1,261 (42.1%) of

the 2,998 individuals sampled had returned a completed survey. These 1,261 respondents are

composed of 306 judges, 279 assistant U.S. attorneys, 443 probation officers, 152 panel attorneys,

and 81 assistant federal defenders.

Four questions in the survey dealt with mandatory minimum sentences:

• Should Congress raise, lower, eliminate, or not change current mandatory minimum sentences

for drug distribution?

• Should Congress raise, lower, eliminate, or not change current mandatory consecutive sentences

for possession of a firearm during commission of a violent or drug trafficking offense?

• Should Congress establish mandatory minimum or mandatory consecutive sentences for

additional offenses?

• When Congress wants to raise sentences imposed for certain offenses, what action should

Congress take?

Each of the questions was accompanied by a set of close-ended responses. (See Tables 6-9 for the

responses and frequency of occurrence for each group.)

From these preliminary findings, two general patterns can be detected. First, there are differences

among the respondents in the degree of their support for mandatory minimum sentences. A majority

of judges, panel attorneys, and federal defenders are in favor of their elimination and/or reduction

for both drug distribution and possession of a firearm. Probation officers and especially assistant

U.S. attorneys show more support for the current system of mandatory minimum sentences as they

apply to these offenses.

131The samples of probation officers, assistant U.S. attorneys, and panel attorneys were randomly selected from

their individual populations nationwide. Only probation officers who write presentence reports and assistant U.S.

attorneys with criminal caseloads were eligible for selection.

109
TABLE 6

MANDATORY MINIMUM SENTENCES FOR DRUG DISTRIBUTION

RAISE MM SENTENCE

LOWER MM SENTENCE

ELIMINATE MM

MAKE NO CHANGES

DONT KNOW/NO OP

MULTIPLE RESPONSES

NO ANSWER

District Judge

Frequency

7

19

190

54

25

-

11

Percent

2.3

6.2

62.1

17.6

8.2

-

3.6

AUSA

Frequency

18

36

29

151

38

.

9

Percent*

6.5

12.9

10.4

54.1

13.6

.

3.2

Probation Officer

Frequency

53

35

99

208

37

1

11

Percent*

12.0

7.9

22.3

47.0

8.4

0.2

2.5

Panel Attorney

Frequency

9

27

79

16

14

.

8

Percent*

5.9

17.8

52.0

10.5

9.2

-

5.3

Federal Defender

Frequency

-

7

72

1

1

.

1

Percent*

-

8.6

88.9

1.2

1.2

.

1.2

TABLE 7

MANDATORY MINIMUM SENTENCES FOR POSSESSION OF A FIREARM

RAISE MM SENTENCE

LOWER MM SENTENCE

ELIMINATE MM

MAKE NO CHANGES

DONT KNOW/NO OP

NO ANSWER

District Judge

Frequency

10

13

150

98

22

14

Percent*

3.3

4.2

49.0

32.0

7.2

4.6

AUSA

Frequency

40

15

17

181

21

7

Percent

14.3

5.4

6.1

64.9

7.5

2.5

Probation Officer

Frequency

71

14

49

279

19

12

Percent*

16.0

3.2

11.1

63.0

4.3

2.7

Panel Attorney

Frequency

12

19

63

37

13

8

Percent

7.9

12.5

41.4

24.3

8.6

5.3

Federal Defender

Frequency

1

12

61

5

3

1

Percent*

1.2

14.8

75.3

6.2

3.7

1.2

* Percentages sum to greater than 100 when two responses were given. Respondents who gave more than two responses are only included in the MULTIPLE RESPONSES

category.
TABLE 8

MANDATORY MINIMUM SENTENCES FOR ADDITIONAL OFFENSES

NO

YES

DON'T KNOW/NO OP

NO ANSWER

District Judge

Frequency

236

17

40

13

Percent

77.1

5.6

13.1

4.2

AUSA

Frequency

99

90

81

9

Percent

35.5

32.3

29.0

3.2

Probation Officer

Frequency

205

106

119

13

Percent

46.3

23.9

26.9

2.9

Panel Attorney

Frequency

105

15

25

8

Percent*

69.1

9.9

16.5

5.3

Federal Defender

Frequency

75

3

2

1

Percent

92.6

3.7

2.5

1.2

TABLE 9

ACTION CONGRESS SHOULD TAKE TO RAISE SENTENCES

SET A MM SENTENCE

RAISE THE STATUTORY MAXIMUM

SPECIFY OFFENSE LEVEL

DIRECT USSC

OTHER RESPONSE

MULTIPLE RESPONSES

NO ANSWER

District Judge

Frequency

19

68

31

165

31

1

21

Percent*

6.2

22.2

10.1

54.0

10.1

0.3

6.9

AUSA

Frequency

84

12

48

141

14

5

17

Percent*

30.1

4.3

17.2

50.5

5.0

1.8

6.1

Probation Officer

Frequency

74

18

79

270

9

7

18

Percent*

16.7

4.1

17.8

61.0

2.0

1.6

4.1

Panel Attorney

Frequency

13

34

27

55

15

2

16

Percent*

8.6

22.4

17.8

36.2

9.9

1.3

10.5

Federal Defender

Frequency

2

25

17

26

15

1

4

Percent*

2.5

30.9

21.0

32.1

18.5

1.2

4.9

* Percentages sum to greater than 100 when two responses were given. Respondents who gave more than two responses are only included in the MULTIPLE RESPONSES

category.
The second preliminary finding is that, without exception, each of these groups would prefer to raise

sentences for individual offenses by some means other than mandatory minimum sentences. Among

judges, assistant U.S. attorneys, and probation officers, a majority of respondents would prefer to

have Congress direct the Sentencing Commission to study the issue and, where necessary, amend

the base offense level or various adjustments for the offense in question. Across all five groups, a

majority indicated that they would rather Congress establish a new base offense level under the

sentencing guidelines or direct the Sentencing Commission to study the issue.

In summary, respondents were somewhat divided about the status of current mandatory minimum

sentences for drug distribution and firearm possession. However, the groups were much more

uniform in their support of the guidelines system as the means for altering sentencing structures,

either by directive from Congress or by action of the Sentencing Commission.

F. Impact of Mandatory Minimum Statutes on Federal Prison Population

The Crime Control Act of 1990 directs the Sentencing Commission to provide a projection of the

impact of mandatory minimum sentencing provisions on the federal prison population. In a dynamic

system, such as the federal criminal justice system, disentangling the effects of a single set of

policies is problematic at best. Policies regarding crime in a single jurisdiction may change on a

daily basis due to such issues as rising crime rates, changes in prosecutorial or investigative

priorities, increased funding or staffing for arresting and prosecuting agencies, and public attitudes

toward crime. When policy considerations spread through 94 districts, the potential for variation

expands exponentially.

In addition to the vagaries of a dynamic criminal justice system, particular difficulties arise when

attempting to disentangle the effects of mandatory minimum provisions from the sentencing

guidelines which largely incorporate these provisions within their basic structure. When the

Sentencing Commission developed guidelines for statutes containing mandatory minimum provisions,

the penalties inherent in these provisions were incorporated within the particular guidelines. For

example, specific drug amounts provided in the drug distribution statute formed the base around

which the drug distribution guidelines were built. Section 841(b)(l)(A) of title 21 calls for a

mandatory minimum term of imprisonment of ten years for a person convicted of distributing, for

example, five kilograms of cocaine. The guidelines provide for a base offense level that ensures

adherence to the statutory ten-year minimum.

Historical Overview of Prison Impact Projections

To understand the impact of mandatory minimum provisions in 1991, it is useful to revisit prior

Sentencing Commission research related to prison projections and the initial set of guidelines;

guidelines that incorporated the critical Anti-Drug Abuse Act of 1986 mandatory minimum

provisions. The Sentencing Commission, in conjunction with the Federal Bureau of Prisons,

developed a sophisticated prison impact model to carefully consider the impact of the guidelines

112
on correctional facilities and services and reported to Congress the projected impact with respect

to those guidelines. 2

This earlier research attempted to disentangle the impact of the Anti-Drug Abuse Act of 1986, the

career offender provisions of the Sentencing Reform Act of 1984, and the sentencing guidelines.

While both the drug laws and the career offender provisions were incorporated within the structure

of the guidelines, incorporating the effects of these initiatives within the prison projections due to

the guidelines would have been misleading at best. Careful attention to methodological issues and

substantive concerns, as well as the recency of the data relative to the enactment of the law (sample

data were drawn from the 1985 cohort of defendants sentenced in the federal system), make this

separate examination of the Anti-Drug Abuse Act of 1986 especially insightful given the present

question of discerning the impact of mandatory minimum provisions on the federal prison

population.

In very summary fashion, the original prison impact findings suggest that:

• Probation without any conditions of confinement will be reduced from approximately 42.4

percent to 18.9 percent;

• Probationary sentences will decline greatly under the guidelines for especially serious

crimes, but will not change radically for other crimes (although probation will more likely

have some conditions attached to the sentence);

• Average time served will increase from a pre-guideline practice of 15.3 months to 28.7

months under the guidelines, with the greatest increase concentrated in a few, more violent

offenses; and

• For most offenses that involve neither the new drug laws or the career offender provisions,

the average sentence lengths will not increase appreciably. (See Figure 1.) The marked

increase in federal prison populations will result more from the Anti-Drug Abuse Act of

1986 and the career offender provisions of the Sentencing Reform Act than from the

guidelines.133

In developing prison projections, numerous unknowns prevent projecting population increases with

absolute certainty. To attempt to account for those unknowns, the Sentencing Commission's earlier

132For more complete discussion of the data, methodology, and findings resulting from the Commission's earlier

research, see "Chapter Seven - Prison Impact," U.S. Sentencing Commission, Supplementary Report on the Initial

Sentencing Guidelines and Policy Statements, 53-75, June 18, 1987; and Block and Rhodes, "Forecasting the Impact

of the Federal Sentencing Guidelines," 7 Behavioral Sciences & the Law 1, 51-71 (1989).

133Block and Rhodes, supra note 118, at 59-64.

113
Figure 1.

Time served under pre-guideline practices and projected impact of Anti-Drug Abuse Act

of 1986, career offender provision, and guidelines

80

60

CD

>

CD 4 0

00

CDE

CD

CO

® 20

[ | Additiona l tim e du e t o guideline s

\yl :;:';;:| Additiona l tim e du e t o caree r

^•••:''':^

;:'l offende r provisio n

Additiona l tim e du e t o Anti-Dru g

Abus e Ac t o f 198 6

Pre-guidelin e averag e tim e serve d

Robbery Against

Persons

Drugs Burglary Firearms

Offense Type

I ncome

Tax

Fraud

T h e averag e tim e serve d I s reporte d fo r al l o f fenders , Inc l ud l n g thos e no t sentence d t o prison ,

w h o ar e counte d a s havin g 0 month s o f Imprisonment . Imprisonmen t Include s prison , Jail , an d

communit y correction s confinement .

Note : Th e Impac t o f th e guideline s o n tw o othe r offense s I s expectee d t o b e negative . Th e

averag e tim e serve d fo r propert y offense s I s expecte d t o decreas e t o 6. 5 month s fro m th e pre-g u I de l I n e

6 . 8 months . Fo r Immigratio n offenses , th e tim e serve d I s likel y t o decreas e t o 5. 2 month s fro m

t h e pre- g u I de l I n e 5.7 .

114
research provided a low growth scenario that assumed low increase in the prosecution rate; the other

model assumed high growth in the prosecution rate. These growth rate assumptions provide the base

growth in prison population assuming that the new drug laws, the career offender provisions, and

the guidelines did not exist. Figure 2 illustrates the results of the prison projections over a 15-year

period given the low and high growth assumptions, and adding the impact of the drug laws, career

offender, and guidelines. Taking a conservative look (see Figure 2), one can see that the Anti-Drug

Abuse Act of 1986 along with a relatively low rate of increase in prosecutions result in a doubling

of the federal prison population over a ten-year period (from approximately 42,000 in 1987 to

approximately 85,000 in 1997). If one looks at the high growth scenario, the increase due to the

drug laws is even more dramatic; from a population of 42,000 to one of approximately 108,000.

The results of this research were clear. While the guidelines were expected to provide some

increase in the federal prison population, the greatest expected impact could be attributed to the

Anti-Drug Abuse Act of 1986 and to some incremental extent, the career offender provisions of the

Sentencing Reform Act of 1984. In a recent paper by Gaes, et al.,134 the performance of the

projection models appears to be holding up quite well. For example, the model projected a threeyear growth, from 1987 to 1990, to a population of 59,909. On December 31, 1990, the Federal

Bureau of Prison's actual population was 59,400. Although, as the authors point out, they do not

expect the model to perform as well over the long run, it provides increased confidence in the

general appropriateness of such a model and lends credence to the earlier findings.

Impact of Mandatory Minimum Provisions on the Federal Prison Population, 1990

To further analyze the impact of mandatory minimum provisions on the federal prison population,

the Sentencing Commission reviewed cases sentenced under the sentencing guidelines in fiscal year

1990. This analysis attempts to identify the increase in sentences caused by the mandatory

minimums, above those sentences that would have been appropriate under the guidelines if no

enhanced statutory penalties had been applied.

In order to develop prison population estimates, the 12.5 percent sample utilized for the empirical

analysis component of this Report (see Chapter 5) was used to project the impact of drug trafficking

and weapons cases, and the complete Sentencing Commission data file was used to analyze the

smaller number of cases falling under other mandatory minimum provisions.135

To determine population estimates for drug and other provisions (except 18 U.S.C. § 924(c)), a

number of assumptions are required. If a court sentenced at a mandatory minimum above the

134Gaes, Simon, and Rhodes, "20/20 Hindsight: Effectiveness of Simulating the Impact of Federal Sentencing

Legislation on the Future Prison Population" (paper in draft) (1991).

135Cases analyzed from the 12.5 percent sample were appropriately weighted (by 8) to achieve annual estimates.

115
Figure 2.

Prison Population Projections

CO

c

CO

CO

3

O

3

a

o

a

c

o

CO

CL

1 6 0

1 4 0

1 2 0

1 0 0

a. Low-growth scenario b. High-growth scenario

Chang e du e to guideline s

Chang e du e t o caree r offende r Impac t

Chang e du e to Anti-Dru g Abus e Ac t o f 198 6

Unde r pre-g u I de l I ne sentencin g practice s an d growt h In

pro s ec u tIon s

1987 1992 1997 2002 1987 1992 1997 2002

Year

a.Low-growt h scenario . Th e baselin e projection s fo r 1987-198 9 ar e

base d o n th e averag e annua l growt h fo r th e year s 1982-1986 . There -

after , crimina l case s wer e assume d t o gro w a t a rat e o f 1 percen t pe r

year .

b.HI g h-growt h scenario . Th e baselin e projection s fo r 1987-199 1

a r e base d o n th e averag e annua l growt h fo r 1982-1986 . Projectio n

f o r 1992-200 2 ar e base d o n th e averag e annua l growt h tha t repro -

duce s th e sam e 15-yea r percentag e growt h fo r 1987-200 2 tha t wa s

observe d fo r 1971-1986 .
guideline range, the model assumes that absent the mandatory minimum the court would have

sentenced within the guideline range. The model provides a range of projections, with the low

impact projection assuming the court would have sentenced at the top of the range, and the high

impact projection assuming a sentence at the low end of the range. When the mandatory mjnimum

fell within the guideline range and the court sentenced at the mandatory minimum, the model

assumes the court could have sentenced lower if no mandatory minimum was applicable. If the

court sentenced above the mandatory minimum or departed below the guideline range, no impact

of the mandatory minimum was assumed (ue., the court would have imposed the same sentence and

was not restricted by the statutory provision).

In firearms cases, when 18 U.S.C. § 924(c) is applied, the guidelines impose the additional 60-

month statutory enhancement, but do not incorporate additional firearm enhancements within the

underlying guideline range. If the 924(c) conviction was not present, a weapons enhancement under

the guidelines was likely. To estimate the impact of the weapons provisions, the guidelines were

recalculated to achieve the appropriate range assuming no mandatory minimum. The

projection model assumes that the court would have sentenced at the same relative position (or

higher) within the recalculated guideline range as was actually sentenced within the range upon

which the 60 months was added.

Finally, when 18 U.S.C. § 924(c) was charged with no charges involving underlying drug or violent

behavior (106 cases in fiscal year 1990), the model assumes that absent a mandatory minimum

conviction the lowest charge would have been gun possession (18 U.S.C. § 922(g)), resulting in a

guideline range of 8-14 months. The low impact model assumes no impact, while the high impact

model assumes the court may have sentenced the case as low as eight months for the gun

possession.

The low impact projections obtained using this methodology suggest that 981 offenders in fiscal year

1990 received sentences above the applicable guideline range for an estimated total of 4,412

additional years of prison imposed due to the mandatory minimum sentencing provisions. The high

impact projections suggest that 2,121 offenders received higher sentences due to mandatory

minimums with an estimated total of 6,971 additional years of prison imposed. Utilizing the annual

cost per inmate for FY90,137 as estimated by the Federal Bureau of Prisons, these findings

suggest that mandatory minimum provisions generated between $79 million and $125 million

additional costs for offenders sentenced in FY90. It should be reiterated that these projections are

for prison impact above that attributable to the guidelines, and that the guidelines generally build

within their structure many of the applicable mandatory minimum provisions.

136Two offense levels were added to drug cases and three to five levels for violent offenses, depending on how the

gun was used.

137The annual cost per inmate amounts to $17,909 (provided byt he Federal Bureau of Prisons). This figure

represents the cost of housing an inmate including administrative costs. It does not include construction costs.

117
Chapter 7

Alternative Methods by which Congress

Can Influence Sentencing Policy

Within a Guidelines Framework

As prior chapters of this Report have detailed, when Congress enacted the Sentencing Reform Act

of 1984, it ushered in an historic new approach to determinate sentencing through which the

sentencing decisions of federal judges would be circumscribed by a comprehensive set of binding

guidelines to be written and refined over time by a permanent, expert body. In opting for this

approach to sentencing, Congress opened the door to new methods by which the legislative branch

could continue to shape sentencing policy. This section of the Sentencing Commission's Report

describes a number of such alternative means, together with the advantages and disadvantages of

each from the Sentencing Commission's perspective.

A. Formal and Informal Avenues Prior to Guidelines

Prior to creation and implementation of the sentencing guidelines, Congress used a number of

means, formal and informal, to influence sentencing policy. The formal statutory methods included:

(1) enactment of a variety of different forms of mandatory minimum sentencing provisions;138

(2) requirements that sentences imposed for certain offenses be served consecutively to any other

federally imposed sentence; (3) enactment of increases in statutory maximum penalties;

and (4) enactment of special-purpose sentencing statutes.141 While each of these statutory

approaches remain available to Congress today, enactment of the Sentencing Reform Act makes fixed

and/or minimum statutory penalties a less necessary means of legislating sentencing policy.

138See statutory provisions listed in Appendix A. For a discussion of the forms mandatory minimum provisions

take, see Chapter 1 ("A Note on Terminology").

139See e.g. 18 U.S.C. § 3146(b)(2), requiring that a term of imprisonment imposed for failure to appear after

being released on bail "shall be consecutive to the sentence of imprisonment for any other offense." See also supra

note 1, as to 18 U.S.C. § 924(c).

140See, e^g., Act of August 9, 1989, Pub. L. 101-73, Title IX, § 961 (b), 103 Stat. 499, increasing the maximum

term oFirnprisonment for bank embezzlement offenses, codified at 18 U.S.C. § 656, from five years to twenty years,

and Act of November 29, 1990, Pub. L. 101-647, Title XXV, § 2504(b), 104 Stat. 4861, further increasing that

maximum from twenty years to thirty years.

141See eg., 21 U.S.C. § 848(e)-(r) (death penalty sentencing provisions for certain drug-related murders); former

18 uiZ"'§ § 5005-6, §§5010-26, repealed by Pub. L. 98-473, Title II, § 218(a)(8), Oct. 12, 1984, 98 Stat. 2027

(pertaining to sentencing of youthful offenders).

118
Less formal means of influencing sentencing policy used by Congress in the past include sense of

the Senate or House (or Congress) resolutions,142 oversight hearings, and a variety of actions

undertaken by individual Members within the purview of their legislative offices. These nonstatutory means likewise remain fully available to Congress as an institutional body, and to

individual Members, in the era of sentencing guidelines. Indeed, the creation by Congress of a

permanent, expert body to develop sentencing policy provides a single focal point for such

initiatives, and the Sentencing Commission today actively encourages formal and informal

congressional input into the guideline improvement process. From its inception the Sentencing

Commission has invited Members or their staff representatives to attend Sentencing Commission

meetings and public hearings on guideline proposals. Additionally, the Sentencing Commission has

corresponded with individual Members about diverse issues of sentencing policy, compiled and

provided data on sentences imposed and other related sentencing information in response to

congressional requests, and conducted briefings for Members and staff on various guidelines issues.

B. New Approaches in a Guidelines Era

As stated at the outset of this chapter, the advent of a comprehensive guidelines system provides

new opportunities for Congress to work through and with the Sentencing Commission to implement

sentencing policy. From Congress's standpoint, it may be important to note that these avenues, like

mandatory minimums, can achieve a high degree of sentence uniformity throughout the federal court

system for targeted offense conduct. At the same time, these guideline-focused means preserve court

discretion to appropriately consider the offense and offender characteristics of individual defendants

in sometimes highly atypical cases. Among the alternative approaches that Congress may wish to

consider carefully are the following.

Changes in Statutory Maximums, Accompanied by Expressed Congressional Intent for Guideline

Responses

Since the promulgation of the initial guidelines in 1987, the Sentencing Commission has issued

guideline amendments in response to a variety of legislative enactments that increased the maximum

fine, term of imprisonment, or other penalties for diverse offenses. Noteworthy among the recent

laws that spawned guideline changes were the Anti-Drug Abuse Act of 1988,143 the Financial

Institution Reform, Recovery and Enforcement Act of 1989 (FIRREA),144 and the Crime Control

Act of 1990.145

142See, e^., section 239 of Pub. L. 98-473, Title II, c. II, Oct. 12, 1984, 98 Stat. 2039, stating the sense of the

Senate regarding factors federal judges should consider during the period between passage of the 1984 Sentencing

Reform Act and implementation of the sentencing guidelines.

143Pub. L. 100-690, 102 Stat. 4181 (1988).

144Pub. L. 101-73, 103 Stat. 183 (1989).

145Pub. L. 101-647, 104 Stat. 4789 (1990).

119
Furthermore, the Sentencing Commission has recommended a number of changes in maximum

statutory penalties in conjunction with its statutory mandate to "recommend to the Congress that it

raise or lower the grades, or otherwise modify the maximum penalties, of those offenses for which

such an adjustment appears appropriate."146 In its report to Congress dated February 12, 1991,

the Sentencing Commission enumerated changes in statutory penalty provisions in four areas147

in which existing maximums appeared to the Sentencing Commission to be inconsistent with the

goals of sentencing reform.

Increasing (or reducing) statutory maximum penalties affords the Sentencing Commission latitude

to adjust the sentencing guidelines accordingly. For the Sentencing Commission to be appropriately

responsive, however, it is important that such changes be accompanied by legislative history (in the

form of Committee or Conference Report language, statements of a bill's managers, statements by

an amendment sponsor, or a combination of these) indicating congressional intent with respect to

sentencing consequences in general, and guideline amendment consequences in particular.149

While the Sentencing Commission has a responsibility to carefully consider any statutory penalty

changes and accompanying legislative history within the context of its overall statutory mandate, the

Sentencing Commission welcomes any sentencing policy guidance Congress may see fit to provide

in conjunction with enacted changes in penalty maximums.

Specific Statutory Directives to the Sentencing Commission

The Sentencing Commission's organic statute contained a detailed list of both specific and general

directives from Congress that the Sentencing Commission endeavored to follow rigorously in

developing the initial guidelines. Subsequently, Congress has enacted ten additional instructions

to the Sentencing Commission regarding desired amendments to the guidelines, of which seven may

fairly be regarded as specific in nature (in the sense that the statutory directive states the

congressional will in terms of a designated, resulting guideline offense level that the Sentencing

Commission amendments are to achieve). Among the seven instructions that direct specific

increases in guideline offense level, some are more constraining on the Sentencing Commission than

others.150

14<528 U.S.C. § 994(r).

147The four areas included offenses in deprivation of civil rights, assault, The Travel Act, and manslaughter.

148The Commission is pleased to note that the Senate recently incorporated its recommendations into S.1241, the

Violent Crime Control Act of 1991.

149Congress may prefer to couple statutory maxima amendments with general or specific directives to the

Sentencing Commission, discussed in subsections B and C infra, to ensure that the congressional will on sentencing

policy is clearly communicated and implemented.

150For example, section 401 of the 1990 Crime Control Act directed the Commission to amend its kidnapping

guideline by including four additional, sentence-enhancing specific offense characteristics, each of which would

increase the offense level by a specified number. As a policy matter, although not necessarily as a matter of law, the

Commission generally viewed the directive as setting forth enhancements that it should neither reduce nor exceed. In

120
The enacted specific directives to the Sentencing Commission may be described briefly

as follows:

1) Minimum offense level of 26 for common carrier operation under influence of alcohol

or drugs if death results; minimum level of 21 if serious bodily injury results;

2) Increase of at least 2 offense levels, minimum offense level of 26 for drug

offenses within federal prisons;

3) Increase of at least 2 offense levels, minimum offense level of 26 for drug

offenses involving minors;

4) Increase of at least 2 offense levels, minimum offense level of 26 for

importation of controlled substances by aircraft or other vessel;

5) Increase of at least 2 offense levels for "ice" methamphetamine;

6) Minimum offense level of 24 for bank fraud if defendant derives more than

$1,000,000 in gross receipts; and

7) Minimum increase in kidnapping guideline for certain offenses involving

child victims of 4 levels if victim intentionally maltreated, 3 levels if victim

sexually exploited, 3 levels if for money or other consideration victim placed

in care of person who does not have legal right to such custody, 2 levels if

defendant allowed child victim to be subjected to any of above-specified

conduct.

Specific directives to the Sentencing Commission potentially offer advantages over mandatory

minimum sentencing provisions. First, when carefully crafted in terms of policy considerations and

technical detail, specific directives permit the Sentencing Commission to integrate the

congressionally-desired penalty into the guidelines structure in an appropriate, consistent manner.

The effect of this integration is to prescribe the requisite, higher level of punishment for the targeted

offense, while also permitting meaningful distinctions among defendants based on each defendant's

role in the offense, whether or not the defendant accepted responsibility, the defendant's criminal

history, and other pertinent factors specified in the guidelines.

Second, integration of congressionally-desired punishments into the guidelines structure permits

courts to sentence below the guideline range for atypical mitigating factors, subject to the

government's right to appellate review if it believes the resulting sentence is unreasonable. Thus,

contrast, all other enacted specific directives to the Commission have required a minimum guideline enhancement but

have clearly left it open for the Commission to elect a greater increase.

151These directives are set forth in their entirety in Appendix J.

121
by focusing its attention on the design of the guidelines instead of on a mandated sentence to be

imposed by courts for every conviction of a particular offense, Congress can achieve its objective

of uniform, appropriately severe punishment, while preserving some discretion for sentencing courts

to individualize sentencing in appropriate cases.

Third, Congress can construct specific guideline amendment instructions to ensure that a desired

sentence enhancement will be applied broadly to an entire class of related offense conduct, rather

than to only one or several offenses, as typically is the case with mandatory minimums.

While specific directives to the Sentencing Commission offer advantages over enactment of

mandatory minimums, these directives potentially also have some disadvantages. First, if not

carefully crafted, narrowly drawn directives can present the Sentencing Commission with technical

and conceptual difficulties in faithfully implementing the congressional instructions without creating

anomalies in the guidelines structure.152 Second, to the extent that the Sentencing Commission

finds it necessary to deviate from a literal interpretation of a specific statutory instruction in order

to implement that directive consistent with the Sentencing Reform Act and overall guidelines

scheme, there is an increased likelihood of litigation, and an enhanced likelihood of its success.

Third, specific directives, while clearly within the congressional prerogative, are potentially in

tension with the fundamental Sentencing Reform Act objectives of delegating to an independent,

expert body in the judicial branch of the government the finer details of formulating sentencing

policy, and revising that policy in light of actual court sentencing experience over time.153

General Statutory Directives to the Sentencing Commission

Subsequent to the implementation of the guidelines, Congress has also provided the Sentencing

Commission with additional directives couched in more flexible terms. In appearance, these

directives follow the form of many of the original instructions to the Sentencing Commission

embodied in the 1984 Sentencing Reform Act. In substance, the three general directives that the

Sentencing Commission has received involve the following:

1) Appropriate penalty increases in fraud guidelines for conduct resulting in conscious

or reckless risk of serious personal injury; Sentencing Commission to consider

appropriateness of minimum 2-level enhancement of offense level for such conduct;

152For example, two directives in the 1990 crime bill presented the Commission with problems of this nature.

First, a directive to amend the drug trafficking guideline to provide a two-level enhancement for offenses involving

"ice"'methamphetamine, while seemingly straightforward, created considerable technical definitional and guideline

integration problems. A second directive requiring specific enhancements for child kidnapping offenses failed to take

into account key guideline principles of "relevant conduct" (U.S.S.G. §1B1.3).

153See, e^., discussion in the Report of the Senate Judiciary accompanying the Sentencing Reform Act (S. Rep.

No. 225T98th Cong., 1st Sess. (1983)) at pp. 160, 169, 177-78.

154The general directives are set forth in their entirety in Appendix J.

122
2) Provision for substantial period of incarceration for violation of any of several bank

fraud, bribery, and embezzlement statutes if conduct substantially jeopardizes the

safety and soundness of a federally insured financial institution; and

3) Study and amendment of guidelines for sexual crimes against children to provide

more substantial penalties if Sentencing Commission determines current penalties

are inadequate.

In the Sentencing Commission's view, general statutory instructions offer many advantages. Flexible

directives permit the Sentencing Commission to apply its expertise in implementing congressional

objectives consistent with the overall guidelines scheme and Sentencing Reform Act goals. They

also permit consideration of the full range of sentencing information that the Sentencing Commission

otherwise would consider in the absence of additional legislative instruction. Moreover, to the extent

that there may be concern that the Sentencing Commission will either underestimate (or

overestimate) the congressionally-desired response, general directives may be accompanied by

legislative history suggesting in more specific language the kind of Sentencing Commission response

that would fulfill congressional expectations.155

Like their more specific counterparts, general statutory directives need to be carefully drafted to

ensure that they can be readily implemented without creating anomalies and new sentencing

disparities.156

C. Analysis, Reporting and Amendment as Appropriate Directives

One method of congressional input that combines desirable features of the above alternatives is a

general directive to the Sentencing Commission to investigate sentencing practices for a given

offense area and amend the guidelines as appropriate to ensure that stated congressional objectives

are accomplished. Directives of this kind may be coupled, if Congress desires, with a requirement

for a report to Congress within a reasonable time.

Congress recently included a "study and amend" directive of this nature in the 1990 crime bill when

it directed the Sentencing Commission to "amend existing guidelines for sentences involving sexual

crimes against children .. . so that more substantial penalties may be imposed if the Sentencing

155See also the general directive concerning fraud offenses that create a conscious or reckless risk of serious

personal injury, supra, in which Congress also included in the directive itself a suggestion that the Commission

consider the appropriateness of at least a 2-level enhancement for such conduct.

156To illustrate, in implementing the general directive regarding bank fraud conduct "that substantially jeopardizes

the safety and soundness of a federally insured financial institution," the Sentencing Commission elected a broader

fofm of implementation to avoid a disparity in the guideline sentence among similar conduct that affected different

types of victims (e_£., union pension funds and non-federally insured banks, as well as federally insured banks may be

subject to the enhancement).

123
Commission determines current penalties are inadequate."157

 In response to this directive, the

Sentencing Commission included several relevant amendments in its 1991 amendments

package, and it has a comprehensive study underway that may result in the proposal of

additional amendments in 1992.

For a number of reasons, a "study and amend" directive is a highly effective means of congressional

influence over sentencing policy. Congress retains the authority, and will inevitably have the

opportunity, to review the adequacy of any Sentencing Commission analysis and amendment

response. The Sentencing Commission, by statute, must report any amendments to Congress by May

1 of each year, and Congress thereafter has an 180-day period to review the adequacy of what is

included (or omitted) from the Sentencing Commission's amendment report.159

Moreover, a directive combining analysis and appropriate amendments closely adheres to the manner

in which the Sentencing Reform Act indicated the Sentencing Commission should approach the

evolutionary task of improving its guidelines and policy statements. Congress gave the Sentencing

Commission distinct, ongoing tasks to compile and analyze data on sentences imposed, as well as

to conduct other sentencing research. It is therefore entirely appropriate for Congress to require the

Sentencing Commission to combine its research, analysis, and guideline amendment functions to

address aspects of criminal conduct of particular concern to Congress. In light of the multifaceted

responsibilities Congress gave the Sentencing Commission in the Sentencing Reform Act, the

Sentencing Commission particularly commends this approach for Congress's consideration.

D. Conclusion

There are a number of ways in which Congress effectively can shape sentencing policy without

resorting to mandatory minimum provisions. Working together with the Sentencing Commission,

Congress has already provided an opportunity to demonstrate the viability of these alternative

mechanisms. There is every reason to expect that their continued and expanded use would meet

with equal success.

157Pub. L. 101-647, Title III, § 321, Nov. 29, 1990, 104 Slat. 4817.

l58These amendments were submitted to Congress for the requisite 180-day review on May 1, 1991, and will take

effect November 1, 1991, barring legislation to the contrary.

15928 U.S.C. § 994(p).

124



Appendices to the Special Report:

Mandatory Minimum Penalties in the

Federal Criminal Justice System

Appendix A: Statutory Provisions Requiring Minimum Terms of Imprisonment

Appendix B: Pending Mandatory Minimum Legislation

Appendix C: Mandatory Minimum Bibliography

Appendix D: Technical Appendix to the Empirical Study

Appendix E: Mandatory Minimum Defendant Profiles for Similar Controlled Substance Offenses

Appendix F: Technical Discussion of the Probit Analysis

Appendix G: Resolutions of the Judicial Conference and the Twelve Circuit Courts of Appeals

Appendix H: Brief Review of the Case Law Relating to Mandatory Minimum Sentences

Appendix I: Individual Responses from the Twelve Site Interviews

Appendix J: General and Specific Directives to the United States Sentencing Commission

Appendix A

Statutory Provisions Requiring

Mandatory Minimum Terms of Imprisonment

U.S. CODE SECTION

(SENT. GUIDELINES

2 USC §192

(§§2J1.1, 2J1.5)

2 USC §390

(§§2J1.1, 2J1.5)

7 USC §13a

(§2J1.1)

7 USC §13b

(refer to guideline for

underlying offense)

7 USC §195

(§2N2.1)

7 USC §2024

(§2F1.1)

12 USC §617

(§2R1.1)

12 USC §630

(§§2B1.1, 2F1.1)

15 USC §8

(§2R1.1)

DESCRIPTION of CRIME

refusing to testify before Congress

failure to appear, testify, or produce documents

disobeying cease and desist order

disobeying cease and desist order

violation of court order

second illegal food stamp activity; value of $100 or more

commodities price fixing

embezzlement, fraud, or false entries by banking officer

trust in restraint of import trade

DATE**

1857

1969

MINIMUM TERM

1 month

1 month or fine"

1922

1922

1921

1981

1913

1913

1894

6 months or fine or both*

6 months or fine or both*

6 months or fine or both*

6 months

1 year or fine or both*

2 years

3 months
15 USC §1245

15 USC §1825(a)(2)(C)

(§2A1.1)

16 USC §414

[petty offense]

18 USC §115

(§2A1.1)

18 USC §225

(§§2B1.1, 2B4.1, 2F1.1)

possession, manufacture, sale, or import of ballistic knives 1986

first degree murder of horse official 1970

trespassing on federal land for hunting or shooting 1897

first degree murder of federal official's family member 1984

organizing, managing, or supervising a continuing financial crimes 1990

enterprise

5 years or fine or both*

life

5 days or fine or both*

life

10 years

18 USC §351

(§2A1.1)

18 USC §844(h)

(§2K1.7)

18 USC §844(h)

(§2K1.7)

18 USC §924(c)(l)

(§2K2.4)

18 USC §924(c)(l)

(§2K2.4)

18 USC §924(c)(l)

(§2K2.4)

18 USC §924(c)(l)

(§2K2.4)

18 USC §924(e)(l)

(§4B1.4)

first degree murder of congress, cabinet, or supreme court 1971

member

second offense, use of fire or explosives to commit a felony, 1970

penalty enhancement provision

first offense, use of fire or explosives to commit a felony, penalty 1970

enhancement provision

second offense, using or carrying a machine gun, silencer, or 1986

destructive device during a crime of violence or drug trafficking

crime

first offense, using or carrying a machine gun, silencer, or 1986

destructive device during a crime of violence or drug trafficking

crime

second and all subsequent offenses, using or carrying a firearm 1968

during a crime of violence or drug trafficking crime

first offense, using or carrying a firearm during a crime of 1968

violence or drug trafficking crime, penalty enhancement provision

possession of a firearm or ammunition by a fugitive or addict 1986

who has three convictions for violent felonies or drug offenses

life

10 year determinate enhancement

5 year determinate enhancement

life

30 year determinate enhancement

20 years determinate enhancement

5 year determinate enhancement

15 years
18 USC §929(a)(l)

(§2K2.4)

18 USC §1091

(§2H1.3)

18 USC §1111

(§2A1.1)

18 USC §1114

(§2A1.1)

18 USC §1116

(§2A1.1)

18 USC §1651

18 USC §1652

18 USC §1653

18 USC §1655

18 USC §1658

18 USC §1661

18 USC §1751

(§2A1.1)

18 USC §1917

18 USC §2113(e)

(§§2A1.1, 2B3.1)

18 USC §2251(d)

(§§2G2.1, 2G2.2)

carrying firearm and armor piercing ammunition during crime of

violence or drug trafficking crime, penalty enhancement provision

killing a group member

first degree murder

first degree murder of federal officers

first degree murder of foreign officials

piracy

piracy by US citizen

piracy by alien

piracy by seaman

prevention of escape from a vessel or causing vessel to run

aground by use of false light

robbery by pirates

first degree murder of president or staff

interference with civil service examinations

homicide or kidnapping during bank robbery or larceny

second offense of sexual exploitation of children

1984

1988

1790

1934

1972

enhancement of not less than 5 years

life

life

life

life

1790

1790

1790

1790

1790

1790

1965

1966

1934

1978

life

life

life

life

10 years

life

life

10 days or fine or both*

10 years

5 years
18 USC §2251A

(§2G2.3)

18 USC §2252

(§§2G2.2, 2G2.4)

18 USC §2252(a)(3)

(§2G2.2)

18 USC §2252(a)(4)

(§2G2.2)

18 USC §2257(f)

(§2G2.5)

18 USC §2381

(§2M1.1)

18 USC §3561

(§5B1.2)

19 USC §283

(§2T3.1)

21 USC §212

[petty offense]

21 USC §622

(§2C1.1)

sale or transfer of custody of minor, knowing minor will be 1988

sexually exploited

second offense, distribution or receipt of visual depictions of 1978

minors engaging in sexually explicit conduct

second offense, distributing or possessing with intent to distribute 1990

child pornography

second offense, possessing three or more pieces of child 1990

pornography

second offense, failure to maintain records, falsifying records, or 1990

distributing materials not mentioning the records of sexually

explicit performers

treason and sedition 1948

probation provision for felonies 1984

failure to report seaboard saloon purchases to customers 1886

practice of pharmacy and sale of poisons in China 1915

bribery of inspectors and acceptance of bribes 1907

20 years

5 years

5 years

5 years

2 years

5 years

minimum term of probation is 1 year

3 months

1 month or fine*

1 year

21 USC §841(b)(l)(A)

(§2D1.1)

21 USC §841(b)(l)(A)

(§2D1.1)

third offense, manufacturing, distributing, or possessing with 1986

intent to distribute

second offense, manufacturing, distributing, or possessing with 1986

intent to distribute, death or serious bodily injury results from the

life

life
21 USC §841(b)(l)(A)

(§2D1.1)

21 USC §841(b)(l)(A)

(§2D1.1)

21 USC §841(b)(l)(A)

(§2D1.1)

21 USC §841(b)(l)(B)

(§2D1.1)

21 USC §841(b)(l)(B)

(§2D1.1)

21 USC §841(b)(l)(B)

T (§2DL1)

21 USC §841(b)(l)(B)

(§2D1.1)

21 USC §841(b)(l)(C)

(§2D1.1)

21 USC §841(b)(l)(C)

(§2D1.1)

21 USC §844(a)

(§2D2.1)

21 USC §844(a)

(§2D2.1)

21 USC §844(a)

(§2D2.1)

second offense, manufacturing, distributing, or possessing with 1986 20 years

intent to distribute, no death or serious bodily injury

first offense, manufacturing, distributing, or possessing with intent 1986 20 years

to distribute, death or serious bodily injury results from the use

first offense, manufacturing, distributing, or possessing with intent 1986 10 years

to distribute, no death or serious bodily injury

second or any subsequent offense, manufacturing, distributing, or 1984 Me

possessing with intent to distribute, death or serious bodily injury

results

first offense, manufacturing, distributing, or possessing with intent 1984 20 years

to distribute, death or serious bodily injury results

second and all subsequent offenses, manufacture, distribution, or 1984 10 years

possession with intent to distribute, no death or serious bodily

injury results

first offense, manufacture, distribution, or possession with intent 1984 5 years

to distribute, no death or serious bodily injury results

second or any subsequent offense, manufacturing, distributing, or 1986 life

possessing with intent to distribute, death or serious bodily injury

results

first offense, manufacturing, distributing, or possessing with intent 1986 20 years

to distribute, death or serious bodily injury results

first offense, simple possession of a controlled substance, 1988 5 years

substance contains cocaine base and weighs more than 5 grams

second offense, simple possession, substance contains cocaine 1988 5 years

base and weighs more than 3 grams

third and all subsequent offenses, simple possession, substance 1988 5 years

contains cocaine base and weighs more than 1 gram
21 USC §844(a)

(§2D2.1)

21 USC §844(a)

(§2D2.1)

21 USC §848(a)

(§2D1.5)

21 USC §848(a)

(§2D1.5)

21 USC §848(b)

(§2D1.5)

21 USC §859(a)

(§2D1.2)

third and all subsequent offenses, simple possession, all 1986

substances other than those containing cocaine base and those

containing cocaine base but weighing 1 gram or less

second offense, simple possession, all substances other than those 1986

containing cocaine base and those containing cocaine base but

weighing three grams or less

second and all subsequent offenses, continuing criminal 1970

enterprise

first offense, continuing criminal enterprise 1970

first offense, qualifying kingpins 1986

first offense, distribution to persons under age 21 1986

90 days

IS days

30 years

20 years

life

1 year or the applicable minimum from

841(b), whichever is the greater

21 USC §859(b)

(§2D1.2)

21 USC §859(b)

(§2D1.2)

second offense, distribution to persons under age 21

third offense, distribution to persons under age 21

1986

1988

1 year or the applicable minimum from

841(b), whichever is the greater

life

21 USC §860(a)

(§2D1.2)

21 USC §860(b)

(§2D1.2)

21 USC §860(b)

(§2D1.2)

21 USC §861(b)

(§2D1.2)

first offense, distribution of a controlled substance near a school 1986

or similar facility

second offense, distribution of a controlled substance near a 1984

school or similar facility

third offense, distribution of a controlled substance near a school 1988

or similar facility

first offense, employing, etc., a person underage 18 to engage in a 1986

controlled substance offense

1 year or the applicable minimum from

841(b), whichever is the greater

3 years or the applicable mandatory

minimum from 841(b), whichever is greater

life

1 year or other applicable

whichever is the greater
21 USC §861(c)

(§2D1.2)

21 USC §861(c)

(§2D1.2)

21 USC §960(b)(l)

(§2D1.1)

21 USC §960(b)(l)

(§2D1.1)

21 USC §960(b)(l)

(§2D1.1)

21 USC §960(b)(l)

(§2D1.1)

21 USC §960(b)(2)

(§2D1.1)

21 USC §960(b)(2)

(§2D1.1)

21 USC §960(b)(2)

(§2D1.1)

21 USC §960(b)(2)

(§2D1.1)

21 USC §960(b)(3)

(§2D1.1)

21 USC §960(b)(3)

(§2D1.1)

22 USC §4221

(§2B5.2)

second offense, employing, etc., a person underage 18 to engage 1986

in a controlled substance offense

third offense, employing, etc., a person underage 18 to engage in 1988

a controlled substance offense

second or any subsequent offense, unlawful import or export, 1986

death or serious bodily injury results

second or any subsequent offense, unlawful import or export, no 1986

death or serious bodily injury results

first offense, unlawful import or export, death or serious bodily 1986

injury results

first offense, unlawful import or export, no death or serious 1986

bodily injury results

second or any subsequent offense, unlawful import or export, 1986

death or serious bodily injury results

first offense, unlawful import or export, death or serious bodily 1986

injury results

second and all subsequent offenses, no death or serious bodily 1986

injury results

first offense, unlawful import or export, no death or serious 1986

bodily injury results

second or any subsequent offense, unlawful import or export, 1986

death or serious bodily injury results

first offense, unlawful import or export, death or serious bodily 1986

injury results

forgery of US seal 1906

1 year or other applicable minimum,

whichever is the greater

life

life

20 years

20 years

10 years

life

20 years

10 years

5 years

life

20 years

1 year
33 USC §410

33 USC §411

(§2Q1.3)

33 USC §441

33 USC §447

45 USC §83

46 USCAppx §1228

(refer to guideline for

underlying offense)

47 USC §13

47 USC §220(e)

(§2F1.1)

49 USC §11911(a)

(§2F1.1)

49 USC §11911(b)

(§2F1.2)

49 USCAppx §1472(n)

(§2A5.1)

49 USCAppx §1472(n)

(§2A5.1)

navigable water regulation violation

deposit of refuse or obstruction of navigable waterway

New York and Baltimore harbors, deposit of refuse

bribery of inspector of Baltimore or New York harbors

refusing to use and operate railroads and telegraph lines

violation of merchant marine act

refusal to operate railroad or telegraph lines

altering or destroying books or accounts of common carrier

securities violation relating to transfer or issuance

securities violation under 11322 relating to restrictions on officers

and directors

commits a defined offense aboard an aircraft outside US

jurisdiction, no death results

commits a defined offense aboard an aircraft outside US

jurisdiction, death results

1900

1899

1888

1888

1864

30 days or fine or both*

30 days or fine or both*

30 days or fine or both*

6 months

"mav be imDrisoned not

1936

1888

1934

1887

1887

1974

1974

months"*

1 year or fine or both*

"may be imprisoned not less than 6

months"*

1 year or fine or both*

1 year*

1 year*

20 years

life

* These statutes require a minimum period of imprisonment only when the court imposes a term of imprisonment.

** Year during which mandatory minimum first enacted with respect to the substantive offense proscribed by the relevant statute.
Appendix B

Pending Mandatory Minimum Legislation

(As of the Submission of this Report)

A review of recent legislative proposals and Executive Branch statements1 indicates that Congress

and the Executive Branch continue to view mandatory minimum sentencing provisions favorably.2

Indeed, the Violent Crime Control Act of 1991, which passed the Senate on July 11, 1991,

constitutes the most sweeping proposed increase to mandatory minimums that Congress has ever

contemplated. Not counting new federal capital offenses (for which death or life imprisonment is

mandated), the 1991 crime bill contains approximately two dozen new mandatory minimum penalty

provisions and increases the minimum penalty required by others.

In brief, the following general observations regarding the 1991 crime bill's treatment of mandatory

minimums can be made:

• A focus on drugs and guns: Although a number of the crime bill's mandatory minimum

provisions relate generally to what are broadly defined as "crimes of violence,11 most are

targeted at specific offenses involving weapons and the distribution of controlled

substances.3

• The impact of these provisions on federal sentencing will likely vary from little to substantial'.

Some mandatory minimum provisions in the crime bill appear likely to see little usage. For

example, section 2509 of the bill, requiring a life sentence if a defendant receives a second

1

See, e.g., Message to the Congress Transmitting the Proposed Comprehensive Violent Crime Control Act of 1991,

27 Weekly Comp. Pres. Doc., 289-290 (March 11, 1991).

2

It should be noted that the nature and depth of this support is to some degree unclear. During consideration of

recent crime bills, statements of some supporters of increased mandatory minimum penalties, as well as some of the

legislative proposals themselves, indicate apparent confusion as to how sentencing operates today. For example, it

appears that it may not be well understood that sentences imposed under the new system of federal sentencing

guidelines are not subject to parole. See, ej*., 135 Cong. Rec. S.9042 (June 28, 1990) (floor statement to the effect

that a sentence required by the guidelines is subject to a reduction for parole). See also S.1241, 102d Cong.,

1st Sess. sections 1641, 2509 (providing that a sentence imposed pursuant to these sections shall not be "suspended";

federal law no longer allows suspended sentences), and sections 1213, 1641 (providing that a defendant sentenced

under these provisions shall not be eligible for parole). Since, as is discussed in detail in Chapters 3, 4, and 7 of this

Report, the sentencing guidelines system provides an alternative mechanism through which Congress may satisfy many

of the policy objectives of mandatory minimums, it may be that as an understanding of that system increases, support

for mandatory minimums will diminish.

3One provision would mandate an "environmental audit" for all violations involving broad categories of

environmental offenses committed by organizations. See S. 1241 sec. 4501.

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conviction for drug distribution to a minor, should, based on past practice, be rarely used.

In contrast, other provisions such as section 1213 which federalizes nearly all crimes

committed in the United States during which a gun is possessed, could have a potentially

enormous impact. As discussed in Chapters 4 and 5 of this Report, the actual impact of

mandatory minimum provisions depends in part on how frequently prosecutors choose to

charge them.

The scope of conduct covered by a number of the proposed provisions is exceptionally broad:

Several of the crime bill's mandatory minimum provisions would sweep broadly in terms of

the offenses they would cover. Section 2508, for example, requires a mandatory life

sentence for an offender who has already been convicted of two or more "crimes of violence."

The term "crime of violence" is defined sufficiently broadly to cover conduct ranging from

such serious crimes as murder or rape, to conduct that is significantly less serious, such as

stealing a car radio on federal property or, apparently, opening another person's mail.

Similarly, section 1213 would provide a ten-year minimum add-on for possessing a gun

during a state law "drug trafficking crime." This term is defined to cover the most serious

drug distribution offenses but would also cover simple possession of any quantity of any drug

if the state where the offense occurred authorizes a possible sentence of more than a year

for drug possession.

Expansive use of mandatory minimums that are triggered by specific offense characteristics:

In addition to establishing mandatory penalties for various new offenses, the bill provides

enhancements for a number of specific offense characteristics. For example, drug offenses

would be sanctioned more heavily when committed near a public housing facility (section

4902), in the vicinity of a truck stop (section 1641), or when the drugs were either

purchased from or sold to a person under 18 years old (section 2509). Further, many

personal and property crimes would receive enhanced penalties if the victim was 65 years

or older (section 4001).

Some penalty increases provided for are substantial: Several provisions calling for increases

in minimum penalties provide for very substantial increases. For example, both first and

second-offense violations of 21 U.S.C. §§ 859 and 861 currently require a minimum one-year

term. However, an offender convicted of a second violation of these provisions under the

bill (section 2509) would face mandatory life imprisonment.

"Related provisions contained in 21 U.S.C. § 859 are infrequently used. This trend appears especially likely to

continue given the lengthy mandatory minimum sentences that today must be served for a qualifying first offense under

the bill.

5

See also section 4001, providing minimum penalties when the victim of a "crime of violence" is age 65 or older.

B-2
Beyond the comprehensive crime bill that passed the Senate and counterparts pending in the House

of Representatives, approximately 30 bills containing provisions that either establish new or

expand existing mandatory minimums are now pending before Congress. Set out below is a brief

description of the relevant penalty provisions of these additional, miscellaneous bills.7

HOUSE OF REPRESENTATIVES

H.R. 3052 — Coal Field Water Protection and Replacement Act

Sec. 8 Penalty for Failure of Representative of Secretary or

State Regulatory Authority to Carry out Certain Duties

Section 1268(j) is added to title 30 to provide imprisonment for less than five years but more than

one year for failure to report a violation that can reasonably be expected to cause substantial injury

or death, and one year or less but more than six months imprisonment for failure to report a

violation that can reasonably be expected to cause significant environmental harm to land, air, or

water resources.

H.R. 3043 -- Gun Violence Act of 1991

Sec. 2 Theft of Firearms or Explosives from Licensee

Section 924(i) is added to title 18 to provide a fine in accordance with this title, imprisonment not

less than five and not more than ten years, or both, for whoever steals any firearm from a licensed

collector.

Section 844(k) is added to title 18 to provide for imprisonment of not less than five and not more

than ten years for whoever steals any explosive material from a licensed manufacturer.

Sec. 3 Increased Penalties for Possession of a Firearm

in a Crime of Violence or Drug Trafficking Crime

18 U.S.C. § 924(c)(l) is amended to provide for imprisonment of not less than five and not more

than ten years for possession of a firearm during and in relation to any crime of violence or drug

trafficking crime (second or subsequent conviction, 20 years imprisonment), imprisonment not less

than ten and not more than 15 years if the firearm possessed is an assault weapon, a short-barreled

rifle, or a short-barreled shotgun (second or subsequent conviction, life imprisonment), and

6

See H.R. 1400 and House Crime and Criminal Justice Subcommittee "Committee Print." These bills contain

fewer mandatory-minimum-related provisions than the Senate version.

7

Several of these bills contain provisions that are comparable to provisions contained in the comprehensive Senate

crime bill, S.1241.

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imprisonment for 30 years for possession of a machine gun, a destructive device, or a firearm

equipped with a firearm silencer or firearm muffler.

Sec. 4 Mandatory Prison Terms for Possession of a Firearm or Destructive Device

During a State Crime of Violence or State Drug Trafficking Crime

Sections 924(c)(4)(A) and (B) are added to title 18 to provide for imprisonment of not less than ten

years for possession of a firearm during and in relation to a State crime of violence or drug

trafficking crime (second conviction, not less than 20 years), imprisonment not less than 20 years

for discharge of a firearm with intent to injure (second conviction, not less than 30 years), and

imprisonment for 30 years for possession of a machine gun, a destructive device, or a firearm

equipped with a firearm silencer or firearm muffler (second conviction, life imprisonment). All

convictions after the second one shall be life imprisonment.8

H.R. 2904 -- Three-Time Loser Drug Act of 1991

Sec. 2 Life Imprisonment without Release for Criminals

Convicted a Third Time

21 U.S.C. § 841 (b) is amended by providing not less than a mandatory term of life imprisonment

if any person commits a crime of violence after two or more prior convictions for a felony drug

offense or crime of violence or any combination thereof have become final.

H.R. 2903 -- Juveniles in Drug Crime Prevention Act of 1991

Sec. 2 Longer Prison Sentences for Those Who Sell Illegal Drugs

to Minors in Drug Trafficking Activities

21 U.S.C. § 859 (Distribution to persons under age twenty-one) is amended to increase the minimum

penalty from not less than one year to not less than ten years (second offense, increase from not less

than one year to mandatory term of imprisonment for life).

21 U.S.C. § 861 (Employment of persons under eighteen years of age) is amended to increase the

minimum penalty from not less than one year to not less than ten years (second offense, increase

from not less than one year to mandatory term of imprisonment for life).9

bill also requires that the sentence not be "suspended."

9The bill also requires that the sentence not be "suspended."

B-4
H.R. 2892 — Terrorist Alien Removal Act

Sec. 4 Additional Amendments

Section 1326(c) is added to title 8 to provide imprisonment for ten years to run consecutive to any

other sentence imposed for any alien who has been excluded or removed from the United States

pursuant to specific provisions and then enters the United States without permission from the

Attorney General.

H.R. 2858 — Crimes and Criminal Procedure, Tille 18 U.S.C., Amendment

Section 924(i)(l)(A) is added to title 18 to federalize possession or use of a firearm or a destructive

device during conduct constituting a crime of violence or a drug trafficking crime under State law

(where federal jurisdictional requirements are met). Enhanced mandatory terms of imprisonment

include not less than 10 years for possession (second conviction, not less than 20 years), not less

than 20 years for discharging the firearm with intent to injure (second conviction, not less than 30

years), imprisonment for 30 years for possession of a firearm that is a machine gun or destructive

device or is equipped with a firearm silencer or muffler (second conviction, life imprisonment).

Third and subsequent convictions shall result in life imprisonment.10

H.R. 281 4 -- Combatting of Crime, Provision

Sec. 1 Increased Penalties for Drug-Dealing in "Drug-Free" Zones

21 U.S.C. § 860 (Distribution or manufacturing in or near schools and colleges) is amended to

increase the term of imprisonment from not less than one year to not less than three years for a

violation (second offense, increased from not less than three years to not less than five years).

Sec. 3 Mandatory Minimum Sentence for Person Convicted of a Drive-By-Shooting

This section mandates a term of imprisonment not less than 15 years to run consecutive to any other

term of imprisonment imposed on the person for conviction of a drive-by-shooting.

Sec. 5 Drug-Free Public Housing

21 U.S.C. § 860 (Distribution or manufacturing in or near schools and colleges) is amended to

prohibit the proscribed conduct near public housing.

10The bill also requires that the sentence not be "suspended."

B-5
H.R. 2442 - Federal Firearms Dealers and Owner Protection Act of 1991

Sec. 201 Bank Robbery Related Firearm Violence

18 U.S.C. § 2113(d) is amended to add that if the dangerous weapon or device used is a firearm,

the term of imprisonment shall not be less than five years.

H.R. 2352 -- Motor Carrier Safety Assistance Program Reauthorization Act of 1991

Sec. 9 Drug Free Truck Stops

A new section is added after 21 U.S.C. § 848 to provide a term of imprisonment, or fine, or both,

up to twice that authorized by 21 U.S.C. § 841 (b) (Penalties) and at least twice any term of

supervised release authorized by 21 U.S.C. § 841(b) for a first offense, for violation of 21 U.S.C. §§

841(a)(l) (Unlawful acts) and 856 (Establishment of manufacturing operations) by distributing or

possessing with intent to distribute a controlled substance in or on, or within one thousand feet of,

a truck stop or safety rest area. A term of imprisonment shall be not less than 1 year (does not

apply to offenses involving 5 grams or less of marijuana). For a subsequent violation, punishment

is the greater of "(A) a term of imprisonment of not less than three years and not more than life

imprisonment or (B) a term of imprisonment of up to three times that authorized by section [841 (b)]

of this title for a first offense, or a fine up to three times that authorized by section [841 (b)] of this

title for a first offense, or both; and" at least three times any term of supervised release authorized

by section [841(b)] of this title for a first offense.

H.R. 2090 -- Money Laundering Act of 1991

Section 1956A is added to title 18 to provide a fine under this title and mandatory life

imprisonment for an officer or employee of a depository institution that conducts or attempts to

conduct transaction(s) to launder drug money.

H.R. 1719 — Crimes and Criminal Procedure, Title 18 U.S.C, Amendment

Sec. 1 Mandatory Minimum Sentence for Unlawful Possession of a Firearm bv

Convicted Felon. Fugitive from Justice, Addict or Unlawful User of

Controlled Substance, or Transferor or Receiver of Stolen Firearm

This section provides that whoever violates 18 U.S.C. §§ 922(g)(l), (2), (3), (i) or (j) shall be

imprisoned not less than 5 years and shall not be eligible for parole during the first five years of

any term of imprisonment imposed under this section.

"The bill also requires that the sentence not be "suspended" and that convicted offenders not be eligible for parole

during the minimum term.

B-6
Sec. 3 Increase in Enhanced Penalties for Possession of Firearm in Connection

with Crime of Violence or Drug Trafficking Crime

18 U.S.C. § 924(c)(l) is amended to provide imprisonment of 10 years for a first violation of this

section to be served consecutive to any punishment for the underlying crime of violence or drug

trafficking crime, and 30 years imprisonment for a second or subsequent offense.

H.R. 1551 -- Drug Free Truck Stop Act of 1991 (related bill S. 631)

Sec. 3 Increased Penalties for Distribution of Controlled Substances

at Truck Stop and Rest Areas

A new section is added after 21 U.S.C. § 848 to provide a term of imprisonment, or fine, or both,

up to twice that authorized by 21 U.S.C. § 841 (b) (Penalties) and at least twice any term of

supervised release authorized by 21 U.S.C. § 841 (b) for a first offense, for violation of 21 U.S.C. §§

841 (a) (1) (Unlawful acts) and 856 (Establishment of manufacturing operations) by distributing or

possessing with intent to distribute a controlled substance in or on, or within one thousand feet of,

a truck stop or safety rest area. A term of imprisonment shall be not less than 1 year. For a

subsequent violation, punishment is the greater of "(A) a term of imprisonment of not less than three

years and not more than life imprisonment or (B) a term of imprisonment of up to three times that

authorized by section [841 (b)] of this title for a first offense, or a fine up to three times that

authorized by section [841 (b)] of this title for a first offense, or both; and" at least three times any

term of supervised release authorized by section [841 (b)] of this title for a first offense.

H.R. 1502 -- Violence Against Women Act of 1991; Safe Streets for Women Act of 1991;

Safe Homes for Women Act of 1991; Safe Campuses for Women Act of

1991; Equal Justice for Women in the Courts Act (related bill S. 15)

Sec. 201, 211 Safe Homes for Women Act of 1990

Section 2261 is added to title 18 to provide for a fine of not more than $1,000, or imprisonment for

not more than 5 years but not less than 3 months, or both, in addition to any fine or term of

imprisonment provided under State law for any person who travels or causes another to travel across

state lines or in interstate commerce with the intent to injure a spouse or intimate partner and who,

during the course of such travel, injures his spouse or intimate partner in violation of a criminal law

of the state where the violation occurs.

Section 2262 is added to title 18 to provide that any person against whom a valid protection order

has been entered travels or causes another to travel across State lines or in interstate commerce with

the intent to injure a spouse or intimate partner when the offender has previously violated any prior

12The bill also requires that the sentence not be "suspended" and that convicted offenders not be eligible for parole

during the minimum term.

B-7
protection order issued for the protection of the same victim, shall be fined under this title or

imprisoned for not more than 5 years and not less than 6 months, or both.

H.R. 1133 -- Crimes and Criminal Procedure, Tille 18, U.S.C., Amendment

Sec. 2 Enhanced Penalties for Possession of a Firearm During a Drug Crime

Section 924(i) is added to title 18 to provide in addition to the punishment provided for an

underlying drug crime, imprisonment not less than 15 days and not more than 2 years and a fine

not less than $2,500 and not more than $10,000 for whoever, during and in relation to such drug

crime (including a drug crime which provides for an enhanced punishment if committed by the use

of a deadly or dangerous weapon or device), possesses a firearm. If the firearm is a machine gun,

or is equipped with a firearm silencer or muffler, imprisonment shall be for 15 years (30 years for

subsequent conviction).

H.R. 912 -- Federal Deposit Insurance Reform Act

Sec. 5 Criminal Penalty for Fraudulent Attempts to Obtain Deposit Insurance

in Excess of the Limitation

Violation of this section requires a fine: (1) not less than the amount by which certain deposit

insurance coverage exceeds the limitation contained in section 2(a) of the bill, and (2) not more

than $100,000.

H.R. 629 -- Mandatory Sentences for Persons Committing Violent Felonies

on Persons Aged 65 or Older, Provision

Section 3581 is added to title 18 to provide that a defendant convicted of a "crime of violence"

against an individual 65 years of age or older shall be sentenced: "(1) for a term of not less than

one-half of the maximum term of imprisonment provided for such crime under this title, in the case

of a first offense to which this section is applicable; and (2) for a term not less than three-fourths

of the maximum term of imprisonment provided for such crime under this title, in the case of a

second or subsequent offense to which this section is applicable.13

H.R. 436 -- Violent Crime Prevention Act

Sec. 6 Penalty For Possession of .25 or .32 Caliber Ammunition During

Crime of Violence or Drug Trafficking Crime

This bill adds possession of .25 or .32 caliber ammunition to a statutory provision (18 U.S.C. §

929(a)(l) and (b)) that requires a 5-year mandatory minimum sentence for the use of restricted

"The bill also requires that courts not "suspend" the sentence and provides that convicted offenders shall not be

eligible for parole during the minimum term.

B-8
ammunition during a crime of violence or drug trafficking crime. The punishment provided for is

consecutive to any penalty imposed for the underlying crime of violence or drug trafficking crime.

H.R. 282 -- Handgun Registration Act of 1991

Sec. 3 Federal Handgun Registration System

The bill establishes a Federal handgun registration system. This section provides that an individual

who owns, possesses, or controls a handgun and fails to register the handgun in compliance with the

registration system shall be fined not more than $250,000, imprisoned not less than 15 years, or

both.14

H.R. 218 -- Sweatshops Prevention Act of 1989

Sec. 5 Criminal Penalties

29 U.S.C. § 216(a) (criminal penalties) is amended to provide for "a fine in accordance with title

18, United States Code, or imprisonment for at least six months and not more than one year."

SENATE

S. 1575 -- Drug Supply Reduction Act of 1991

Sec. 515 Conforming Amendment to Provision Punishing a Second Offense

of Distributing Drugs to a Minor

21 U.S.C. § 859(b) (Distribution to persons under age twenty-one) is amended to increase the

minimum penalty from not less than one year to not less than three years for the second offense.

S. 1454 — Penalties Against Gang Violence Act of 1991

Sec. 102 Penalties for Criminal Gang Activity

Section 22 (Criminal Gang Activity) is added to title 18 to provide imprisonment not less than one

and not more than three years for a person who willfully promotes, furthers, or assists in any

felonious criminal conduct by the members of a criminal gang, with knowledge that its members

engage, or have engaged in a pattern of criminal gang activity.

A term of imprisonment not less than three and not more than seven years (if serious bodily injury

results, not less than seven and not more than 12 years) shall be imposed consecutively and in

14The bill also provides that courts may not "suspend" the required sentence.

B-9
addition to any term of imprisonment imposed for the offense if the offense is committed knowingly

for the benefit of, at the direction of, or in association with a criminal gang.

S. 1337 -- Anti-Gang Violence Act of 1991

Sec. 105 Criminal Penalties for Gang Violence

18 U.S.C. § 924(c)(l) (including mandatory penalty scheme) is amended to include possession of

a gun.

S. 133 5 — Strategy to Eliminate Crime in the Urban and Rural Environment Act of 199 1

Sec. 201 Violent Felonies Against the Elderly

Section 3581 (Mandatory sentence for felony against individual of age sixty-five or over) is added

to title 18 to provide: "(a) Upon any plea of guilty or nolo contendere or verdict or finding of guilty

of a defendant of a crime of violence under this title, if any victim of such crime is an individual

who had attained age sixty-five on or before the date that the offense was committed, the court shall

sentence the defendant to imprisonment — (1) for a term of not less than one-half of the maximum

term of imprisonment provided for such crime under this title, in the case of a first offense to which

this section is applicable; and (2) for a term of not less than three-fourths of the maximum term of

imprisonment provided for such crime under this title, in the case of a second or subsequent offense

to which this section is applicable, (b) Notwithstanding any other provision of law, with respect to

a sentence imposed under subsection (a) of this section — (1) the court shall not suspend such

sentence; (2) the court shall not give the defendant a probationary sentence; (3) no defendant shall

be eligible for release on parole before the end of such sentence; (4) such sentence shall be served

consecutively to any other sentence imposed under this title; and the court shall reject any plea

agreement which would result in the imposition of a term of imprisonment less than that which

would have been imposed under subsection (a) of this section in connection with any charged

offense."

Sec. 303 Drug Distribution to Pregnant Women

21 U.S.C. § 859 (Distribution to persons under age twenty-one) is amended to include within its

coverage distribution to a pregnant woman. The applicable penalty provision provides for twice the

maximum punishment authorized by 21 U.S.C. § 841(b) and at least twice any term of supervised

release authorized by 21 U.S.C. § 841 (b) for a first offense involving the same controlled substance

and schedule. Except to the extent that a greater minimum sentence is otherwise provided, a term

of imprisonment shall not be less than one year (does not apply to offense involving five grams or

less of marijuana).

B-10
Sec. 801 Increased Mandatory Minimum Sentences without Release for Criminals

Using Firearms and Other Violent Criminals

This section adds possession of a firearm to 18 U.S.C. § 924(c) and increases the minimum required

imprisonment term to not less than 10 years for an offender who uses, carries, or otherwise possesses

a firearm during a crime of violence or drug trafficking crime (second conviction, not less than 20

years), not less than 20 years for an offender who discharges a firearm with intent to injure during

a crime of violence or drug trafficking crime (second conviction, not less than 30 years), and

imprisonment for 30 years if the firearm is a machine gun or is equipped with a firearm silencer

or muffler (second conviction, life imprisonment). Any conviction after the second shall be life

imprisonment.

Sec. 802 Longer Prison Sentences for Those Who Sell Illegal Drugs to Minors

or for Use of Minors in Drug Trafficking Activities

21 U.S.C. § 845 [now § 859] (Distribution to persons under age twenty-one) is amended to raise

the minimum sentence of imprisonment to ten years without release (not less than twenty years

without release for a second offense).

21 U.S.C. § 861 (Employment of persons under 18 years of age) is amended to raise the minimum

sentence of imprisonment to ten years without release (not less than twenty years without release

for a second offense).

Sec. 803 Longer Prison Sentences for Drug Trafficking

Penalty provision 21 U.S.C. § 841(b)(l)(C) is amended by requiring a mandatory minimum of not

less than five years without release nor more than 20 years in the case of a controlled substance in

schedule I or II, and a mandatory minimum of not less than ten years without release nor more than

30 years for a second violation.

Penalty provision 21 U.S.C. § 841(b)(l)(D) is amended by requiring a mandatory minimum of not

less than five years without release for schedule III controlled substances or less than 50 kilograms

of marijuana, and a mandatory minimum of not less than ten years without release for a second

violation.

Penalty provision 21 U.S.C. § 841(b)(2) is amended by requiring a mandatory minimum of not less

than five years without release for a scheduled IV controlled substance, and not less than ten years

without release for a second violation.

Penalty provision 21 U.S.C. § 841(b)(3) is amended by requiring a mandatory minimum sentence

of not less than five years without release for a scheduled V controlled substance, and not less than

ten years for a second violation.

B-ll
Sec. 804 Mandatory Penalties for Illegal Drug Use in Federal Prisons

21 U.S.C. § 841 (b) (7) (A) is created to provide in addition to any other sentence imposed for the

possession itself, a term of imprisonment not less than one year without release for possession of a

controlled substance within a Federal prison or Federal detention facility.

Sec. 805 Deportation of Criminal Aliens

8 U.S.C. § 1326(b)(2) is amended to provide a fine under this title and imprisonment not less than

20 years without release for reentry by an alien who was deported subsequent to a conviction for

a drug trafficking crime, a crime of violence, or an aggravated felony (life imprisonment without

release for a second violation).

Sec. 806 Encouragement to States to Adopt Mandatory Minimum Prison Sentences

Two years after enactment of this Act, a request for Federal drug law enforcement assistance funds

from the Bureau of Justice Assistance Grant Programs by a State whose law provides for mandatory

minimum sentences equal to or greater than the sentences authorized in sections 801, 802, 803,

804, and 805 of the bill for the commission of crimes against the State that are equivalent to the

Federal crimes punished in those sections, shall receive priority over a request by a State whose law

does not so provide.

Sec. 908 Imprisonment of Drug Traffickers and Violent Criminals

From the date of enactment of this Act until five years later, and notwithstanding any other law,

every person who is convicted in a Federal court of committing a crime of violence or a drug

trafficking crime, shall be sentenced to and shall serve a full term of no less than five years

imprisonment, and no such person shall be released from custody for any reason or for any period

of time prior to completion of the sentence imposed by the court unless the sentence imposed is

greater than five years and is not a mandatory minimum sentence without release.

S. 1313 — Ice Enforcement Act of 1991

Sec. 302 Strengthening Federal Penalties

Subsection 841(b)(l)(A)(ix) is added to title 21 to include within the controlled substances covered

by § 841(b)(l)(A) "25 grams or more of methamphetamine, its salts, isomers, and salts of its

isomers, that is 80 percent pure and crystalline in form." The applicable penalty provision provides

a term of imprisonment not less than ten years or more than life, and not less than 20 years or more

than life if death or serious bodily injury results from use of such substance, or if the violation is

committed after a prior conviction for such offense. If the violation is after a first conviction for

such offense and death or serious bodily injury results from use of such substance, then a sentence

of life imprisonment shall be imposed.

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Subsection 841(b)(l)(B)(ix) is added to title 21 to include within the controlled substances covered

by § 841(b)(l)(B) "5 grams or more of methamphetamine, its salts, isomers, and salts of its isomers,

that is 80 percent pure and crystalline in form." The applicable penalty provision provides a term

of imprisonment not less than 5 years and not more than 40 years, and not less than 20 years or

more than life if death or serious bodily injury results from the use of such substance.

S. 1303 -- Outlaw Gang Control Act of 1991

Sec. 105 Theft of Firearm or Explosive Material

18 U.S.C. § 924(i) is added to provide imprisonment not less than five years or more than ten years,

or both, for stealing a firearm that is moving as, or is a part of, or that has moved in, interstate or

foreign commerce.

18 U.S.C. § 844(k) is added to provide imprisonment not less than five years or more than ten

years, or both, for stealing a firearm that is moving as, or is a part of, or that has moved in,

interstate or foreign commerce.

Sec. 106 Possession of Firearm During Commission of a Crime of Violence

or Drug Trafficking Crime

18 U.S.C. § 924(c) (including mandatory penalty scheme) is amended to apply to possession of a

firearm.

S. 861 -- Murder of United States National Act of 1991

Sec. 2 Foreign Murder of United States Nationals

18 U.S.C. § 1118 is added to provide punishment pursuant to 18 U.S.C. §§ 1111 (life imprisonment

or death for first degree murder, any term of years or life for second degree murder), 1112 (not more

than 10 years for voluntary manslaughter, fine not more than $1,000 or imprisoned not more than

3 years, or both, for involuntary manslaughter), and 1113 (not more than 20 years or fine under this

title, or both for attempted murder, not more than 3 years or fine under this title, or both, for

attempted manslaughter) for killing or attempting to kill a national of the United States while such

national is outside of the United States.

S. 631 -- Motor Carrier Safety Assistance Program Reauthorization Act of 1991

Sec. 9 Drug Free Truck Stops

A new section is added after 21 U.S.C. § 848 to provide a term of imprisonment, or fine, or both,

up to twice that authorized by 21 U.S.C. § 841 (b) (Penalties) and at least twice any term of

supervised release authorized by 21 U.S.C. § 841(b) for a first offense, for violation of 21 U.S.C. §§

841 (a) (1) (Unlawful acts) and 856 (Establishment of manufacturing operations) by distributing or

B-13
possessing with intent to distribute a controlled substance in or on, or within one thousand feet of,

a truck stop or safety rest area. A term of imprisonment shall be not less than 1 year (does not

apply to offenses involving 5 grams or less of marijuana). For a subsequent conviction, punishment

is the greater of "(A) a term of imprisonment of not less than three years and not more than life

imprisonment or (B) a term of imprisonment of up to three times that authorized by section [841 (b)]

of this title for a first offense, or a fine up to three times that authorized by section [841 (b)] of this

title for a first offense, or both; and" at least three times any term of supervised release authorized

by section [841(b)] of this title for a first offense.15

S. 339 -- Outlaw Street and Motorcycle Gang Control Act of 1991 (related bill H.R. 100)

Sec. 105 Theft of Firearm or Explosive Material

(a) Firearms

18 U.S.C. § 924 (penalties) is amended by adding subsection (i) which provides that "whoever steals

a firearm that is moving as, or is a part of, or that has moved in, interstate or foreign commerce

shall be fined under this title and imprisoned for not less than 5 years or more than 10 years, or

both."

(b) Explosives

18 U.S.C. § 924 (penalties) is amended by adding subsection (k) which provides that whoever steals

explosive material that is moving as, or is a part of, or that has moved in, interstate or foreign

commerce shall be fined under this title and imprisoned for not less than 5 years or more than 10

years, or both."

S. 15 ~ Violence Against Women Act of 1991

Sec. 201. 211 Safe Homes for Women Act of 1990

Section 2261 is added to title 18 to provide for a fine not more than $1,000 or imprisonment for not

more than 5 years but not less than 3 months, or both, in addition to any fine or term of

imprisonment provided under State law for any person who travels or causes another to travel across

state lines or in interstate commerce with the intent to injure a spouse or intimate partner and who,

during the course of such travel injures his spouse or intimate partner in violation of a criminal law

of the state where the violation occurs.

Section 2262 is added to title 18 to provide that any person against whom a valid protection order

has been entered travels or causes another to travel across State lines or in interstate commerce with

the intent to injure a spouse or intimate partner and the offender has previously violated any prior

15The bill also requires that the sentence not be "suspended" and that convicted offenders not be eligible for parok

during the minimum term.

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protection order issued for the protection of the same victim, shall be fined under this title or

imprisoned for not more than 5 years and not less than 6 months, or both.

B-15

Appendix C

Mandatory Minimum Bibliography

A. Law Review and Social Science Articles

Beha, "And Nobody Can Get You Out" - The Impact of a Mandatory Prison Sentence for the Illegal

Carrying of a Firearm on the Use of Firearms and on the Administration of Criminal Justice

in Boston, 57 Boston University Law Review No.96 (1976).

BNA Criminal Practice Manual, Mandatory Sentences Evoke Continuing Judicial Discontent (Feb. 20,

1991).

Carroll, Cornell, Racial Composition, Sentencing Reforms, and Rates of Incarceration, 1970 - 1980,

2 Justice Quarterly No.4 (Dec. 1985).

Carter, Mandatory Sentencing Gone Awry, New Jersey Law Journal, (May 1988).

Casper and Brereton, Evaluating Criminal Justice Reforms, 4 Law & Society Review No. 1 (1984).

Cavanagh, Sentencing Reform: Policy Considerations, Library of Congress Congressional Research

Service (1983).

Cohen, Evaluation of the Mandatory Minimum Sentence for Habitual Drunken Drivers A Report of

the Minnesota Legislature, Statistical Analysis Center, State Planning Agency (Dec. 1989).

Corrections Digest, Corrections Professionals Oppose Strict Mandatory Sentencing Rule as Proposed

by President Ford (July 19, 1975).

Corrections Digest, President Calls For Mandatory Sentencing (Apr. 30, 1975).

Corrections Digest, President Ford Sends Congress New Federal Anti-Crime Package: Recommends

Mandatory Prison Terms and Criticizes Judges as too Lenient (June 25, 1975).

Deutsch, The Effect of Massachusetts' Gun Control Law on Gun-Related Crimes in the City of Boston,

Evaluation Quarterly (Nov. 1977).

Eaglin and Partridge, An Evaluation of the Probable Impact of Selected Proposals for Imposing

Mandatory Minimum Sentences in the Federal Courts, Federal Judicial Center (July 1977).

Glick, Mandatory Sentencing: The Politics of the New Criminal Justice, 43 Federal Probation No.

1 (1979).

C-l
Hall, Comment Mandatory Minimum Sentencing - The Concept, and a Controversial New Michigan

Statute, Detroit College of Law Review III (1976).

Heumann and Cassak, Not-so-Blissful Ignorance: Informing Jurors About Punishment in Mandatory

Sentencing Cases, 20 American Criminal Law Review (1983).

Heumann and Loftin, Mandatory Sentencing and the Abolition of Plea Bargaining: The Michigan

Felony Firearm Statute, 13 Law & Society No. 2 (1979).

Heumann, Loftin and McDowall, Federal Firearms Policy and Mandatory Sentencing, The Journal

of Criminal Law & Criminology (1982).

Howe, Thoughts on Mandatory Sentencing, Arizona Bar Journal (June/July 1985).

Jacobs, Constitutional Consequences of Ohio's New Sentencing Laws, 15 University of Toledo Law

Review No. 1 (Fall 1983).

Kennedy, Mandatory Sentencing - An Answer to Recidivism, Security Management (Nov. 1976).

Loftin, Heumann and McDowell, Mandatory Sentencing and Firearms Violence: Evaluating an

Alternative to Gun Control, 17 Law & Society Review No. 2 (1983).

Morelli, Edelman and Willoughby, A Survey of Mandatory Sentencing in the U.S. A Summary and

Brief Analysis of Mandatory Sentencing Practices in the United States, Criminal Justice

Statistics Division Pennsylvania Commission of Crime and Delinquency (1981).

National Institute of Justice, Office of Development, Testing and Dissemination, Policy Briefs

Mandatory Sentencing: The Experience of Two States (1990).

Pennsylvania Commission on Crime and Delinquency, Bureau of Statistics and Policy Research, The

Effects of Five-Year Mandatory Sentencing in Pennsylvania. Preliminary Assessment of the

Deterrent Effects of Mandatory Sentencing: Robbery, Aggravated Assault, and Driving Under

the Influence (1984).

Petersilia and Greenwood, Criminology Mandatory Prison Sentences: Their Projected Effects on

Crime and Prison Populations, 69 The Journal of Criminal Law and Criminology No. 4

(1978).

Preate, Mandatory Sentencing - A Different Perspective, 58 Pennsylvania Bar Association Quarterly

No. 1 (January 1987).

Rossman, Froyd, Peirce, McDevitt and Bowers, The Impact of the Mandatory Gun Law in

Massachusetts, Center for Criminal Justice, Boston University School of Law (Circa 1977).

C-2
Schaffner, Mandatory Sentencing - An assessment, 58 Pennsylvania Bar Association Quarterly No.

1 (January 1987).

State of Delaware, Statistical Analysis Center, Impact of Changes in the Delaware Drug Trafficking

Law (1990).

Statistical Analysis Center Bulletin, An Overview of Mandatory Sentencing, (June 1983).

Tonry, Sentencing Reform Impacts, National Institute of Justice, Office of Communication and

Research Utilization (1987).

Visher, Incapacitation and Crime Control: Does a "Lock 'Em Up' Strategy Reduce Crime?", 4 Justice

Quarterly No. 4 (Dec. 1987).

Yeager, Do Mandatory Prison Sentences for Handgun Offenders Curb Violent Crime? United States

Conference of Mayors (1976).

B. Newspaper Articles

Bandow, Long Drug Terms: Ineffective, Unjust, The Christian Science Monitor, March 19, 1991 at

18.

Barr, US: World's Lock-'Em-Up Leader, The Christian Science Monitor, March 7, 1991.

Bishop, Mandatory Sentences in Drug Cases: Is the Law Defeating Its Purpose? The New York

Times, June 8, 1990.

Broom, Judge says drug war hurt by sentencing law, Seattle Times, Nov. 2, 1990 at C4.

Cassella, Packed Prisons? Blame Congress, The Washington Post, Dec. 15, 1989.

Cauchon, The scales of justice may be tipped unfairly, USA Today, June 24, 1991.

Cope, U.Va. Student Gets 13 Months in Drug Case, Judge says Mandatory Sentencing 'Tears Up the

Court's Conscience,' The Washington Post, June 6, 1991.

Heller, Judge Criticizes Mandatory Minimum Sentences, Rutland Herald June 12, 1990.

Hiskey, Tougher Sentences Pack Prisons, Atlanta Constitution, Sept. 11, 1990 at Al.

Kill, Crime Proposal's Effect on Gun Use Is Questioned, The New York Times, May 24, 1991 at A14.

Isikoff, Crime Bill's Costs Worry U.S. Judges, Senate Plan Seen Adding Inmates, July 22, 1991 at Al.

C-3
Isikoff and Thompson, Getting Too Tough on Drugs, The Washington Post Nov. 4, 1990 at Cl.

LaFraniere, Prison Term Now More Likely for Most Crimes, Sharp Rise in Inmate Population Analyzed

by Justice Aide; Longer Sentences Discounted, The Washington Post, March 29, 1991 at A6.

LaVelle, Minimum term laws declared bad, as a rule, The San Diego Union, July 8, 1991.

Marcus, Life in Prison For Cocaine Possession? The Washington Post, Nov. 5, 1990 at 1.

Pelham, Federal Court Watch: Hogan Resists Sentencing Guidelines, Legal Times, Apr. 30, 1990,

at 7.

Price, Raising the Ante on Crime, Penalties Grow with Md. Sentencing Law, The Washington Post,

Apr. 12, 1990 at Al.

Stotler, Sentencing Guidelines, Los Angeles Times, Oct. 13, 1990 at B5.

Sturgess, The Case Against Fixed Time, Legal Times, May 6, 1991 at 1.

The New York Times, Oct. 22, 1990 at A18.

The Philadelphia Inquirer, Unfitting punishments, Mandatory sentences arent tougher on crime,

July 23, 1991 at 16A.

The Washington Post, Guidelines and Minimums, July 23, 1991 at A20.

The Washington Post, July 17, 1990 at A10.

The Washington Post,. Sept. 28, 1990 at A26.

The Washington Post, May 13, 1986 Al.

The Washington Post, May 12, 1986 Al.

The Washington Post, May 11, 1986 Al.

Thompson, D.C. Student is Given 10 Years in Drug Case, Judge Urges Request for Bush

Commutation, The Washington Post, Nov. 1, 1990 at Bll .

Thompson, Facts Beyond Case at Hand Can Lengthen Prison Term, Some Call Sentencing Just a

Computation, July 22, 1991 at Al.

Wallace, Overcrowding Crisis Worsens, Federal Prisons on Verge of Explosion, Legal Times, June 15

1987, at 12.

C-4
Watson, Wardens Say Tough Sentencing Ties Their Hands, Legal Times, Apr. 15, 1991 at 1.

Williams, Tougher Sentencing May Soon Overcrowd Federal Prison System, The Pittsburgh Press,

Jan. 22, 1989.

C. Magazine Articles

Fitzgerald, Dispatches from the Drug War: Tough Drug Sentences Sound Great but Dont Work,

Common Cause Magazine Jan./Feb., 1990.

Massachusetts Lawyers Weekly, Oct. 22, 1990 at 1.

The Economist, July 21, 1990, at 20.

Taylor, Ten Years for Two Ounces, Congress is Packing Prisons with Bit Players in Small-Time Drug

Deals. The American Lawyer, 16 Mar. 1990.

U.S. News and World Report, From an Expert - Some Ideas on What's Needed to Fight Crime,

June 20, 1977.

Wilson, Thinking About Crime: The Debate Over Deterrence, The Atlantic Monthly, Sept., 1983.

C-5

Appendix D

Technical Appendix to the Empirical Study

This appendix provides a description of the three main data sources used in the empirical analysis

discussed in Chapter 5. Each data set will be described in turn, listing and discussing its source,

available information, the research questions addressed, known problems and caveats, and analyses

used.

A. Federal Probation Sentencing and Supervision Information System (FPSSIS)

1984 - 1990

The FPSSIS data base exists under the authority of the Administrative Office of the U.S. Courts. The

sentencing portion of this data collection system was in operation from January, 1984 to September,

1990. Sentencing records in this system are based on Probation Form 3W, "Report of Federal

Sentence," which is completed by federal probation officers. In virtually all cases, FPSSIS

sentencing records are generated for cases in which a presentence report has been prepared.

FPSSIS data utilized in the mandatory minimums project were compiled from historical FPSSIS

information provided by the Administrative Office of the U.S. Courts and were employed in two sets

of statistical analyses. Data files were organized by sentencing dates into time periods from January

1984 through August 1990. Sentencing records for corporate defendants and those with solely petty

offense convictions were eliminated for purposes of this study.

Federal Judicial Center Analysis of FPSSIS Data

The entire FPSSIS data base of 267,178 cases between January 1, 1984 and June 30, 1990 is

included. The time dimension in the analysis shifts from "semester" (January 1 - June 30; July 1-

December 31) to "year" (January 1 - December 31), depending on the number of cases available.

Offenses are classified as to whether the underlying conduct appears to have involved mandatory

minimum behavior. The data used to classify cases are the total pure drug amount and presence

of a weapon, as coded by probation officers from their presentence reports. (For example, if the

amount of heroin recorded in a case is above 100 grams, it is included in the analysis as a

"mandatory minimum behavior" pursuant to 21 U.S.C. § 841(b)(l)(B)(i)). The measure, used only

for behaviors that presently carry mandatory minimum terms, presents the proportion of defendants

sentenced at or above the minimum term prescribed by statute, including a description of the

relationship between various offense and offender characteristics and sentence over time.

Several data cautions are relevant to these analyses. First, FPSSIS information, prepared by the

probation officer, reflects the officer's - and not necessarily the court's - interpretation of offense

behavior. Second, drug amounts, defined statutorily as pure or mixture in activating a mandatory

minimum provision, are reported in FPSSIS at 100 percent purity, thereby underclassifying the

D-l
number of possible defendants for some drug types (ue., opiates and cocaine). On the other hand,

by listing aggregated drug amounts, which often would not be applicable under statute, FPSSIS

might overcount "mandatory minimum behavior." Overcounting also might have occurred by

including defendants with a weapon "present" based on FPSSIS criteria, which are not as strict as

the statutory requirement for an 18 U.S.C. § 924(c) conviction.

While mandatory minimums exist for other controlled substances, the analysis reports only on

marijuana, opiates, and cocaine. In FPSSIS, the drug category "cocaine" does not differentiate

between the drug in its powder and base forms. Mandatory minimum terms for cocaine base

defendants are triggered at significantly lower amounts of the drug than for cocaine powder

defendants, resulting in underestimation of defendants.

Mandatory minimum terms quoted in the findings are based only on drug amount and, if applicable,

on the presence of a weapon. FPSSIS data were insufficient to determine whether there was any

drug-related victim injury and whether the defendant had any prior felony drug convictions, thereby

underestimating applicable minimum terms. Finally, the sentences analyzed were imposed both

under pre- and post-Sentencing Reform Act provisions, translating into radically different "time

served" due to availability of parole (for non-mandatory defendants) and revised "good time"

calculations for all defendants.

Figures 1, 4, and 6 to 10 present the results of the FJC analysis. The validity of these findings is

affected by the accuracy in defining "mandatory minimum behaviors." A separate report on

longitudinal sentencing practices using these data is being prepared by the FJC.

US. Sentencing Commission Analysis of FPSSIS Data

The first analysis undertaken by the U.S. Sentencing Commission is statute based and includes only

cases (nearly 60,000 over the seven years available) in which the primary or secondary charge of

conviction was pursuant to a statute with mandatory minimum provisions. The analysis attempts to

assess conviction-based historical trends between 1984 and 1990 by presenting the frequency with

which the relevant statutes were applied to defendants. The analysis cannot separate defendants

convicted under mandatory minimum provisions from all defendants convicted under non-mandatory

provisions of the same statutes. Table 1 of this Report presents findings from this analysis.

A second analysis utilizes the same selection criteria as the FJC analyses to identify cases for which

underlying conduct involved mandatory minimum behavior. The distribution of sentences, including

means and medians, are presented as box and whisker plots from 1984 to 1990. Mean sentences

are calculated using zero for cases receiving no prison terms and truncated higher terms (including

life) at 360 months.

It should be noted when reviewing sentencing trends in the historical analysis that, quite apart from

the impact of mandatory minimum legislation, other historical changes have affected the meaning

of sentence length with respect to "time served." For example, the 1984 Sentencing Reform Act

D-2
abolished parole and redefined "good time," thereby modifying (and increasing) the actual length

of time served independent of sentence length.

In addition, from 1984 to 1990 a number of statutes, specifically those governing controlled

substance and firearms violations, have been amended and their mandatory provisions enacted or

increased. Factoring these changes into the findings, and allowing for the necessary "lag time"

between enactment and application, should be considered when reading these tables.

Figures 2 and 3 of this Report present findings from this analysis.

B. U.S. Sentencing Commission Monitoring Data

By statute, information on each case sentenced pursuant to the Sentencing Reform Act of 1984 is

submitted to the U.S. Sentencing Commission. This information consists of five documents,

including the presentence report, judgment of conviction order, report on the sentencing hearing,

any written plea agreement, and guideline worksheets. As documentation is received, information

on the defendant, charges of conviction, and guideline and sentencing factors are entered into the

Sentencing Commission's Monitoring data system. Until August 31, 1990 when a match was made

for a case with the FPSSIS data file, variables from that file were also imported to supplement the

Monitoring data base. (From September 1, 1990 forward, the Sentencing Commission began

collecting some of the information no longer available from FPSSIS.)

This report is based on the Sentencing Commission's Monitoring data set for fiscal year 1990

(MONFY90), with 29,011 cases sentenced between October 1, 1989 and September 30, 1990. It

incorporates information from four of its data collection modules: Receipt Control, Basic Sentencing

Information, and Guideline Application for 100 percent of cases received and Departures for a 25

percent random sample of cases. Cases with missing information for one or more of the variables

in any given analysis were excluded from that analysis. Tables present the adjusted numbers and

percentages.

Due to the specific purpose of this project, substantial verification was performed to determine the

mandatory minimum status of cases convicted under relevant statutes. As a result, from the USSC

data (unlike the FPSSIS data) it was possible to distinguish not only defendants convicted under any

of the relevant statutes, but the ones actually convicted under one or more of the mandatory

minimum provisions of these statutes.

The statutory minimum variable codes the length of the mandatory prison term applicable including

terms under statutes for which the enhancement is consecutive to any other sentence. Information

on departure status and reasons was available for a random 25 percent sample of the FY90

population.

The purpose of the analysis in this section is to portray more accurately the application of mandatory

minimum provisions as statutes of conviction. A profile of mandatory minimum guideline defendants

D-3
along with a profile of all federal guideline defendants are provided. In addition, a comparison

between FY90 controlled substance defendants convicted and not convicted of mandatory minimum

provisions is presented in Appendix E. The validity of the conclusions is dependent on the

presence and accuracy of a defendant's mandatory minimum status as recorded in the presentence

report.

Tables 2 to 5 and E-l to E-3 present findings for this section.

C. U.S. Sentencing Commission Sample Data Source

While the previously enumerated data sources provide important information on the application of

mandatory minimums, a more inclusive perspective on their potential applicability at the behavioral

or real offense level and their utilization by government at the charging level was sought. For that

purpose, a special Sentencing Commission study was designed and undertaken to review a sample

of case files from U.S. Sentencing Commission Monitoring data for fiscal year 1990.

To reflect public and congressional concern, as well as relative frequency of occurrence in the court

system, it was decided to concentrate on controlled substance offenses and firearms violations. To

make the task empirically manageable, a 12.5 percent random sample was selected from the data

base of 29,011 cases. Initial computer screening identified 2,210 relevant sample cases, qualifying

due to the presence of drugs in the offense, drugs and weapons, or robbery with weapons.

An analysis of the relevant substantive and penalty statutes identified the elements of offense

behavior indicating case eligibility for mandatory minimum charges; e.g., the amount of drug by type

sufficient to invoke a 21 U.S.C. § 841(b)(l)(A) or requirements satisfying the "using or carrying"

firearm provision for an 18 U.S.C. § 924(c).

A coding instrument was developed incorporating these statutory elements, and all sample cases

were carefully reviewed and coded. A conservative interpretation of the legal criteria was chosen

in order to minimize the chance of inclusion for cases not clearly mandatory in their offense

behavior. Drug amounts were based on a single drug distribution or trafficking transaction when

the amount for that drug type was statutorily sufficient to warrant a mandatory charge. Drug

amounts were not aggregated across drug types and separate events. Cases involving attempts and

conspiracies were excluded if there was no indication of one clear, continuous plan, or if the

conspiracy ended prior to November 18, 1988. Mandatory applications based on the provisions of

21 U.S.C. § 845 were made only when the documents clearly indicated distribution to a minor,

employing a minor, or occurrence within 1,000 feet of a school. Once a basic qualifying amount

was established, evidence for enhancing factors was reviewed. The defendant's criminal history was

reviewed, and priors counted only when they were clearly for adult felonious drug convictions, or

for felony crimes of violence in the case of 18 U.S.C. §§ 922(g) and 924(e) charges. Firearms

charges were viewed as applicable when the defendant carried or used the firearm; had it within

reach (for example, in the car), or in close proximity to the drugs; or was part of a drug conspiracy

in which a co-conspirator was indicted of weapon possession.

D-4
Case review of all sample cases was conducted by professional Sentencing Commission personnel,

including its research staff, legal staff, and probation officers. Legal staff were continuously

consulted for resolution of the more complex cases, and quality control was performed on 100

percent of the cases.

Case review decisions were guided by a criterion of "reasonableness," rather than "beyond a

reasonable doubt," in the search for indications of mandatory minimum behavior. The presentence

report, which served as the primary data source, collects information for the sentencing phase, and

therefore does not necessarily provide a thorough analysis on the adequacy of evidence for purposes

of conviction. Cases were included in the sample if the behavioral "facts" (as available and

presented in the files) showed clear and reasonable indication of drugs or weapon-related behavior

sufficient to warrant application of a mandatory minimum provision.

The screening process yielded a sample of 1,165 cases, representing defendants for whom the

offense behavior indicated the appropriateness of a mandatory minimum penalty. The mandatory

minimum level was determined based on applicable drug amount, firearms, victim components, and

qualifying priors, and was expressed as "indicated mandatory minimum sentence" in terms of

months. An assumption of concurrent sentencing was used in arriving at this figure for multiple

mandatory counts, except in cases when the mandatory enhancement was consecutive by statute.

For the 1,165 defendants, information was recorded on real offense components, indictment history,

mode of conviction, convicted charges, and sentence imposed, as well as plea agreements,

stipulations, and guideline factors.

At the first level of analysis, findings explored the relationship between the proportion of cases to

be sentenced at or above indicated mandatory minimums and a series of independent variables

characterizing each case, such as circuit, offense, and defendant factors. These findings were further

pursued for defendants at the 60-month and 120-month indicated mandatory minimum levels by

assessing the relationship between significant factors and outcomes at other stages of processing

(e.g., indictment, departure). The composite tables (for example, Table 12) provide a series of

bivariate analyses that provide easier tracking of the handling of mandatory minimum behavior from

potential to indicted to convicted. Each bivariate table includes a slightly different number of

cases (due to variations in missing information) on which the 100 percent is computed. Utilizing

chi square, tests of significance are calculated for all analyses, assuming a null hypothesis of no

relationship between the variables. Relationships significant at the .05 or .01 level are reported in

the table footnotes.

Some of the relationships were further analyzed utilizing multivariate probit analysis to determine

the simultaneous effect of various factors on whether a defendant was convicted and sentenced at

the appropriately indicated level of mandatory sentence. This analysis is discussed in Appendix F.

A number of caveats are in order for this section. First, as with the FPSSIS data, the main source

of information was the presentence report with its version of the real offense components. Whenever

possible, it was supplemented and verified by other sources, such as the written plea agreement and

D-5
mandatory minimum penalty, undoubtedly some potential cases were excluded, underestimating the

incidence of this offense behavior and, ultimately, its reduction in the system. Third, the Sentencing

Commission's monitoring data do not include any direct documentation from the assistant U.S.

attorney, and charges of indictment (original, superseding, or an information) had to be ascertained

indirectly from the presentence report. In some cases, it was impossible to know whether the

indictment recorded was an inducement to or a result of plea negotiations. Finally, while the sample

study is probably representative of controlled substance cases, and to a lesser degree of firearms

violations, it is silent on the issue of applying mandatory minimum penalties to other offense types

in the federal system.

In summary, the purpose of the sample study was to supplement the FPSSIS and Sentencing

Commission data with pertinent pre-conviction information, and to allow for a procedural tracking

of cases and application of mandatory minimum provisions at the various stages of the criminal

justice process.

Tables 11 to 27 and Figure 5 present findings for this section.

D-6
Appendix E

Mandatory Minimum Defendant Profiles

for Similar Controlled Substance Offenses

The following analysis provides profiles of three populations of controlled substance defendants

sentenced in fiscal year 1990. Profiles of offense characteristics, system and processing

characteristics, and offender characteristics are provided for controlled substance defendants

sentenced under 1) mandatory minimum provisions that did not include weapons enhancement

penalties, 2) mandatory minimum provisions that did include weapons enhancement penalties, and

3) statutory provisions containing no mandatory minimum provisions.

Table E-l provides offense profiles for defendants within the three populations. Over 95 percent

of defendants sentenced under drug mandatory minimums (no weapons convictions) involved drug

levels above those sufficient to invoke most mandatory minimum penalties. The remaining five

percent were likely to have triggered a mandatory minimum for simple possession or distribution

near a school. Cases involving weapons charges were less likely and non-mandatory minimum cases

were least likely to involve higher amounts of drugs.

Under the guidelines system, defendants with minor or minimal roles receive sentence reductions,

while defendants involved as supervisors, managers, and leaders receive sentence enhancements.

Table E-l reveals that over 70 percent of defendants in each population received no enhancements

or reductions for role in the offense. Additionally, the table indicates that cases involving any

mandatory minimums were more likely to receive guideline role enhancements (15.6% and 17.0%

compared to 7.2% for non-mandatory minimum defendants), and defendants with weapons

convictions were extremely unlikely to be considered minor or minimal participants.

By definition, all defendants convicted under weapons provisions should receive statutory penalty

enhancements. However, it is interesting to note that of those with no weapons conviction, 11.5

percent of drug mandatory minimum defendants and 7.8 percent of drug defendants with no

minimums also received guideline enhancements for weapon involvement. The reason for this is

that the sentencing guidelines (as explained more fully in Chapter 4) use a modified real offense

approach to sentencing that makes certain facts relevant to the determination of the sentence

regardless of the particular charges. For example, the use of a gun in a drug offense leads to a

higher guideline sentence regardless of whether the 18 U.S.C. § 924(c) gun enhancement statute

(containing a mandatory minimum) has been charged.2 While 696 defendants received statutory

weapons enhancements, an additional 1028 drug defendants who did not receive statutory

enhancements did receive guideline enhancements.

x

See Chapter 4, Section B of this Report.

2

See U.S.S.G. §2Dl.l(b).

E-l
Table E-1

PROFILES OF MANDATORY MINIMUM AND NON-MANDATORY

MINIMUM CONTROLLED SUBSTANCES DEFENDANTS

-OFFENSE CHARACTERISTICS-

(October 1, 1989 through September 30, 1990)

OFFENSE CHARACTERISTICS

TOTAL 13,076

DRUG QUANTITY (Approximation)3

Low

Medium

High

Missing (303/52 / 1,315)

GUIDELINE ROLE ADJUSTMENT

Enhanced

None

Reduced

Missing (59 / 24 / 83)

WEAPON

Number of cases with Guideline Enhancement4

Missing (307/53 / 1,320)

Number of Cases with Statutory Enhancement

Missing (0/0/0 )

ANY CRIMINAL HISTORY

No

Yes

Missing (14 / 4 / 21)

DEFENDANTS CONVICTED

UNDER MANDATORY

MINIMUM PROVISIONS1

(Excluding Convictions

under 18 USC § 924(c))

Number

5,413

240

2,472

2,398

837

3,847

670

587

0

1,972

3,427

Percent2

100.0

4.7

48.4

46.9

15.6

71.9

12.5

11.5

36.5

63.5

DEFENDANTS

CONVICTED

UNDER MANDATORY

MINIMUM PROVISIONS

OF 18 USC § 924(c)1

Number

696

219

218

207

114

528

30

22

696

174

518

Percent2

100.0

34.0

33.9

32.1

17.0

78.6

4.5

3.4

100.0

25.1

74.9

DEFENDANTS

CONVICTED

UNDER NO MANDATORY

MINIMUM PROVISIONS1

Number

6,967

3,778

1,226

648

495

5,271

1,118'

441

0

2,542

4,404

Percent2

100.0

66.8

21.7

11.5

7.2

76.6

16.2

7.8

36.6

63.4

1

 Of the 13,281 controlled substances cases, 205 were excluded due to missing information on the mandatory minimum indicator.

2

 The calculation of percentages excludes the missing cases. The number of cases missing information for each independent variable is identified in

parenthesis to the right of the "Missing" category. The first number in parenthesis identifies controlled substances cases with missing information for drug

mandatory minimum cases with no convictions under 18 USC § 924(c); the second number identifies missing information for those convicted under 18 USC

§ 924(c); the third number identifies missing information for those drug cases with no mandatory minimum provision.

3

 The drug quantity categories are identified from the base offense level for 2D1.1 cases as established by the court from the Report on the Sentencing Hearing

The numbers indicated in the missing category also include cases that did not apply 2D1.1 and thus were not applicable. When the Report on the

Sentencing Hearing was missing, information on base offense level for 2D1.1 cases was taken from the Presentence Report. The "Low" category includes

defendants whose drug amount is less than 100 grams of heroin or equivalents for other drugs as established by statute. The "Medium" category includes

defendants whose drug amount was greater than or equal to 100 grams but less than one kilogram of heroin or equivalents. The "High" category includes

defendants whose drug amount was greater than or equal to one kilogram of heroin or equivalents.

4

 Includes cases that received a two level enhancement for gun possession under Guideline 2D1.1(b))(1).

SOURCE: U.S. Sentencing Commission, 1990 Data File, MONFY90.

E-2
While previous comparisons between mandatory minimum defendants and the total population

showed no difference in prior criminal record (see discussion of Table 4 in Chapter 5), Table E-l

indicates that a slightly higher proportion of drug defendants with weapons convictions (74.9%) have

a prior criminal history than do drug defendants with no weapons convictions.

Table E-2 further develops the defendants' statistical profile by reviewing judicial circuit, mode of

conviction, length of sentence, and departure status. While the Fifth Circuit accounts for almost

one-quarter of the federal non-mandatory minimum drug cases, the Sixth Circuit generates the

greatest proportion of mandatory minimum drug cases involving weapons convictions, and the

Eleventh Circuit is most highly represented in drug mandatory minimum cases with no weapons

convictions.

More extreme variations between the drug populations are found when examined by mode of

conviction. Over 90 percent of controlled substance defendants with no mandatory minimums

applied are convicted pursuant to a guilty plea. Comparatively, only 72.4 percent of drug minimum

defendants (no weapons convictions) and, at the extreme, approximately 60 percent of drug

minimum defendants with weapons enhancements are convicted as a result of guilty pleas.

As would be expected from previous findings, sentences were higher for defendants sentenced

pursuant to mandatory minimum provisions. Controlled substance defendants with weapons

convictions were most likely to receive sentences at the highest ranges, a finding resulting from a

weapons sentence being both mandatory and consecutive by statute. Reviewing both mean and

median sentence lengths, Table E-2 shows that average sentences for drug minimum defendants are

generally three times higher and weapons minimum defendants four times higher than sentences for

non-minimum drug defendants.

While drug cases, as a group, represent both the highest number and the highest rates of departure

from the guidelines over time, comparisons on Table E-2 indicate that drug defendants with

mandatory minimums and no weapons convictions are slightly more likely to receive downward

departures for substantial assistance (14.4% compared to 10.6%). Defendants with weapons

convictions and defendants with no applicable mandatory minimums are equally likely to receive

such adjustments.

The final comparisons between the three groups of controlled substance defendants involve offender

characteristics. Drug defendants with weapons convictions are more likely to be male, most likely

to be Black (48.9%), and least likely Hispanic (14.2%). Defendants with no minimums applied are

most likely to be White (46.2%). No difference between the three populations in distribution by

age was found. (See Table E-3.)

E-3
Table E-2

PROFILES OF MANDATORY MINIMUM AND NON-MANDATORY

MINIMUM CONTROLLED SUBSTANCES DEFENDANTS

-SYSTEM/PROCESSING CHARACTERISTICS-

(October 1, 1989 through September 30, 1990)

CRIMINAL JUSTICE CHARACTERISTICS

TOTAL 13,076

UNITED STATES CIRCUIT

D.C. Circuit

First Circuit

Second Circuit

Third Circuit

Fourth Circuit

Fifth Circuit

Sixth Circuit

Seventh Circuit

Eighth Circuit

Ninth Circuit

Tenth Circuit

Eleventh Circuit

Missing (0/0/0 )

MODE OF CONVICTION

Trial

Guilty Plea3

Missing (303 / 21 / 438)

SENTENCE (in months)4

Under 12

12-59

60-119

120 - 239

240 and over

Mean Length

Median Length

Missing (63 / 6 / 125)

DEPARTURES - 25% RANDOM SAMPLE5

TOTAL NUMBER IN SAMPLE6

Within Range

Upward

Substantial Assistance

Other Downward

Missing (29 / 1 / 24)

DEFENDANTS CONVICTED

UNDER MANDATORY

MINIMUM PROVISIONS1

(Excluding Convictions

under 18 USC § 924(c))

Number

5,413

179

166

489

233

554

627

422

227

283

900

256

1,077

1,409

3,701

46

766

2,292

1,686

492

113

84

1,296

970

5

183

109

Percent2

100.0

3.3

3.1

9.0

4.3

10.2

11.6

7.8

4.2

5.2

16.6

4.7

19.9

27.6

72.4

0.9

14.5

43.4

32.0

9.3

N/A

N/A

39.3

76.6

0.4

14.4

8.6

DEFENDANTS

CONVICTED UNDER

MANDATORY MINIMUM

PROVISIONS OF

18 USC § 924(c)1

Number

696

31

12

33

20

97

80

108

29

60

73

56

97

272

403

1

22

248

284

135

162

123

152

123

2

16

10

Percent2

100.0

4.5

1.7

4.7

2.9

13.9

11.5

15.5

4.2

8.6

10.5

8.0

13.9

40.3

59.7

0.1

3.2

36.0

41.2

19.6

N/A

N/A

4.7

81.5

1.3

10.6

6.6

DEFENDANTS

CONVICTED UNDER NO

MANDATORY MINIMUM

PROVISIONS1

Number

| 6,967

83

149

651

258

745

1,683

596

291

452

1,034

393

632

590

5,939

952

3,652

787

349

87

43

27

1,834

1,430

31

191

158

Percent2

53.3

1.2

2.1

9.3

3.7

10.7

24.2

8.6

4.2

6.5

14.8

5.6

9.1

9.0

91.0

16.3

62.7

13.5

6.0

1.5

N/A

N/A

56.1

79.0

1.7

10.6

8.7

1

0f the 13,281 controlled substances cases, 205 were excluded due to missing information on the mandatory minimum indicator.

2

 The calculation of percentages excludes the missing cases. The number of cases missing information for each independent variable is identified in

parenthesis to the right of the "Missing" category. The first number in parenthesis identifies controlled substances cases with missing information for drug

mandatory minimum cases with no convictions under 18 USC § 924(c); the second number identifies missing information for those convicted under 18 USC

§ 924(c); the third number identifies missing information for those drug cases with no mandatory minimum provision.

3

The "Guilty Plea" category includes defendants sentenced subsequent to a plea of guilty or noto contenders.

"The calculation for mean and median prison sentence excludes cases that received no imprisonment. Life sentences were coded as 360 months

5

 Departure data provided by the USSC is on an ongoing 25% random sample of guideline cases. "Upward," "Substantial Assistance," and "Other Downward"

departures involve cases that have been sentenced above the guideline maximum or below the guideline minimum as established by the court

Of the 3,228 controlled substances cases in the departure sample, 43 were excluded due to missing information on the mandatory minimum indicator.

SOURCE: U.S. Sentencing Commission, 1990 Data Rle, MONFY90.

E-4
Table E-3

PROFILES OF MANDATORY MINIMUM AND NON-MANDATORY MIMIMUM

CONTROLLED SUBSTANCES DEFENDANTS

-OFFENDER CHARACTERISTICS-

(October 1, 1989 through September 30, 1990)

DEFENDANT CHARACTERISTICS

TOTAL 13,076

DEFENDANT'S SEX

Male

Female

Missing (301 / 20 / 441)

DEFENDANT'S RACE

White

Black

Hispanic3

Other4

Missing (357 / 25 / 472)

DEFENDANT'S AGE

Under 22

22-25

26-30

31 -35

36-40

41 -50

Over 50

Missing (9/1/5 )

DEFENDANTS CONVICTED

UNDER MANDATORY

MINIMUM PROVISIONS1

(Excluding Convictions

under 18 USC §924(c))

Number

5,413

4,526

586

1,705

1,859

1,454

63

528

952

1,135

957

742

781

310

Percent2

100.0

88.5

11.5

33.6

36.6

28.6

1.2

9.8

17.6

21.0

17.7

13.7

14.4

5.7

DEFENDANTS

CONVICTED

UNDER MANDATORY

MINIMUM PROVISIONS

OF18USC§924(c)1

Number

696

638

38

237

328

95

11

79

123

144

116

93

99

41

Percent2

100.0

94.4

5.6

35.3

48.9

14.2

1.6

11.4

17.7

20.7

16.7

13.4

14.2

5.9

DEFENDANTS

CONVICTED

UNDER NO MANDATORY

MINIMUM PROVISIONS1

Number

6,967

5,537

989

3,002

1,621

1,756

116

593

1,183

1,584

1,404

951

903

344

Percent2

100.0

84.8

15.2

46.2

25.0

27.0

1.8

8.5

17.0

22.8

20.2

13.7

13.0

4.9

1Of the 13,281 controlled substances cases, 205 were excluded due to missing information on the mandatory minimum indicator.

2

The calculation of percentages excludes the missing cases. The number of cases missing information for each independent variable is

identified in parenthesis to the right of the "Missing" category. The first number in parenthesis identifies controlled substances cases with

missing information for drug mandatory minimum cases with no convictions under 18 USC § 924(c); the second number identifies missing

information for those convicted under 18 USC § 924(c); the third number identifies missing information for those drug cases with no

mandatory minimum provision.

3

The "Hispanic" category includes both white Hispanics and black Hispanics, and as such the numbers reported underrepresent black

defendants.

"The "Other" category includes American Indians, Alaskan Natives, and Asian or Pacific Islanders.

SOURCE: U.S. Sentencing Commission, 1990 Data File, MONFY90.

E-5

Appendix F

Technical Discussion of the Probit Analysis

The multivariate analysis in this appendix is used to investigate the apparent gender and race effects

suggested in Tables 19 and 22 of Chapter 5. The analyses in Chapter 5 indicate that males and

non-whites appear more likely than females and whites to be sentenced at or above the mandatory

minimum. In contrast to these bivariate analyses, multivariate analyses allow for the study of

simultaneous effects for many different factors. By so doing, the unique, independent contribution

of each factor can be determined. In particular, this allows the researcher to unravel the effects of

the variables of concern, such as demographic characteristics, criminal history, and offense behavior.

The technique used here, a probit analysis, is closely related to linear regression. The dependent

variable is represented as either 0 or 1; 0 in this application denotes a defendant sentenced to less

than the mandatory minimum and 1 denotes a defendant sentenced to at least the mandatory

minimum. This is represented in the model as a linear function of explanatory variables, such as

demographic, offense behavior, and criminal history variables. The model can be represented as

where X^ is the value of the jth explanatory variable for the ith individual, /?.• is the "regression

coefficient" for the jth variable, Y±, the dependent variable, indicates whether the ith individual

received a sentence greater than or equal to the mandatory minimum, and u,- is an error term. The

key mathematical assumption in probit analysis is the probability that the dependent variable

assumes a value of 1 and follows a normal distribution.1 The probit coefficients, (/?), are estimated

using such an assumption about the data.

Explanatory variables used in the analysis are the defendant's race, sex, modified role, modified

base offense level, and prior drug convictions. Race has three categories, Black, Hispanic and

White; sex is coded as Male or Female; and role represents a) Low level carrier, unloader, enabler

or go-between, b) Street dealer, c) Dealer above street level, or d) High level manufacturer, importer financier. Modified base offense level represents the amount of drugs greater than the amount

necessary to trigger the applicable mandatory minimum drug statute. Prior convictions are coded

as 0, 1, or 2 where 2 represents 2 or more prior drug convictions.2

*See Maddala, Limited-dependent and qualitative variables in Econometrics (1983) for description of this

technique.

^ e multivariate analysis examined a number of additional variables that were not included in the final analysis

either because they were highly correlated with other variables in the model or they were not significant. Drug type

and plea or trial convictions were highly correlated with the statute of conviction and the outcome variable,

respectively. Presence and use of a firearm, citizenship, scope of activity, and number of co-defendants were found to

be insignificant and, thus, eliminated from the final model.

F-l
The analysis utilizes 907 defendants from the sample study data base described in Chapter 5. The

number of defendants in the multivariate analyses is generally smaller than most of the other

analyses in this Report because these analyses require that the values of the variables in the model

must be non-missing for all individuals in the sample. For example, a case with race missing but

sex present can be used in a bivariate table, but it cannot be used in a multivariate analysis which

requires non-missing values for both race and sex.

Four probit models were run. All models used modified role and modified base offense level as

explanatory variables. Model 1 added race and sex, and Model 2 added race, sex, and prior drug

convictions. The remaining two models eliminated both race and sex variables and replaced them

with a race*sex interaction variable which has six values (White male, White female, Black male,

Black female, Hispanic male, and Hispanic female). The purpose of this variable was to further

identify any differential effects occurring within the race and sex breakdown. Model 3 used the

race*sex interaction instead of race and sex, while Model 4 added prior drug convictions to the

race*sex interaction. The analyses were conducted using PROC PROBIT in the SAS software

package. The results are provided in Table F-l.

The general format of the table is that p-values are given for the type of variables. These are

followed by the probit coefficients. For example, using Model 1, the race variable has a p-value of

.047 while the sex variable has a p-value of .234.3 The probit coefficients are interpreted as probabilities compared to a base or reference level for that variable. The base levels are White for race,

White-male for race crossed with sex, female for sex, street dealer for modified role, and 1 for

number of prior drug convictions. Modified base offense level is a continuous variable ranging from

-26 to +43 and the reference level is 0.

Four models are presented. The dependent variable is the proportion of cases that receive at or

greater than the mandatory minimum sentence. This was achieved by 536 of the 907 defendants

in the sample (59%). In terms of the overall fit of the models to the data, Models 2 and 4 fit better

than 1 and 3 and Model 4 fits slightly better than the other three models.4 The coefficients are

generally fairly stable across the different models, suggesting that these explanatory variables are

somewhat independent of each other.

3The convention is to regard p-values < 0.05 as statistically significant.

4The log of the likelihood function in Model 1 was -585.6 as compared with Model 3 of -584.7 signifying that the

extra 3 degrees of freedom spent to create the race*sex interaction does not improve the fit. On the other hand,

bringing in prior drug convictions is an improvement, resulting in the largest log likelihood value of -572.6.

F-2
Table F-l

Results of Probit Analyses

Coefficient

INTERCEPT

RACE

Black

Hispanic

SEX

Male

RACE*SEX

Black Fern

Black Male

Hisp Fem

Hisp Male

White Fem

MOD ROLE

Low (1-6)

Sells (8)

Finance(>8)

MOD OFF LEVEL

Per Unit

PRI CONVICT

None

2 or more

Model 1

-.02

(p=.O47)

.25

.19

(p=.234)

.15

(p=.O15)

-.39

-.06

-.15

(p<.001)

.05

Model 2

-.40

(p=.O28)

.29

.16

(p=.138)

.19

(p=.003)

-.42

-.03

-.10

(p<.001)

.05

(p<.001)

.41

-.47

Model 3

.11

(p =.086)

-.06

.29

.24

.17

-.11

(P=.O19)

-.38

-.05

-.13

(p<.001)

.05

Model 4

-.23

(p=.O35)

-.09

.33

.21

.14

-.15

(p=.004)

-.41

-.02

-.07

(p<.001)

.05

(p<.001)

.42

-.47

F-3
The results in Table F-1 indicate that sex is not a statistically significant variable, while race, role

in the offense, prior drug felony convictions, and adjusted base offense level are significant. For

race crossed with sex, Black and Hispanic males and Hispanic females are more likely to receive

greater sentences when compared to White males. Black and White females are less likely to

receive sentences above the mandatory sentences than other categories.

As noted above, the probit coefficients can be interpreted as proportional to probabilities. Scanning

the table shows that for the race variable, Blacks and Hispanics are more likely to receive sentences

greater than the mandatory minimum than are Whites. This conclusion is derived from the coefficients (.25 and .19) for Blacks and Hispanics, respectively, in Model 1 and (.29 and .16) for Blacks

and Hispanics for Model 2. The interpretation is that a Black offender has a probability of receiving

a sentence somewhat greater than a White offender with otherwise identical characteristics. The

p-values show these coefficients to be statistically significant.

The table shows that role is also statistically significant. All coefficients in the four models have

a negative sign indicating that the three categories (Low level dealer, Seller above street level, and

High level financier, manufacturer, etc.) have a lesser chance of receiving mandatory minimum

sentences than do street dealers.

Finally, in Models 2 and 4, prior drug conviction shows an inverse relationship with what might be

expected. Individuals with no prior drug felony convictions are more likely (.45 in both models) to

get a sentence greater than the mandatory minimum than those with 1 (the reference level) or 2 or

more.

In summary, the findings suggest that race appears to significantly affect the probability that an

individual receives at least the mandatory minimum. Whites are least likely to be so sentenced

followed by Hispanics and, finally, Blacks who are most likely to receive at least a mandatory

minimum sentence. Sex is not significant and the race*sex interaction is significant in one model

and not significant in the other. Role is significant with low level individuals least likely to be sentenced at or above and street dealers most likely to be so sentenced. Modified base offense level

and prior drug convictions are significant in all four models.

F-4
Appendix G

Resolutions of the Judicial Conference and the

Twelve Circuit Courts of Appeals

Judicial Conference Resolution

As adopted by the Judicial Conference and reported in the Report of the Proceedings of the Judicial

Conference of the United States, March 13, 1990:

COMMITTEE ON CRIMINAL LAW

AND PROBATION ADMINISTRATION

MANDATORY MINIMUM SENTENCES

Observing that the Third, Eighth, Ninth, and Tenth Circuits

had passed resolutions in opposition to mandatory minimum

sentences, the Judicial Conference voted to urge the Congress

to reconsider the wisdom of mandatory minimum sentence

statutes and to restructure such statues so that the U.S.

Sentencing Commission may uniformly establish guidelines for all

criminal statutes to avoid unwarranted disparities from the scheme

of the Sentencing Reform Act (Title il of the Comprehensive Crime

Control Act of 1984, Public Law 98-473).

G-l
Resolution of Committee on Criminal Lav fc Probation Administration

Conomino Mandatory Minimum Sentences

The Judicial Conference Committee on Criminal Lav and

Probation Administration's ongoing review of the impact of

guideline sentencing on the federal courts has disclosed that a

significant number of sentences imposed are effectively

determined not by Sentencing Guidelines that reflect the judgment

of the United States Sentencing Commission but by mandatory

minimum sentences set by the Congress.* Aa has been noted by

several Sentencing Commissioners, including its Chairman Judge

Wilkina, and by a number of Senators including Senators Kennedy

and Thurmond, mandatory minimum sentencing lavs are inconsistent

with the scheme of guideline sentencing and impair the efforts of

the Commission to fashion sentencing guidelines in accordance

with the dictates of the Sentencing Reform Act. Additionally,

many district judges have reported that mandatory minimum

sentences have frequently had to be imposed in factual situations

in which the district judge was convinced that Congress could not

have intended that such defendants receive long mandatory minimum

sentences without parole. - Those judges have also expressed the

view that sentences in such cases would be more appropriately

governed by sentencing guidelines in which the Congress directed

*. Moreover, a number of the Guidelines themselves reflect the

impact of mandatory minimum sentence* that pre-dated the

Guidelines,

G-2
the Commission to set the guidelines at certain high levels.

Such Guideline Sentences would, however, import lome measure of

flexibility into the systen because the guideline structure

permits departures

in extraordinary cases not fitting the conventional profile of

the Guideline involved.

Concerned about the natter in view of the foregoing,

the Committee requests the Administrative Office Statistical

Analysis and Reports Division, the Federal Judicial Center, the

U.S. Bureau of Prisons and the U.S. Sentencing Commission to

•tudy the problem, develop data on the number of sentences that

are driven by the mandatory mimimums, and assess the impact of

such sentences.on the system. The Committee will reconsider the

matter after receiving these reports and make an appropriate

recommendation.

Resolved on June 23, 1989

G-3
Resolution Concerning Mandatory Minimum Criminal Sentences

Submitted by the Judicial Council of the

United States Courts for the Firpfc Circuit

Whereas, The Judicial Council of the First Circuit notes

that over the past several years the United States Congress

has enacted numerous laws requiring the imposition of

mandatory minimum prison sentences for various offenses;

Whereas, The Council also notes that several members of

the United States Sentencing Commission, as well as other

commentators, have observed that mandatory minimum sentencing

laws are inconsistent with the scheme of guideline sentencing

and impair the efforts of the Commission to fashion

sentencing guidelines in accordance with the dictates of the

Sentencing Reform Act;

Whereas, The Council further notes that these statutory

provisions leave no discretion with the trial courts, forcing

the courts in many instances to impose unduly harsh

sentences, not subject to parole, and;

Whereas, the Judicial Council of the First Circuit looks

with disfavor on mandatory minimum sentencing statutes, for

these reasons;

It is hereby resolved that the Judicial Council of the

First Circuit requests the United States Congress to

reconsider the wisdom of all mandatory minimum sentencing

statues, and to establish such alternate policy as the

Congress deems appropriate in order to retain some degree of

flexibility in the criminal sentencing process.

G-4
RESOLUTION OF THE JUDGES

OF TEE

SECOND CIRCUIT JUDICIAL CONFERENCE

1. The proliferation of mandatory minimum sentences threatens

to undermine our current system of guideline sentencing. Mandatory

minimum sentences impede the ability of the Sentencing Commission

to fashion guidelines which conform to the Sentencing Reform Act

and the ability of the Federal Judiciary to impose appropriate

sentences.

2. At the urging of the Third, Eighth, Ninth and Tenth

Circuit Judicial Conferences, and on motion of the Committee on

Criminal Law and Probation Administration, the Judicial Conference

of the United States has voted "to urge the Congress to reconsider

the wisdom of mandatory minimum sentence statutes and to

restructure such statutes so that the U.S. Sentencing Commission

may uniformly establish guidelines for all criminal statutes to

avoid unwarranted disparities from the scheme of the Sentencing

Reform Act."

3. Many prominent legislators, including Senator Kennedy of

Massachusetts and Senator Thurmond of South Carolina, agree that

mandatory minimum sentences are inconsistent with the system of

guideline sentencing.

G-5
4. In the opinion of the judges of this Circuit, the goal of

developing a fair and coherent sentencing system can more readily

be attained in the absence of mandatory minimum sentences.

IT IS THEREFORE RESOLVED THAT the Judicial Conference be urged

to instruct the Administrative Office and the relevant committees

of the Judicial Conference to take all steps necessary to inform

Congress of the adverse impact of sta-tutorily mandated minimum

sentences.

G-6
Resolution Concerning Mandatory Crfajn&l

Submitted bv the District and Circuit Judaaa

Of the Third i i

Whereas, over the past eeveral years congress has

•nacted numerous lave requiring the district court* to impose

mandatory prison sentences for various offenses;

Whereas, as has been noted by several Members of the

United states Sentencing Coaaission, Including its Chairman

Judge wilKins, and by a number of Senators including Senators

Kennedy and Thurmond, mandatory minimum sentencing lavs are

inconsistent with the scheme of guideline sentencing and impair

the efforts of the Commission to fashion sentencing guidelines in

accordance with the dictates of the Sentencing Reform Act;

Whereas, these statutory provisions leave no discretion

with the trial courts, forcing the courts in many instances to

impose long sentences, not subject to parole, which are

inordinately harsh;

Whereas, sentences in such cases would be more

appropriately governed by sentencing guidelines in which the

Congress directed the Commission to set the guidelines at certain

high levels, but would at least permit some measure of

flexibility because the guideline structure permits departures

in extraordinary cases not fitting the conventional profile of

the Guideline involved; and

Whereas, the Judges of the Third Circuit looX with

disfavor on statutory minimum sentences for these reasons;

G-7
Now, therefore, be it resolved that the Third Circuit

Judicial Conference urge the Judicial Conference of the United

States to submit a resolution to the Congress, urging the

Congress to reconsider the wisdom of all mandatory minimum

sentencing statutes, and to establish such alternate

Congressional policy as the Congress deems appropriate to retain

some degree of flexibility in the criminal sentencing process.

G-8
RESOLUTION

OF THE

JUDICIAL COUNCIL OF THE FOURTH CIRCUIT

Observing that the Third, Eighth, Ninth, Tenth Circuits,

and the Committee on Criminal Law and Probation Administration, had

passed resolutions in opposition to mandatory minimum sentences,

the Judicial Conference voted to urge the Congress to reconsider

the wisdom of mandatory minimum sentence statutes and to restructure such statutes so that the U.S. Sentencing Commission may

uniformly establish guidelines for all criminal statutes to avoid

unwarranted disparities from the scheme of the Sentencing Reform

Act (Title II of the Comprehensive Crime Control Act of 1984.

Public Law 98-473).

Be it therefore, RESOLVED on this 26th day of April 1991

that the Fourth Circuit Judicial Council adopts this Resolution

urging Congress to reconsider the wisdom of mandatory minimum

sentence statutes and to restructure such statutes so that the U.S.

Sentencing Commission may uniformly fashion guidelines to avoid

unwarranted disparities.

G-9
RESOLUTION OF THE UNITED STATES DISTRICT JUDGES

OF THE

FIFTH CIRCUIT

1. The Congress has created the United States Sentencing

Commission as an expert body to develop and continuously refine a

comprehensive body of consistent and rational sentencing law.

Substantial amounts of time and money have been invested in this

effort.

2. The proliferation of mandatory minimum sentences distorts

the rationality of the guideline system because such sentences

apply regardless of the defendant's role in the offense and of

other factors historically found relevant to sentencings. As a

result, they also often require the imposition of sentences which

are manifestly unjust.

3. On motion of the Committee on Criminal Law and Probation

Administration, the Judicial Conference of the United States has

voted "to urge the Congress to reconsider the wisdom of mandatory

minimum sentence statutes and to restructure such statutes so that

the U. S. Sentencing Commission may uniformly establish guidelines

for all criminal statutes to avoid unwarranted disparities from the

scheme of the Sentencing Reform Act." The Second, Third, Eighth,

Ninth and Tenth Circuits have approved similar resolutions.

4. The Federal Courts Study Committee recently concluded that

mandatory minimum sentences sweep too broadly, and the Sentencing

Commission has strongly urged the Congress to be especially

cautious about enacting further mandatory minimums and to give full

consideration to alternatives to those currently in effect.

G-10
5. The District Judges of the Fifth Circuit believe that the

goal of developing a fair and coherent sentencing system can more

readily be attained in the absence of mandatory minimum sentences.

IT IS THEREFORE RESOLVED THAT the Judicial Conference be urged

to instruct the Administrative Office and the Judicial Conference

to take all steps necessary to inform Congress of the adverse

impact of statutorily mandated minimum sentences.

DONE at Fort Worth, Texas on this 6th day of May, 1991.

FIFTH CIRCUIT

DISTRICT JUDGES ASSOCIATION

By:

Hon. Barefoot Sanders,

President

G-ll
RESOLUTION

RESOLVED by the Mississippi federal judges and their attorneyguests at their state meeting during the 1991 Fifth Circuit

Judicial Conference:

1. The Congress has created the United States Sentencing

Commission as an expert body to develop and continuously refine a

comprehensive body of consistent and rational sentencing law.

Substantial amounts of time and money have been invested in this

effort.

2. The proliferation of mandatory minimum sentences distorts

the rationality of the guideline system because such sentences

apply regardless of the defendants role in the offense and of

other factors historically found relevant to sentencings. As a

result, they also often require the imposition of sentences which

are manifestly unjust.

3. On motion of the Committee on Criminal Law and Probation

Administration, the Judicial Conference of the United States has

voted "to urge the Congress to reconsider the wisdom of mandatory

minimum sentence statutes and to restructure such statutes so that

the U. S. Sentencing Commission may uniformly establish guidelines

for all criminal statutes to avoid unwarranted disparities from the

scheme of the Sentencing Reform Act." The Second, Third, Eighth,

Ninth and Tenth Circuits have approved similar resolutions.

4. The Federal Courts Study Committee recently concluded that

mandatory minimum sentences sweep too broadly, and the Sentencing

Commission has strongly urged the Congress to be especially

G-12
cautious about enacting further mandatory minimums and to give full

consideration to alternatives to those currently in effect.

5. We believe that the goal of developing a fair and coherent

sentencing system can more readily be attained in the absence of

mandatory minimum sentences.

IT IS THEREFORE RESOLVED THAT the Judicial Conference be urged

to instruct the Administrative Office and the Judicial Conference

to take all steps necessary to inform Congress of the adverse

impact of statutorily mandated minimum sentences.

DONE at Fort Worth, Texas on this 6th day of May, 1991.

Hon. E. Grady J

Presiding Officer

G-13
RESOLUTION

RESOLVED by the Louisiana federal judges and their attorneyguests at their state meeting during the 1991 Fifth Circuit

Judicial Conference:

1. The Congress has created the United States Sentencing

Commission as an expert body to develop and continuously refine a

comprehensive body of consistent and rational sentencing law.

Substantial amounts of time and money have been invested in this

effort.

2. The proliferation of mandatory minimum sentences distorts

the rationality of the guideline system because such sentences

apply regardless of the defendant's role in the offense and of

other factors historically found relevant to sentencings. As a

result, they also often require the imposition of sentences which

are manifestly unjust.

3. On motion of the Committee on Criminal Law and Probation

Administration, the Judicial Conference of the United States has

voted "to urge the Congress to reconsider the wisdom of mandatory

minimum sentence statutes and to restructure such statutes so that

the U. S. Sentencing Commission may uniformly establish guidelines

for all criminal statutes to avoid unwarranted disparities from the

scheme of the Sentencing Reform Act." The Second, Third, Eighth,

Ninth and Tenth Circuits have approved similar resolutions.

4. The Federal Courts Study Committee recently concluded that

mandatory minimum sentences sweep too broadly, and the Sentencing

Commission has strongly urged the Congress to be especially

G-14
cautious about enacting further mandatory minimums and to give full

consideration to alternatives to those currently in effect.

5. We believe that the goal of developing a fair and coherent

sentencing system can more readily be attained in the absence of

mandatory minimum sentences.

IT IS THEREFORE RESOLVED THAT the Judicial Conference be urged

to instruct the Administrative Office and the Judicial Conference

to take all steps necessary to inform Congress of the adverse

impact of statutorily mandated minimum sentences.

DONE at Fort Worth, Texas on this 6th day of May, 1991.

n. John M. Dune,

C/presiding Officer

G-15
RESOLUTION

RESOLVED by the Texas federal judges and their attorney-guests

at their state meeting during the 1991 Fifth Circuit Judicial

Conference:

1. The Congress has created the United States Sentencing

Commission as an expert body to develop and continuously refine a

comprehensive body of consistent and rational sentencing law.

Substantial amounts of time and money have been invested in this

effort.

2. The proliferation of mandatory minimum sentences distorts

the rationality of the guideline system because such sentences

apply regardless of the defendant's role in the offense and of

other factors historically found relevant to sentencings. As a

result, they also often require the imposition of sentences which

are manifestly unjust.

3. On motion of the Committee on Criminal Law and Probation

Administration, the Judicial Conference of the United States has

voted "to urge the Congress to reconsider the wisdom of mandatory

minimum sentence statutes and to restructure such statutes so that

the U. S. Sentencing Commission may uniformly establish guidelines

for all criminal statutes to avoid unwarranted disparities from the

scheme of the Sentencing Reform Act." The Second, Third, Eighth,

Ninth and Tenth Circuits have approved similar resolutions.

4. The Federal Courts Study Committee recently concluded that

mandatory minimum sentences sweep too broadly, and the Sentencing

Commission has strongly urged the Congress to be especially

G-16
cautious about enacting further mandatory minimums and to give full

consideration to alternatives to those currently in effect.

5. We believe that the goal of developing a fair and coherent

sentencing system can more readily be attained in the absence of

mandatory minimum sentences.

IT IS THEREFORE RESOLVED THAT the Judicial Conference be urged

to instruct the Administrative Office and the Judicial Conference

to take all steps necessary to inform Congress of the adverse

impact of statutorily mandated minimum^sentences.

DONE at Fort Worth, Texas on this 6th day of May, 1991.

Hon. Patrick E. Higgrnbotham,

Presiding Officer

G-17
JUDICIAL CONFERENCE OF THE SIXTH CIRCUIT

MICHIGAN-OHIO-KENTUCKY-TENNESSEE

RESOLUTION

Whereas, the Sixth Circuit Judicial Conference has taken notice of the

significant number of statutes which require the imposition of a mandatory

minimum sentence rather than a sentence determined by application of the

Sentencing Guidelines; and,

Whereas, the Sixth Circuit Judicial Conference has concluded that

mandatory minimum sentencing laws are inconsistent with the purpose and goals

of guideline sentencing in accordance with the dictates of the Sentencing Reform

Act;

Resolved, that the Sixth Circuit Judicial Conference fully supports the

resolution of the Judicial Conference of the United States, adopted at its March

1990 meeting, to urge the Congress to reconsider the wisdom of all mandatory

minimum sentencing statutes.

Adopted by the Circuit, District, Bankruptcy, and Magistrate Judges of

the Sixth Circuit assembled at tfic Fifty-Second Annual Conference of the Sixth

Judicial Circuit on June 12, 1991.

THE JUDICIAL CONFERENCE

fetfttf

Gilbert S, Merritt

Chief Judge

G-18
of tfje JuogeS of tfje

Circuit Jubicial Council

Based on a sincerely held belief that the mandatory minimum sentences,

however framed, do not result in advancing the cause of justice and fairness,

And based on a belief that even a sincere desire to eliminate disparity is not

a sufScient reason to hamper the judiciary in its obligation to ensure that justice is

being served in the courtrooms of our nation,

Therefore, the judges of the Seventh Circuit Judicial Council unanimously

urge the Congress of the United States of America to consider the repeal of all

statutes that require the trial judge to impose a mandatory minimum sentence.

G-19
Resolution of the ligbth circrait Judicial conference

July 19/ lttf

The Judicial Conference Committee on Criminal Law and Probation

Administration's ongoing review of the impact of guideline

sentencing on the federal court* has disclosed that a significant

number of sentences imposed are effectively determined not by

Sentencing Guidelines that reflect the judgment of the United

State* Sentencing Commission but by mandatory •inimum sentences

set by the Congress.* As has been noted by several Sentencing

Commitsionern, including its Chairman Judge Wilkina, and by a

number of Senators including Senators Kennedy and Thurmond,

mandatory minimum sentencing laws are inconsistent with the

scheme of guideline sentencing and impair the efforts of the

Commission to fashion sentencing guidelines in accordance with

the dictates of the Sentencing Reform Act. Additionally, many

district judges have reported that mandatory minimum sentences

have frequently had to be imposed in factual situations in which

the district judge was convinced that Congress could not have

intended that such defendants receive long mandatory minimum

sentences without parole. Those judges have also expressed the

view that sentences in such cases would be more appropriately

governed by sentencing guidelines in which the Congress directed

the Commission to set the guidelines at certain high levels.

Such Guideline Sentences would, however, import some measure of

flexibility into the system because the guideline structure

permits departures in extraordinary cases not fitting the

conventional profile of the Guideline involved.

Concerned about the matter in view of the foregoing,

the Eighth circuit Judicial Conference (Executive

Session) requests the Administrative Office Statistical

Analysis and Reports Division, the Federal Judicial

Center, the U.S. Bureau of Prisons and the U.S.

Sentencing Commission to study the problem, develop

da.ta on the number of sentences that are driven by the

mandatory minimums, and assess the impact of such

sentences on the system.

*. Moreover, a number of the Guidelines themselves reflect the

impact of mandatory minimum sentences that pre-dated the

Guidelines.

G-20
RetoIutluD No, 6

Mandatory Criminal Sentences

Submiued by the

Chief Diitrlct Jodgei of the Ninifa Circuit

WHEREAS, over the past wveral years Congress has enacted legislation requiring the court

to impose mandatory prison sentences for various offemea;

WHEREAS, the statutory provisions leave DO discretion with the trial couru, forcing the

couns in many Instances to impose sentence* which art manifestly unjust and harsh;

WHEREAS, some members of Congress are in the process of urging the Congress to

reconsider the wisdom of all mandatory minimum sentencing statues;

WHEREAS, the Chief District Judges of the Ninth Circuit look with disfavor On lUtutory

minimiui. sentences since their inflejdWity often results in too harsh a sentcne* and

detrimental circumvention of the law;

NOW, THEREFORE, BE IT RESOLVED that the Ninth Circuit Judicial Conference urge

the Judicial Conference of the United State* to lubmit a resolution to the Congress urging

the Congress to reconsider the wisdom of all mandatory minimum senienring statutes, and

to establish juch alternate Congressional policy as the Congress deems appropriate to retain

some degrte of fletlbfllty La the criminal sentencing process.

G-21
RESOLUTION

Mandatory Criminal Sentences

Submitted by the

Tenth Circuit District Judaea Association

ih* pnrr tfvtm! yenrs Congress has vuitrtod Jcpjlasisn rcqiw~n£ the

court to impose mandatory prison sentences for various offenses;

WHEREAS, the statutory provisions leave no discretion with the Dial courts, forcing the

courts in mar.y insiar.ces to impose sentences which are manifestly unjust and harsh;

WHEREriS, some members of Confess art in iht process of urging the Congress to

reconsider iht wisdom of all mandatory minimum sentencing siamies;

WHERE4S, the Tenth Circuii Judicial Conference looks wuh disfavor on sramtory

minimum sentences since their inflexibiliiy often result in too harsh a sentence and

derrimenial circumvention of the law;

NOW, THEREFORE, BE IT RESOLVED, that the Tenth Circuit District Judges

Association ur%cs the Judicial Conference of the Uniied States to siibmii a rtsoluzion to the

Congress urging the Congress to revisit and reconsider t\xt wisdom of all mandatory minimum

tt^twndng ttanitASl end to establish such alternative *oi\p%±±lunul jwlky US the Congress

deems appropriate to retain some degree offUiibiluy in the criminal sinjencing process.

G-22
RESOLUTION

MANDATORY MINIMUM SENTENCES

The Judicial Conference of the United States is required,

pursuant to 28 U.S.C, § 994 (o) , to report on the operation of the

sentencing guidelines and otherwise assess the work of the

Sentencing Commission. As part of this process, the Judicial

Conference, through its Committee on Criminal Law and Probation

Administration, has asked each circuit court to comment on the

impact of mandatory minimum sentences on the functioning of the

sentencing guidelines.

We observe that mandatory minimums foster disparate

sentences and, in doing so, impede the principal objective of

guideline sentencing, which is the elimination of unwarranted

sentencing disparity.

BE IT THEREFORE, RESOLVED, this 26th day of May, 1991, that

the Eleventh Circuit Judicial Council urges Congress to

reconsider the suitability of mandatory minimum sentences.

G-23
RESOLUTION

MANDATORY MINIMUM CRIMINAL SENTENCES

Submitted by the

Judicial Council of the District of Columbia Circuit

WHEREAS, over the past several years Congress has enacted a significant number

of sentencing provisions that require courts to impose mandatory prison sentences for

various offenses; and

WHEREAS, these statutory provisions leave no discretion with the trial courts,

forcing the courts in many instances to impose very long sentences, not subject to parole,

which are manifestly unjust; and

WHEREAS, several members of the United States Sentencing Commission,

including its Chairman, as well as some members of Congress, have noted that mandatory

minimum sentencing laws are inconsistent with the scheme of guideline sentencing enacted

by Congress in 1984 and impair the efforts of the Sentencing Commission to fashion

sentencing guidelines in accordance with the letter and spirit of the Sentencing Reform

Act; and

WHEREAS, sentences for serious offenses now subject to mandatory minimum

sentences would be more appropriately governed by guidelines set at high levels pursuant

to Congressional direction, since the Sentencing Reform Act permits some flexibility in

extraordinary situations that do not fall within the normal cases defined in the applicable

guidelines; and

WHEREAS, the Judicial Council of the District of Columbia Circuit looks with

disfavor on statutory mandatory minimum sentences for the above-stated reasons;

NOW, THEREFORE, BE IT RESOLVED, that the Judicial Council of the District

of Columbia Circuit fully supports the resolution of the Judicial Conference of the United

States, adopted at its March 1990 meeting, to urge Congress to reconsider the wisdom of

all mandatory minimum sentencing statutes.

G-24
Appendix H

Brief Review of the Case Law

Relating to Mandatory Minimum Sentences

^ ^ minimU m SemenC r

 hBVe generate d eXtenSive ' albe " lar^y ""successful litigation,

especially ,» recent years as Congress has increased the severity of mandatory penalties fc! d Le

^ ^ r g e '

 albe " lar^y ""successful litigation,

especially ,» recent years as Congress has increased the severity of mandatory penalties fc! drug

and firearm offenses. Among the principal challenges to this type of sentencLegislation have

been content,TM that it offends the eighth amendment and the due process clause of the fifth

T T

 Cr 'mma l d tndant S h

- » hll d d

p s clause of the fifth

on TauTn 1 t , •»» challenged mandatory minimum sentencing schemes

on equal protectTM, double jeopardy, and separation of powers grounds. This survey of the

challenges to mandatory minimums is not intended to be exhaustive, but is illustrative of the most

frequently raised objections.

Many courts have expressed their unhappiness with the harsh results that mandatory minimums are

perceived to work in particular cases. For example, in a recent Second Circuit case, the defendant

was faced with a mandatory minimum sentence of five years for growing marijuana plants, although

his otherwise applicable guideline range was 15 to 21 months.1 In Madkour. the defendant did

not challenge the constitutionality of his sentence, but at sentencing the district court commented:

This type of statute [§841(b)(l)(B)(vii)] does not render justice. This type of statute

denies the judges of this court, and of all courts, the right to bring their conscience,

experience, discretion, and sense of what is just into the sentencing procedure, and

it, in effect, makes a judge a computer, automatically imposing sentences without

regard to what is right and just. It violates the rights of the judiciary and of the

defendants, and jeopardizes the judicial system. In effect, what it does is it gives not

only Congress, but also the prosecutor, the right to do the sentencing, which I

believe is unconstitutional. Unfortunately, the higher courts have ruled it to be

constitutional This case graphically illustrates the failure of the justice system

... . But for the mandatory sentence, I would have sentenced defendant to the

(guideline) minimum of 15 months.2

In affirming the sentence on appeal, the court of appeals stated:

The irony of a mandated sentence, in the face of our long tradition that trumpets the

importance of judicial discretion in sentencing, is not lost on us. The district judge

United States v. Madkour, 930 F.2d 234 (2d Cir. 1991). The guidelines provide, however, that if a statutory

minimum sentence is greater than the maximum of the otherwise applicable guideline range, the mandatory minimum shall

be the guidelines sentence. U.S.S.G. §5Gl.l(b).

2

Id. at 236.

H-l
was troubled by the harsh sentence that he was compelled to impose on Madkour,

following a process that, in his words, "makes a judge a computer, automatically

imposing sentences without regard to what is right and just." We too are troubled,

but unfortunately, have no power to disregard the clear mandate of congress, however

ill-advised we might think it to be.3

However "ill-advised" some courts believe mandatory minimum sentences to be, constitutional

challenges to these statutes are very rarely successful. As will be seen, mandatory minimum

sentences are not per se unconstitutional. In only a few exceptional cases has a court found that

imposition of a mandatory minimum sentence, as applied in the particular case, would violate a

defendant's rights.

EIGHTH AMENDMENT

In its most recent term, the United States Supreme Court had occasion to address and rejected an

Eighth Amendment challenge to a mandatory minimum term of life imprisonment (without parole)

under Michigan law for a first offense simple possession of more than 650 grams of cocaine.

Before discussing this case and its implications for Eighth Amendment challenges to mandatory

sentencing statutes, it is useful to describe the pre-Harmelin evolution of jurisprudence in this area.

In Weems v. United States,5 the Supreme Court established that in non-capital cases the eighth

amendment prohibition against cruel and unusual punishment could be violated if the punishment

was disproportionate to the crime.6 In that case, Weems was convicted of falsifying a public

document with the intent "to deceive and defraud the United States Government of the Philippine

Islands . . . .". As a result of this conviction Weems was sentenced to:

confinement in a penal institution for twelve years and one day, a chain at the ankle

and wrist. .. hard and painful labor, no assistance from friend or relative, no marital

authority or parental rights or rights of property, no participation even in the family

council. These parts of his penalty endure for the term of imprisonment. From other

parts there is no intermission .. . He is forever kept under the shadow of his crime,

forever kept within voice and view of the criminal magistrate, not being able to

3

Id. at 239-40.

4

See Harmelin v. United States, U.S. , 111 S. Ct. 2680 (1991).

5

217 U.S. 349 (1910).

6But see Harmelin v. Michigan, supra note 4 and text discussion infra, pp. 7-10.

7

217 U.S. at 357.

H-2
change his domicil without giving notice to the "authority immediately in charge of

his surveillance," and without permission in writing.8

Tracing the history of the "cruel and unusual" clause from its origins in the English Bill of Rights

in 1688, the court concluded that while the phrase may have originally been intended to prohibit

the worst excesses of the Stuart monarchy, it has not been read so narrowly by the United States

courts. The court relied in part on O'Neil v. Vermont,9 in which Justice Field (dissenting)

expressed the opinion (joined by Justice Harlan and Justice Brewer) that the prohibition against

cruel and unusual punishments was directed '"against all punishments which by their excessive

length or severity are greatly disproportioned to the offenses charged.'"10 The court noted,

additionally, that in McDonald v. Commonwealth11 the court "conceded the possibility 'that

imprisonment in the State prison for a long term of years might be so disproportionate to the offense

as to constitute a cruel and unusual punishment.'"12

The Weems court then went on to compare the sentence received in the Weems case with the

possible sentences for more serious crimes (e.g., homicide and misprision of treason) and found that

many more serious crimes were not punished nearly so severely. Finding that the sentence imposed

on Weems was disproportionate to his offense, the court held that Weems' sentence violated the

eighth amendment prohibition against cruel and unusual punishment.

In more recent times, the Supreme Court has had the opportunity to consider the application of the

eighth amendment to mandatory sentencing in Rummel v. Estell14 and Solem v. Helm.15 Both

of these cases involved mandatory life sentences for repeat offenders; the court upheld the Texas

statute in Rummel and held invalid the South Dakota statute in Solem. The only significant

difference between the two was that the Texas statute allowed for parole, while South Dakota

required life imprisonment without parole.

Rummel was convicted of obtaining $120.75 through false pretenses. Because he had been

previously convicted of two felonies (an $80.00 credit card fraud and forging a check in the amount

of $28.36) he was subject to the Texas recidivist statute which mandated a sentence of life

8

Id. at 366.

9

144 U.S. 323 (1891)

10217 U.S. at 371.

11173 Mass. 322.

12217 U.S. at 368.

13217 U.S. at 382.

14445 U.S. 263 (1980).

15463 U.S. 277 (1983).

H-3
imprisonment.16

 Although the court stated that it could be argued "that for crimes concededly

classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment

in a state penitentiary, the length of the sentence actually imposed is purely a matter of legislative

prerogative,"17 it also noted that a proportionality principle would come into play in an extreme

case.18 At least in part because Rummel would be eligible for parole in 12 years, the court found

that this was not an extreme case and that the punishment was not so disproportionate as to be

prohibited by the eighth amendment.

Three years later, in Solem, the court found that the mandatory imposition of a life sentence without

parole upon a seventh conviction of a relatively minor felony offense was an extreme case violating

the proscription against cruel and unusual punishment.19 In so deciding, the court clarified the

standard of deference that the courts must give to legislative sentencing decisions, stating that:

a criminal sentence must be proportionate to the crime for which the defendant has

been convicted. Reviewing courts, of course, should grant substantial deference to

the broad authority that legislatures necessarily possess in determining the types and

limits of punishments for crimes, as well as to the discretion that trial courts possess

in sentencing convicted criminals. But no penalty is per se constitutional.

The court then set forth a three-part proportionality analysis which courts should use to consider

eighth amendment claims. First, the court should consider "the gravity of the offense and the

harshness of the penalty." Next, the court should compare the sentences imposed on other

criminals in the same jurisdiction to determine whether more serious crimes are subject to the same

or lesser penalties. Finally, the court should "compare the sentences imposed for commission

of the same crime in other jurisdictions."23 Thus, the court attempted to balance the substantial

deference to legislatures that Rummel deemed necessary24 with the court's responsibility to ensure

that fundamental rights are not violated.

16445 U.S. at 265-66.

17445 U.S. at 274.

18|d., n.ll .

19463 U.S. at 303.

^Id. at 290 (footnote omitted).

21Id. at 290-91.

^Id. at 291.

^Id. at 291-92.

"See 445 U.S. at 275 ("the basic line-drawing process .. . is pre-eminently the province of the legislature when it

makes an act criminal ....") .

H-4
Since Solem. the courts of appeals have used this same three-part analysis in deciding whether

mandatory minimum penalties are constitutional on their face and as applied.25 Employing the

Solem analysis, the courts have made short shrift of arguments that mandatory minimum penalties

are facially invalid.26

However, because no penalty is ger se constitutional,27 the courts have had to determine whether

the penalty as applied in a particular case is so disproportionate to the offense as to constitute cruel

and unusual punishment. Most often the answer is no.28

In rare cases, however, a district court has refused to impose an applicable mandatory minimum on

the ground that the sentence would violate the eighth amendment. For example, the mandatory

minimum penalties were not applied in United States v. Martinez. CR-89-432-AAM, (E.D.Wash.

November 8, 1990), because the court found, using the Solem analysis, that the mandatory penalties

were disproportionate to the offense.

In Martinez, the defendant was facing a mandatory minimum sentence of 40 years: five years for

possession with intent to deliver over 500 grams of cocaine; five years for the use of a 9 millimeter

semiautomatic pistol during a drug felony; and 30 years for the use of a machine gun during a drug

felony. The guns were found in the defendant's home at the same time that a kilogram of cocaine

was found there. It was the defendant's first offense.

Although agreeing that the offense was a serious one, the court found that the harshness of the

penalty greatly outweighed the severity of the offense, especially when compared to sentences

imposed for other crimes in the same jurisdiction. The court further reviewed the penalties for the

25See, ££., United States v. Hoyt, 879 F.2d 505, 512-13 (9th Cir. 1989).

case law summary focuses on challenges to the mandatory minimum penalties that are provided in 18 U.S.C.

§ 924 (c) and (e) and in 21 U.S.C. § 841 (b) because it is with respect to these provisions that challenges to mandatory

minimums have most frequently arisen. See, e.g., United States v. Hatch, 925 F.2d 362, 363 (10th Cir. 1991) (five-year

mandatory consecutive penalty for use of a firearm during a bank robbery not disproportionate); United States v. Klein,

860 F.2d 1489, 1496 (9th Cir. 1988) ("The mandatory minimum sentences in 21 U.S.C. § 841(b)(l)(B) .. . clearly reflect

Congress' conclusion that possession of a sizable quantity of one of these 'controlled substances' with the intent to

distribute is a grave offense.") (emphasis in the original); and United States v. Holmes, 838 F.2d 1175, 1178-79 (11th

Cir., cert, denied, 486 U.S. 1058 (1988)) (Under Solem, the penalties in 21 U.S.C. § 841 are not disproportionate to the

offense.).

^See Solem, 463 U.S. at 290.

28See, ££., United States v. Gonzalez, 922 F.2d 1044, 1053 (2d Cir. 1991) ("A sentence of life without parole for a

drug dealer and killer, even a first-time offender, is not so disproportionate to the offense that it shocks the public's

conscience."); United States v. Dumas, 921 F.2d 650, 653 (6lh Cir. 1990), cert, denied. 111 S. Ct. 2034 (1991) (a

sentence of six years for two felonies, one of which involved a firearm, was not cruel and unusual punishment); and United

States v. Mendes, 912 F.2d 434, 439 (10th Cir. 1990) (ten-year mandatory minimum sentence for defendant who

possessed 800 grams of 92% pure cocaine and 124 grams of 47% pure heroin and has a prior felony drug conviction is

not disproportionate to his offense).

H-5
same offense in other jurisdictions (in this case Washington state) and found that the penalties

called for in this case were far more severe than what would be required in the state court. For

example, state law provided an enhancement of up to 12 months imprisonment for the use of any

firearm in connection with a drug transaction; the federal statute required a minimum of 35 years.

In its analysis, the court also compared the sentence required for Martinez with other sentences that

had been imposed in similar cases in that district. The court found that in the five recent cases that

it used for comparison, each involving drug distribution and firearms, the sentences ranged from 15

months to 12 years.29 The court pointed out that an important difference (perhaps the most

significant difference) between those cases and the present case was the fact that in the other cases

the government had chosen not to charge the firearm violations which would have carried substantial

sentencing enhancements. The court concluded that the eighth amendment does not permit this

type of sentencing disparity, and sentenced the defendant to a total of 10 years imprisonment.

With Rummel and Solem as guideposts, most American courts have upheld mandatory minimum

sentences when presented with eighth amendment challenges to these statutes. The Supreme Court

of Canada, however, has ruled that a mandatory minimum sentence of seven years imprisonment for

the importation of narcotics constituted cruel and unusual punishment in violation of section 12 of

the Canadian Charter of Rights and Freedoms.30 The mandatory minimum sentencing provision

was held to be invalid on its face, even though the court seemed to agree that seven years was not

excessive in the case at hand.31

The Canadian proscription against cruel and unusual punishment, like the American provision, was

adopted from the English Bill of Rights.32 Although the court found reference to American law

on the subject not entirely relevant because of the many differences between the American

Constitution and the Canadian Charter of Rights and Freedoms, the court did find the Solem threepart analysis useful.

Ultimately, the court was persuaded by the fact that the statute required a minimum of seven years

imprisonment without regard to the amount of drugs being imported or to any individual

characteristics of the offender. According to Justice Lamer, the Canadian mandatory minimum

sentence "inserts into the system a reluctance to convict and thus results in acquittals for picayune

29The case in which the 12-year sentence was imposed involved an extensive, sophisticated drug ring which existed

over a period of three years, and there was evidence that the firearms involved had been fired during the course of the

conspiracy. In the present case the guns were present in the defendant's home, but there was no evidence that the guns

had been used.

^See Smith v. The Queen, 34 C.C.C. (3d) 97 (1987).

31Id. at 146.

32Id. at 129.

33Id. at 140-41.

H-6
reasons of accused who do not deserve a seven-year sentence, and it gives the Crown an unfair

advantage in plea bargaining as an accused will be more likely to plead guilty to a lesser or

included offence."34

The Solem analysis has been recently called into question by the latest Supreme Court decision

considering the application of the eighth amendment in a non-capital, mandatory sentence case,

Harmelin v. Michigan.

 5 The petitioner in Harmelin was convicted under Michigan state law, of

simple possession36 of more than 650 grams of cocaine and was sentenced to a mandatory term

of life in prison without possibility of parole. It was his first offense. The Supreme Court (in a 5-4

plurality decision) rejected Harmelin's claim that this sentence violated his eighth amendment rights

in that it was disproportionate to his crime and denied him individualized sentencing.

Justices Scalia, Rehnquist, Kennedy, O'Connor, and Souter agreed that the requirement of

individualized sentencing in capital cases does not extend to cases in which the penalty is life

without parole. As to the proportionality argument, however, there was no majority. Justice Scalia,

joined by Chief Justice Rehnquist, concluded that the eighth amendment does not require a

proportionality analysis. After a review of English history leading to the adoption of the prohibition

against cruel and unusual punishment in the English Declaration of Rights of 1689, and of

American history before and after the adoption of the Bill of Rights, Justice Scalia reasoned that

there was no support for the idea that the eighth amendment guarantee protected against

disproportionate punishments.

According to Justice Scalia, the cruel and unusual clause in the English Declaration of Rights

prohibited only those punishments that were both cruel and not provided for by law. In other words,

the provision forbade courts from imposing punishments which were not provided for by the

legislature or familiar in the common law; "unusual," Justice Scalia found, was synonymous with

illegal.37

Justice Scalia did not ascribe this meaning to the word "unusual" in the eighth amendment, however.

Rather, he concluded that when this language was adopted in the United States Constitution, it was

not intended to have the same meaning.38 Since there were no common law punishments in the

federal system, the provision was meant by the framers of the Constitution to be a check on the

legislature rather than on judges. "Unusual" carries its dictionary meaning of "'such as [does not]

. at 145.

supra note 4.

3<sThe term "simple possession" is used to distinguish cases involving possession with intent to distribute.

37See 111 S.Ct. at 2688 (1991).

38See id. at 2691.

H-7
occur in ordinary practice,'39

 "such as is [not] in common use,' Webster's 2d International.

Thus, Justice Scalia concluded, the eighth amendment prohibits only "particular forms or 'modes'

of punishment - specifically, cruel methods of punishment that are not regularly or customarily

employed."41

Having settled on the meaning of "cruel and unusual," Justice Scalia proceeded to the question of

whether the

'cruelty and unusualness' are to be determined not solely with reference to the

punishment at issue ('Is life imprisonment a cruel and unusual punishment?') but

with reference to the crime for which it is imposed as well ('Is life imprisonment

cruel and unusual punishment for possession of unlawful drugs?').

Justice Scalia concluded that the answer to this question is no. If the Framers had intended that

the eighth amendment be read as requiring that punishments be proportionate to their crimes,

Justice Scalia reasoned, they would have said so specifically, not with oblique references to "cruel

and unusual" punishments. Finding that a proportionality analysis is not required by the eighth

amendment, Justice Scalia and Chief Justice Rehnquist voted to overturn the Solem case.

Justices O'Connor and Souter joined in Justice Kennedy's opinion disagreeing with Justice Scalia's

conclusion regarding proportionality. While not taking sides in the historical argument between

Justice Scalia and the dissenters, Justice Kennedy concluded that stare decisis requires "adherence

to the narrow proportionality principle that has existed in our Eighth Amendment jurisprudence for

80 years."43 Justice Kennedy determined, however, that the proportionality test set forth in Solem

should be interpreted more narrowly than it has been.

Justice Kennedy identified four principles which, he reasoned, "give content to the uses and limits

of proportionality review."44 These principles are: (1) 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"; (2) that the eighth amendment does not mandate adoption of

^Webster's 1828 edition.

^fcL at 2691.

41Id. at 2691. Justice Scalia appears to be of the view that the cruel and unusual clause must be read in the

conjunctive, although previously it has been typically interpreted to prohibit punishments that were either cruel or unusual.

In other words, he would not find any constitutional infirmity in a punishment, no matter how cruel, if it were commonly

employed.

42111 S. Ct. at 2691.

43111 S. Ct. at 2702.

"Id. at 2703.

H-8
any one penological theory; (3) that 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; and (4) that proportionality review by federal courts should be informed by "objective

factors to the maximum possible extent," and the most prominent objective factor is the type of

punishment imposed.45 These four principles "inform the final one: 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."46

In application of the Solem three-part test, however, Justice Kennedy parted company with the

dissent (especially Justice White, who authored the Solem opinion). Justice Kennedy found that the

Solem test is not a "rigid three-part test."47 Agreeing with Solem that "no one factor will be

dispositive in a given case," Justice Kennedy nevertheless concluded that "one factor may be

sufficient to determine the constitutionality of a particular sentence."48 Solem, he wrote, "is best

understood as holding that comparative analysis within and between jurisdictions is not always

relevant to proportionality review." "[I]ntra- and inter-jurisdictional analyses are appropriate

only in the rare case in which a threshold comparison of the crime committed and the sentence

imposed leads to an inference of gross disproportionality."50 "The proper role for comparative

analysis of sentences, then, is to validate an initial judgment that a sentence is grossly

disproportionate to a crime. 1

Justice White, in his dissent, took issue both with Justice Scalia's interpretation of history and with

Justice Kennedy's narrow reading of the Solem test. Justice White, with whom Justices

Blackmun and Stevens joined,53 argued that Justice Kennedy's reading of the Solem test reduces

45!d.

"Id.

47id.

"H.

49ld.

at

at

at

2705.

2705.

2707.

5 1 Id.

52See id. at 2708.

53Justice Marshall wrote separately, saying that he agreed with Justice White's dissenting opinion, "except insofar as

it asserts that the Eighth Amendment's Cruel and Unusual Punishments Clause does not proscribe the death penalty."

I l l S. Ct. at 2719.

Justice Stevens also wrote separately, joined by Justice Blackmun, asserting that a sentence of life imprisonment

without parole "does not even purport to serve a rehabilitative function, [and so] the sentence must rest on a rational

determination that the punished 'criminal conduct is so atrocious that society's interest in deterrence and retribution wholly

H-9
the test from three factors to one, asserting that "Justice Kennedy's abandonment of the second and

third factors set forth in Solem makes any attempt at an objective proportionality analysis futile.

The first prong of Solem requires that a court consider both the gravity of the offense and the

severity of the punishment. Under the first prong:

A court is not expected to consider the interaction of these two elements and

determine whether 'the sentence imposed was grossly excessive punishment of the

crime committed.' ... . Were a court to attempt such an assessment, it would have

no basis for its determination that a sentence was — or was not — disproportionate,

other than the 'subjective views of individual [judges],' . . . which is the very sort of

analysis our eighth amendment jurisprudence has shunned.

Analyzing the sentence imposed on the defendant in the case, Justice White concluded the

punishment is cruel and unusual.

Thus, Harmelin does not overrule Solem. nor is it clear that there is a majority that would read the

test as narrowly as Justice Kennedy has. Pending further pronouncements from the Supreme Court,

however, courts of appeals will undoubtedly be applying the Solem test more narrowly in the future.

DUE PROCESS

Due process challenges to mandatory minimum sentences take different forms. Most often

defendants assert that mandatory minimum penalties deprive them of the right to individualized

sentencing. Other common challenges include the argument that mandatory sentences transfer

sentencing discretion from the court to the prosecutor, thus violating the separation of powers

doctrine.

It is well settled that in non-capital cases defendants do not have a constitutional right to

individualized sentencing. Congress has the power to fix the sentence for a federal crime and

may control the scope of judicial discretion with respect to sentencing.^7 Consequently,

outweighs any consideration of reform or rehabilitation of the perpetrator.'" Id. at 2719 (citations omitted). Conceding

that the defendant's crime was serious, Justice Stevens nonetheless believes that "it is irrational to conclude that every

similar offender is wholly incorrigible. Id. at 2719.

^Id. at 2714.

^Id. at 2714.

56See, ejg., Harmelin v. United States, supra note 4; United States v. Dumas, supra note 28; United States v. Grinnell.

915 F.2d 667 (11th Cir. 1990); and United States v. Brownlie. 915 F.2d 527 (9th Cir. 1990).

^Mistretta v. United States. 488 U.S. 361, 364 (1989).

H-10
challenges to mandatory minimum penalties on the ground that they deny the defendant the right

to individualized sentencing have not succeeded.

Courts appear to be more troubled by the fact that mandatory minimum sentencing schemes are

perceived to transfer sentencing discretion from the courts to the prosecutors. This transfer in

authority, however, does not typically give rise to a Constitutional violation.

The Supreme Court "has long recognized that when an act violates more than one criminal statute,

the Government may prosecute under either so long as it does not discriminate against any class

of defendants." "jTjhere is no appreciable difference between the discretion a prosecutor

exercises when deciding whether to charge under one of two statutes with different elements and the

discretion he exercises when choosing one of two statutes with identical elements."60 "The

prosecutor may be influenced by the penalties available upon conviction, but this fact, standing

alone, does not give rise to a violation of the equal protection or due process clause."61

In Batchelder, the defendant was convicted of violating 18 U.S.C. § 922(h) (receipt of a firearm in

interstate commerce by a previously convicted felon), and was sentenced to the maximum term of

five years. The court of appeals reversed the sentence holding that, insofar as the substantive

elements of § 922(h) and 18 U.S.C. App. § 1202(a) are identical, the court should have sentenced

the defendant under § 1202 because that statute provides for only a two-year maximum. The

court of appeals found that the conflict between the two statutes should be resolved in the

defendant's favor, and noted that the "'prosecutor's power to select one of two statutes that are

identical except for their penalty provisions' implicated 'important constitutional protections.'"64

least one court has noted that 21 U.S.C. § 841(b)(l)(B) permits some individualization of the sentence even

though it provides for a mandatory minimum sentence. "Sentencing under this statute is individualized according to

quantity and variety of the narcotic possessed. Sentences are further individualized by judicial discretion beyond the

mandatory minimum." United States v. Klein, 860 F.2d 1489, 1501 (9th Cir. 1988). Furthermore, although it is true

that lack of a prior criminal record is not relevant when a defendant is subject to a mandatory minimum sentence, 21

U.S.C. § 841 (b) does provide for increased mandatory minimums when the defendant has been previously convicted of

a felony drug offense. See United States v. Broxton, 926 F.2d 1180 (D.C. Circuit 1991).

^United States v. Batchelder, 442 U.S. 114, 123-24 (1979) (citations omitted).

«»«. at 125.

61Id.

62442 U.S. at 116.

«Id. at 116-17.

"Id. at 117.

H-ll
The Supreme Court rejected the court of appeals' suggestion "that the statutes might impermissibly

delegate to the Executive Branch the Legislature's responsibility to fix criminal penalties." The

Court held that:

the provisions at issue plainly demarcate the range of penalties that prosecutors and

judges may seek and impose. In light of that specificity, the power that Congress has

delegated to those officials is no broader than the authority they routinely exercise

in enforcing the criminal laws. Having informed the courts, prosecutors, and

defendants of the permissible punishment alternatives available under each Title,

Congress has fulfilled its duty."66

Batchelder has not put an end, however, to the debate over the discretion vested in prosecutors by

mandatory minimum sentencing schemes. As the Supreme Court has pointed out:

There is no doubt that the breadth of discretion that our country's legal system vests

in prosecuting attorneys carries with it the potential for both individual and

institutional abuse. And broad though that discretion may be, there are undoubtedly

constitutional limits upon its exercise. Cases still arise, therefore, in which

defendants allege that the prosecutor(s) in their cases have gone beyond

constitutional limits. In those cases, courts evaluate a defendant's specific claims,

and have, on rare occasion, agreed with the defendant that the prosecutor has abused

his largely unfettered discretion to choose which charges to bring and where.

For example, in United States v. Redondo-Lemos68 the district court refused to sentence the

defendant to the mandatory minimum sentence of five years because the judge believed that

prosecutors in that district were abusing their charging discretion by arbitrarily choosing to allow

some defendants to plead guilty to lesser offenses carrying no mandatory sentence and refusing to

do so for others.69

Redondo-Lemos was arrested as he entered the United States from Mexico driving a van containing

278 kilograms of marijuana.70 Upon his arrest, Redondo-Lemos told the arresting agents

^Id. at 125.

^Id. at 126.

67Bordenkircher v. Haves, 434 U.S. 357, 365 (1978).

68754 F.Supp. 1401 (DAriz. 1990).

69754 F.Supp. at 1406, 1409.

70Id. at 1402.

H-12
everything that he knew about the offense.71

 He claimed he had been in Mexico for the weekend

and had been approached by a man named Juan (last name unknown) and asked if he wanted some

work.72 Thereupon, he said he was offered a sum of money to drive a vehicle across the border

and leave it in a shopping center parking lot; he further stated he did not know who would be

picking up the drugs on the American side of the border. The agents chose not to make a

controlled delivery to the parking lot.73

Redondo-Lemos had no prior convictions.74 He was married, had a four-year-old child, and had

worked at various jobs.75 At the time his presentence report was prepared he was earning

$300.00 per week as a truck driver.76 His liabilities exceeded his net worth by $10,000.00; his

expenses exceeded his income by $400.00 per month.77 He became involved in the offense

because he was desperate for money as bill collectors were calling him.78

The sentencing judge indicated that the scenario presented in Redondo-Lemos is quite common in

his district, and reviewed several cases with virtually identical facts.80 Sentences in these

cases ranged from three years (for 307 pounds of marijuana) to 27 months probation (for 502 pounds

of marijuana). * In fact, in one case, the defendants had led the agents on a high speed chase

before being arrested and were found to be carrying 1,149 pounds of marijuana.82 The two

defendants in that case were allowed to plead guilty to charges that did not carry a mandatory

minimum sentence and received sentences of 18 months. The judge concluded that there was

no rational distinction to be made between Redondo-Lemos and the other defendants who had come

71!d.

72ld.

-id .

74|d.

75]d.

76Id.

78Id.

-Id.

at

at

at

"See id

81Id. at

1402-03.

1403.

1402.

. at 1404-09.

1404-05.

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before him and sentenced Redondo-Lemos to 18 months imprisonment, rather than the mandatory

minimum of five years.

A similar argument was raised in United States v. Williams.85 There the defendants were a 19-

and a 20-year-old who were convicted of possession with intent to distribute and distribution of

"crack" cocaine.86 The charges carried a mandatory minimum of 10 years, and the sentencing

guideline ranges were 188-235 months for defendant Williams and 151-188 months for defendant

Patt.87 The defendants argued for a departure below the mandatory minimum on the ground "that

their Constitutional rights to due process of law were violated by the manner in which they were

singled out for federal prosecution as opposed to state prosecution . . . .' The court agreed that

the defendants' due process rights were violated and ruled that the sentences would be imposed

irrespective of the federal mandatory minimum statutes and the federal sentencing guidelines.89

Defendants Williams and Patt were arrested through the efforts of a strike force that was made up

of state, local and federal law enforcement personnel. The strike force determined which cases

would be referred to the United States Attorney's office for federal prosecution and which would be

prosecuted by the local authorities. * According to the court, if Williams and Patt had been

prosecuted by the state rather than federally, they would have been facing indeterminate sentences

of 1-15 years.

 z Under the sentencing matrix promulgated by the Utah Board of Pardons and

used by Utah district courts, defendant Williams would have served 18 months and Patt would have

served 18 or 21 months (depending on his criminal history).93

Because of the substantial difference in the sentences for the defendants resulting from the decision

to prosecute them in federal court, the court decided that the referral decision was one which

wThe court also expressed concerns over what appeared to be blatant gender bias in the application of the mandatory

minimum penalties in his district. This issue is addressed in the section of this summary that discusses equal protection

violations, infra, at p 19. Id. at 1402.

85746 F. Supp. 1076 (D. Utah 1990).

^Id. at 1077, 1079 n.3.

^jd. at 1078.

89The sentencing was then set for a date in the future. The actual sentences imposed are not contained in this or any

other reported decision. Id. at 1083.

^Id. at 1078.

91]d. at 1078-79.

92]d. at 1079.

H-14
involves liberty interests of the highest kind and that procedural due process protections are

required in that decisionmaking process.94 The court found that the strike force exercised

unfettered and unchecked discretion as to which cases to refer to which prosecuting agency, and

concluded that "[b]ecause of [the] direct impact on the defendants' potential sentences, the wide

deference typically afforded to executive branch law enforcement practices is not appropriate to the

btnke Force referral decision."90 The court expressed its concern that

Congress, through the minimum mandatory sentencing statutes and the sentencing

guidelines, has severely curtailed the discretion of the court at sentencing, but no

similar limitation has been placed on the exercise of discretion of police officers or

prosecutors This situation results in de facto sentencing by police and

prosecutors.

The defendants had suggested several impermissible grounds for which they may have been singled

out for federal prosecution: because they are black, because they are from California, or even

because somebody needed the statistic for a promotion.97 It was also suggested that the threat

of federal charges is often made to induce a defendant to enter a guilty plea in state court.98 The

court noted that this "is an evil that could easily flow from the present lack of any objective factors

or policy statement regarding what cases shall be referred to federal authorities."99 The court

analogized this case to the line of cases that has held that statutes and regulations violate due

process if they are so vague as to give police and other governmental officials too much discretion

in enforcement.100

With no articulated policy guiding the decision to refer these case for federal prosecution, the court

could not say with certainty that the decision had been made entirely on permissible grounds.101

. at 1080.

. at 1081.

. at 1082.

^Id. at 1080, n6.

98]d.

"Id.

100]d. at 1082 (citing Kolender v. Lawson, 461 U.S. 352 (1983) (loitering statute); Smith v. Goguen. 415 U.S. 566

(1974) (flag desecration statute); Marcus v. Search Warrant of Property, 367 U.S. 717 (1961) (obscenity statute); Bence

v. Breier, 501 F.2d 1185 (7th Cir. 1974), cert, denied, 419 U.S. 1121 (1975) (police discipline policy)).

101Id. at 1083.

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Consequently, it ruled that the defendants were denied their right to due process when the decision

to refer their case for federal prosecution was made.

It is apparent, then, that even though there is no per se constitutional violation in transferring the

sentencing power to the prosecutors, the courts are still engaged in a case-by-case analysis to

determine whether there has been an abuse of discretion in a particular case.

EQUAL PROTECTION

A number of defendants have also argued that the mandatory minimum drug penalties violate the

Constitution's equal protection guarantee by establishing classifications that are not rationally related

to the ends that Congress was seeking to achieve. The gist of this argument is that the mandatory

drug penalties were intended to punish "drug kingpins," but the establishment of penalties by

quantity without regard to drug purity defeats this purpose, and may in fact work in quite the

opposite way.103 For example, under the penalty provisions of 21 U.S.C. § 841 a street dealer

who possesses a large amount of a drug of very low purity would be required to receive a mandatory

minimum sentence, whereas a high-level dealer who possesses a small amount of a drug in its pure

form would not.

The courts have pointed out that this sentencing scheme is not necessarily irrational. For example,

in Savinovich the court explained that

Congress was well aware that its punishment scheme did not focus on 'the number

of doses of the drug that might be present in a given sample.* . . . Instead, Congress

chose a 'market-oriented approach to focus on those who are responsible for creating

and delivering very large quantities of drugs, including the 'managers of the retail

level traffic* selling 'substantial street quantities.' Congress clearly thought that

dealers who possessed substantial street quantities of drugs deserved severe

punishment. The classification scheme's focus on quantity is thus directly related

to Congress' desire to prevent both wholesale and retail distribution of illegal drugs.

A classification scheme, therefore, of mandatory punishments for possessors of more

than 500 grams of cocaine is not unreasonable or irrational.^^

The court in United States v. Holmes was more blunt. Faced with an identical challenge, that court

asserted, "These claims are meritless: where a statute does not discriminate on racial grounds or

102]d.

103See, ££., United States v. Mendes. 912 F.2d 434 (10th Cir. 1990); United States v. Whitehead, 849 F.2d 849 (4th

Cir., cert, denied, 488 U.S. 983 (1988); United States v. Savinovich. 845 F.2d 834 (9th Cir., cert, denied. 488 U.S. 943

(1988); and United States v. Holmes. 838 F.2d 1175 (lllh Cir., cert, denied, 486 U.S. 1058 (1988).

104845 F.2d 834, 839.

H-16
against a suspect class, Congress' judgment will be sustained in the absence of persuasive evidence

that Congress had no reasonable basis for drawing the lines that it did."105

More recently, in Chapman v. United States.106 the United States Supreme Court rejected an

equal protection challenge to including the weight of the LSD carrier medium in the weight of LSD

mixture or substance that determines whether a mandatory minimum sentence under 21 U.S.C.

§ 841 applies. The Court, with Chief Justice Rehnquist writing for a 7-2 majority, held that the

penalty scheme embodied in the Anti-Drug Abuse Act of 1986 was a rational penalty scheme

devised by Congress "to punish severely large-volume drug traffickers at any level . . . regardless

of [drug] purity."

 7 Because blotter paper makes LSD "easier to transport, store, conceal, and

sell,"; because it is a "tool of the trade for those who traffick in the drug,"; and because Congress

wanted "to avoid arguments about the accurate weight of pure drugs which might have been

extracted from blotter paper had it chosen to calibrate sentences according to that weight," it was

both rational and justifiable for Congress to set mandatory penalties based on inclusion of any

carrier medium weight.

Recently, objections have been raised in several federal district courts that the mandatory minimum

penalties for "crack" cocaine discriminate on racial grounds. Although the drug laws are racially

neutral on their face, critics of the "crack" provisions contend that the statutes have a racially

discriminatory effect. They allege that blacks are more often prosecuted and serve longer sentences

than whites because "crack" is punished more harshly than cocaine hydrochloride (powder)and

blacks are the primary users of "crack" while whites tend to prefer cocaine powder. This

differentiation between the classification of cocaine powder and "crack" cocaine, the argument goes,

is irrational and, therefore, the discriminatory effect of the legislation is unconstitutional.

In a related development, a county district judge in Minneapolis, Minnesota, recently dismissed

possession of crack charges against five defendants, holding that the Minnesota crack statute109

had a racially disparate impact and, therefore, violated the defendants' rights to equal

protection.110 The court found that the effect of the statute was clear:

105838F.2d 1175, 1177.

«» U.S. , 111 S. Ct. 1919 (1991),

107Id. at 1927.

108Id. at 1928.

""Minnesota Statute section 152.023 provides that possession of three grams of crack is punishable by up to 20 years

in prison; the state sentencing guidelines presume a term of four years for a first offender. In contrast, section 152.025

provides a maximum of five years in prison for possession of three grams of cocaine powder, and the guidelines presume

a first offender sentence of probation. An individual must possess 10 grams of cocaine powder to trigger the presumptive

four-year term.

»°See State v. Russell, Nos. 89067067, etc., (Hennepin County (Minn.) Dist. Ct., filed Dec. 27, 1990). This case

has been certified to the Minnesota Supreme Court for prompt review.

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The subject case . . . involves actions against an entire race of people who are

repeatedly charged under a statute which results in greater penalties than other

persons in possession of cocaine. This is not an isolated violation of the law but it

shows a pattern of conduct which continues to adversely affect an entire group. This

is a matter of great concern particularly when there is no real justification for the

treatment.111

The defendants in Russell produced evidence demonstrating that in 1988, 92.3 percent of all

persons convicted of possession of crack were black, while 85.1 percent of all persons convicted of

possessing cocaine powder were white.112 Even the numbers submitted by the attorney for the

county showed that between August 1989 and August 1990, there were 32 cases which involved

presumptive prison sentences for possession of at least 3 grams of cocaine base: 31 of those cases

involved black defendants and only 1 involved a white defendant.11

Having shown the disparate impact of the statute, the defendants were still required to prove that

there was no rational basis for the legislature's different treatment of "crack" and cocaine powder.

The court noted that in order for the disparate treatment to pass constitutional muster, "[t]he

classification 'must rest upon some ground of difference of having a fair and substantial relationship

to the object of the legislation, so that all persons similarly circumstanced shall be treated

alike/"114

The evidence adduced both by the defendants and the county led the court to conclude that there

is no rational basis for distinguishing between "crack" cocaine and cocaine powder. Experts for both

the defendants and the county agreed that 10 grams of "crack" is virtually the same as 10 grams of

any other pure form of cocaine. The defense expert testified that if 10 grams of 70% pure cocaine

hydrochloride is converted to "crack," the yield is seven grams. The county's expert testified that

if 10 grams of 75% pure cocaine hydrochloride is converted to cocaine base, it might yield 7.3

grams. Furthermore-, both experts testified that crack is not now a pure form of cocaine, if it ever

was. The court cited a study by the Chemical Dependency Division of the Minneapolis Department

of Human Service in which it was reported "that purity levels of crack have decreased significantly

throughout 1990 and that 42% of the crack samples tested had a purity level of less than

60%."115

ulId., slip op. at 9.

u2Id. at 6-7.

m

See Respondents' Brief p.2, State of Minnesota v. Russell, et al., C3-91-22, C7-91-203 (filed with the Minnesota

Supreme Court on March 1, 1991).

114State v. Russell, supra note 110, slip op. at 3 (sic) (citation omitted).

115Id. at 14.

H-18
While it is true that crack gets into the bloodstream, and therefor the brain, faster than snorting

cocaine powder, the county expert admitted that cocaine users have been known to liquefy the

powder form of the drug and inject it hypodermically with much the same effect as if it were

smoked.116 Thus, it was claimed, there may be little if any real difference between the two forms

of the drug in terms of effects as well.

The court concluded that there was no rational justification for the different treatment of "crack" and

cocaine powder. Consequently, the statute was ruled unconstitutional.

The Minnesota case challenging that state's legislative decision to treat "crack" differently from

cocaine powder may signal similar equal protection challenges in federal courts. Indeed, a similar

challenge was made to the federal "crack" statutes in United States v. Jesse James Galloway.117

In that case, the district court judge apparently denied defense motions alleging that the "crack"

statutes were unconstitutional. The court found that there was a rational basis for distinguishing

between "crack" cocaine and cocaine powder.118 The case is currently pending before the Fifth

Circuit Court of Appeals.

There are no reported cases of a male defendant objecting that the application of the mandatory

minimum penalty violates his due process and equal protection rights. Data analyzed by the

Sentencing Commission did indicate, however, a correlation between gender and application of

mandatory minimum sentencing provisions, with males being more likely than females to be

sentenced under such provisions.

In United States v. Redondo-Lemos, supra, the court, after reviewing several other drug cases with

similar facts, expressed the concern that:

the manner in which the mandatory statutes are being applied by the government

violates males' due process and equal protection rights, because similarly situated

female defendants are consistently permitted to plead to lesser included offenses

which do not expose them to minimum mandatory sentences.

116Id. at 15.

117Dist. Ct. No. 366-1 (S.D.Tex.).

118This information is based on telephone conversations with the Assistant United States Attorney, who handled the

case for the government.

119See Chapter 5, supra.

120754 F. Supp. at 1406.

H-19
The court discussed six cases that had been sentenced in that district within the last twelve months

and found that all but one of the male defendants had been sentenced to prison (13 out or

14).121 With the exception of one case, the female defendants in the cases surveyed received

probation or the charges against them were dropped.

Although defendants have not yet objected to the disparate treatment of men in the application of

the mandatory minimums, these challenges may become more common as defendants seek to

compile the data necessary to substantiate such charges.

DOUBLE JEOPARDY

Defendants have challenged the mandatory consecutive sentences provided for in 18 U.S.C. § 924(c)

on the ground that they violate the fifth amendment's proscription against double jeopardy. The

Supreme Court initially held that the punishment under the predecessor to that provision could not

be imposed consecutively when the defendant had been convicted of armed bank robbery because

it was not clear that Congress intended for this double punishment to occur.123 Since then,

however, the statute was amended to provide for a consecutive sentence any time a firearm is used

in "any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking

crime which provides for an enhanced punishment if committed by the use of a deadly or dangerous

weapon or device) . . . .

124

 As a result, it is now clear that Congress intends for the punishment

for a violation of 924(c) to run consecutively to the punishment imposed for an armed bank robbery.

While the Supreme Court has not had an opportunity to rule on the constitutionality of this

provision, the courts of appeals, relying on the Supreme Court's holding in Albernaz v. United

States. have rejected defendants' double jeopardy challenges to consecutive sentences for

violations of 18 U.S.C. §§ 2113 and 924(c).126

121See id. at 1406-09. The one male who did not go to prison received probation in exchange for his cooperation.

122Id. In the one case in which a female received a prison sentence, the female, Laura Lorena Ortiz-Villareal,

negotiated the sale of several kilos of cocaine with undercover agents. She and two other female defendants delivered one

kilo of cocaine to the agents and were arrested. The males were arrested when they arrived at the scene to meet the

women. Charges were dropped against a fourth woman and one of the men. The remaining male defendant was sentenced

to 240 months. Ortiz-Villareal was allowed to plead to a lesser-included conspiracy charge and received a sentence of

63 months. The other two women received 18 months and 181 days, respectively. See 754 F. Supp. at 1407-08.

123See Simpson v. United States. 435 U.S. 6 (1978).

l2418 U.S.C. § 924(c) (1984 amendments) (emphasis added).

125450 U.S. 333 (1981)

126See, ££., United States v Browne. 829 F.2d 760 (9th Cir.), cert denied. 485 U.S. 991 (1987); and United States

v. Shavers. 820 F.2d 1375 (4th Cir. 1987).

H-20
In Albernaz the Supreme Court was asked to decide whether consecutive sentences for convictions

of a conspiracy to import marijuana and a conspiracy to distribute marijuana violated double

jeopardy when the conspiracies involved the same shipment of marijuana. The court found that

under the test set forth in Blockburger v. United States.127 the two conspiracies did not

constitute the same offense in that each required proof of a fact which the other did not.128

Consequently, consecutive sentences could be imposed. The court did not end its analysis there,

however. Instead, it went on to hold that:

the question of what punishments are constitutionally permissible is not different

from the question of what punishments the Legislative Branch intended to be

imposed. Where Congress intended, as it did here, to impose multiple punishments,

imposition of such sentences does not violate the Constitution.129

This language has been interpreted by the courts of appeals as allowing Congress to fix mandatory

consecutive penalties for separate offenses in cases where such sentences would have otherwise

offended the double jeopardy clause. There is no constitutional bar, therefore, to the mandatory,

consecutive penalties that attach upon a violation of section 924(c).

CONCLUSION

Mandatory minimum sentencing statutes have generated substantial litigation. Although mandatory

minimum penalties have been held not to be facially unconstitutional, the courts continue to

evaluate "as applied" constitutional challenges on a case-by-case basis. Few such challenges have

ultimately been accepted by federal appellate courts, however. Recent allegations of racial and

gender discrimination vis-a-vis the application of mandatory minimum sentencing provisions are just

beginning to work their way through the federal court system.

127284 U.S. 299 (1932)

128450 U.S. at 339.

129Id. at 344 (footnote omitted). Justices Stewart, Marshall, and Stevens concurred in the judgment in Albernaz, but

were critical of this part of the court's opinion. In their view:

[n]o matter how clearly it spoke, Congress could not constitutionally provide for cumulative punishments

unless each statutory offense required proof of a fact that the other did not, under the criterion of

Blockburger v. United States, 284 U.S. 299.

Id- at 345 (Stewart, J., concurring).

H-21

Appendix I

Individual Responses from the Twelve Site Interviews

A. Judges' Views on the Impact of Mandatory Minimums

RESP

#

02-001

02-002

03-003

03-004

03-005

03-006

03-007

03-008

03-009

04-010

04-011

04-012

04-013

Favorable

Ignore Prior Record

Unfavorable

Prison Overcrowding

Worse than Guidelines

Prison Overcrowding

More Trials

Longer Trials

More Trials

Prison Overcrowding

Increase Recidivism

Too Harsh

Increase Recidivism

Eliminate Discretion

More Trials

Eliminate Discretion

Too Harsh for Minimal

Participants "

More Trials

More Trials

Too Harsh

Prison Overcrowding

Eliminate Discretion

Too Harsh

More Trials

More Trials

Longer Trials

Too Harsh

Force Pleas Unfairly

Neutral

Hard to Distinguish

Hard to Distinguish

Hard to Distinguish

Encourage Pleas

Hard to Distinguish

Unsure of Deterrence

1-1
RESP

#

04-014

04-015

04-016

05-017

05-018

05-019

05-020

06-021

06-022

06-023

07-024

07-025

07-026

08-027

08-028

09-029

09-030

09-031

10-032

Favorable

Generally Appropriate

Encourage Cooperation

Appropriate for Drugs

Unfavorable

More Trials

Eliminate Discretion

Eliminate Discretion

Unfairly Consider Prior Record

Unfairly Consider Prior Record

More Trials

Too Harsh

Do Not Eliminate Disparity

Eliminate Discretion

Too Harsh

Eliminate Discretion

Prison Overcrowding

Increase Recidivism

More Trials

Too Harsh for Minimal

Participants

Too Harsh

Too Harsh

Prison Overcrowding

Eliminate Discretion

Too Harsh for Minimal

Participants

Increase Recidivism

Eliminate Discretion

Eliminate Discretion

Neutral

Unsure of Deterrence

No Opinion

No Opinion

Guidelines Higher

Not Asked

Same Number Trials

More Prosecution

Prison Use Increased

Unsure If More Trials

1-2
RESP 1

# |

10-033

10-034

10-035

10-036

10-037

10-038

11-039

11-040

11-041

11-042

11-043

12-044

12-045

12-046

12-047

12-048

13-049

Favorable

Promote Deterrence

Promote Respect for Law

Promote Deterrence

Easy to Sentence

Appropriate for Weapons

Unfavorable

Too Harsh for Minimal

Participants

Eliminate Discretion

Too Harsh

Eliminate Discretion

Unnecessary with Guidelines

Unnecessary with Guidelines

Eliminate Discretion

Too Harsh

Racially Discriminatory

Prison Overcrowding

No Deterrence

Increase Disparity

Too Harsh for Minimal

Participants

Generally Inappropriate

Too Harsh

More Trials

Eliminate Discretion

Too Harsh

Eliminate Discretion

Unnecessary with Guidelines

Too Harsh

Neutral

Guidelines Higher

Hard to Distinguish

Guidelines Higher

More Prosecutions

Public Wants

Same Number Trials

Same Number Trials

1-3
B. ASSISTANT U.S. ATTORNEYS' VIEWS ON THE IMPACT OF MANDATORY MINIMUMS

RESP # 1 Favorable

02-050

02-051

02-052

02-053

02-054

03-055

03-056

03-057

03-058

03-059

03-060

03-061

03-062

03-063

03-064

04-065

04-066

04-067

04-068

04-069

Reduce Disparity

Reduce Disparity

Encourage Cooperation

Encourage Pleas

Reduce Disparity

Protect Public

Encourage Pleas

Encourage Cooperation

Longer Sentences

Fewer Appeals

Generally Appropriate

Raise Guideline Levels

Encourage Cooperation

Fewer Appeals

Generally Appropriate

Incapacitate Serious Offender

Reduce Disparity

Encourage Pleas

More Trials

Unfavorable

More Trials

Eliminate Discretion

More Trials

More Trials

Encourage Manipulation

Prison Overcrowding

More Trials

Racially Discriminatory

Too Harsh for First Offenders

More Trials

More Trials

More Trials

More Trials

More Trials

Encourage Manipulation

Neutral

Guidelines Lower

No Opinion

More Prosecutions

Hard to Distinguish

Guidelines Broader

Hard to Distinguish

Hard to Distinguish

Hard to Distinguish

Guidelines Higher

Guidelines Lower

No Opinion

Not Asked

1-4
RESP#

04-070

04-071

04-072

05-073

05-074

05-075

05-076

05-077

05-078

06-079

06-080

06-081

06-082

06-083

07-084

07-085

07-086

07-087

07-088

07-089

07-090

07-091

08-092

08-093

09-094

09-095

Favorable

Encourage Cooperation

Encourage Pleas

Promote Certainty

Generally Appropriate

Promote Deterrence

More Prosecutions

Generally Appropriate

Promote Deterrence

Encourage Cooperation

Encourage Cooperation

Encourage Pleas

Encourage Cooperation

Generally Appropriate

Generally Appropriate

Reduce Disparity

Generally Appropriate

Reduce Disparity

Generally Appropriate

Unfavorable

More Trials

Increase Disparity

More Trials

Encourage Manipulation

Prison Overcrowding

More Trials

Reduce Prosecutorial Discretion

Too Harsh for Minimal Participants

Increase Recidivism

More Trials

Too Harsh for Minimal Participants

Neutral

Same Number Trials

Guidelines Higher

Guidelines Lower

Guidelines Higher

Guidelines Higher

Guidelines Higher

Same Number Trials

Guidelines Higher

No Opinion

Same Number Trials

1-5
RESP#

09-096

09-097

09-098

09-099

10-100

10-101

10-102

10-103

10-104

11-105

11-106

11-107

11-108

11-109

11-110

11-111

12-112

12-113

12-114

12-115

12-116

12-117

12-118

Favorable

Generally Appropriate

Generally Appropriate

Generally Appropriate

Reduce Disparity

Promote Certainty

Generally Appropriate

Protect Public

Generally Appropriate

Promote Deterrence

Reduce Disparity

Generally Appropriate

Promote Deterrence

Promote Deterrence

Generally Appropriate

Unfavorable

More Trials

Too Harsh for Marijuana Plants

More Trials

More Trials

Unnecessary with Guidelines

More Trials

More Trials

Too Harsh for Minimal Participants

More Trials

More Trials

Difficult Plea Process

More Trials

Increase Appeals

Too Harsh for Minimal Participants

Inconsistent with Guidelines

Reduce Prosecutoriai Discretion

Encourage Manipulation

Neutral

Hard to Distinguish

Guidelines Higher

Same Number Trials

Prison Use Increased

Same Number Trials

Guidelines Lower

Guidelines Higher

Not Asked

1-6
RESP #

13-119

13-120

13-121

13-122

13-123

Favorable

Generally Appropriate

Reduce Disparity

Unfavorable

More Trials

More Trials

Neutral

Same Number Trials

Longer Sentences

No Opinion

1-7
c.

FEDERAL DEFENDERS' VIEWS ON THE IMPACT OF MANDATORY MINIMUMS

RESP#

03-124

03-125

04-126

04-127

04-128

04-129

06-130

06-131

07-132

07-133

09-134

09-135

09-136

11-137

11-138

Favorable

Encourage Cooperation

Unfavorable

Too Harsh

More Trials

Too Harsh for First Offenders

More Trials

Create Disparity

Create Unfairness

Eliminate Discretion

Create Disparity

More Trials

Too Harsh for Minimal Participants

Too Harsh for Weapons

Eliminate Discretion

Generally Inappropriate

Prison Overcrowding

Eliminate Discretion

Too Harsh

Eliminate Discretion

More Trials

Prison Overcrowding

Too Harsh for First Offenders

Too Harsh for Minimal Participants

Unnecessary With Guidelines

Prison Overcrowding

More Trials

Encourage Manipulation

Too Harsh

Too Harsh

Difficult Plea Process

Prison Overcrowding

Generally Inappropriate

Too Harsh

Prison Overcrowding

Neutral

Hard to Distinguish

Hard to Distinguish

Hard to Distinguish

Hard to Distinguish

1-8
RESP # J( Favorable

11-139 |

11-140

Unfavorable

More Trials

Eliminate Discretion

Too Harsh for First Offenders

Engender Public Disrespect

Neutral

Hard to Distinguish

Hard to Distinguish

1-9
D. PROBATION OFFICERS' VIEWS ON THE IMPACT OF MANDATORY MINIMUMS

RESP # Favorable

02-179

02-180

02-181

02-182

03-183

03-184

03-185

03-186

03-187

03-188

03-189

04-190

04-191

04-192

04-193

04-194

04-195

04-196

04-197

Promote Deterrence

Generally Appropriate

Protect Public

Unfavorable

Too Harsh

Eliminate Discretion

Too Harsh for Minimal Participants

No Deterrence

Too Harsh for Minimal Participants

Prison Overcrowding

Encourage Manipulation

Prison Overcrowding

Encourage Manipulation

Too Harsh for Drugs

Encourage Manipulation

Prison Overcrowding

Encourage Manipulation

Encourage Manipulation

Create Disparity

Prison Overcrowding

Create Disparity

Unnecessary with Guidelines

More Trials

Prison Overcrowding

Too Harsh

Eliminate Discretion

More Trials

Too Harsh for Drugs

More Trials

Neutral

Not Asked

Hard to Distinguish

Guidelines Higher

No Probation

Not Asked

Guidelines Higher

Hard to Distinguish

Guidelines Higher

Unsure of Deterrence

No Opinion

Hard to Distinguish

1-10
RESP # | Favorable

05-198

05-199

05-200

05-201

05-202

06-203

06-204

06-205

06-206

07-207

07-208

07-209

07-210

07-211

08-212

08-213

08-214

08-215

08-216

08-217

09-218

09-219

09-220

09-221

Encourage Cooperation

Promote Certainty

Reduce Disparity

Reduce Disparity

Unfavorable

Too Harsh for Drugs

Unnecessary with Guidelines

Too Harsh for Young Offenders

Create Disparity

Unnecessary with Guidelines

Too Harsh

Eliminate Discretion

Unnecessary with Guidelines

Too Harsh

Too Harsh

Too Harsh

Create Disparity

Eliminate Discretion

Unnecessary with Guidelines

Difficult Plea Process

Prison Overcrowding

Prison Overcrowding

Unnecessary with Guidelines

Encourage Manipulation

No Deterrence

Encourage Manipulation

Prison Overcrowding

Increase Prison Violence

Increase Welfare Costs

Prison Overcrowding

Eliminate Discretion

Prison Overcrowding

Eliminate Discretion

Neutral

Hard to Distinguish

Hard to Distinguish

Guidelines Higher

No Opinion

Eliminate Discretion

Ml
RESP#

09-222

09-223

10-224

10-225

10-226

10-227

10-228

10-229

11-230

11-231

11-232

11-233

12-234

12-235

12-236

12-237

12-238

13-239

13-240

13-241

13-242

13-243

13-244

Favorable

Promote Deterrence

Promote Deterrence

Unfavorable

Eliminate Discretion

Too Harsh for Young Offenders

Racially Discriminatory

Too Harsh for Drugs

Prison Overcrowding

Eliminate Discretion

Too Harsh

Eliminate Discretion

Create Disparity

Create Disparity

Too Harsh for Drugs

Unnecessary with Guidelines

Eliminate Discretion

Prison Overcrowding

Eliminate Discretion

Unnecessary with Guidelines

Create Disparity

Prison Overcrowding

More Trials

Eliminate Discretion

Neutral

Longer Sentences

Older Offender Population

Longer Sentences

No Opinion

No Opinion

Hard to Distinguish

Encourage Pleas

Hard to Distinguish

Older Offender Population

No Opinion

Hard to Distinguish

1-12
RESP # 1 Favorable

13-245

13-246 Generally Appropriate

Unfavorable Neutral

No Opinion

1-13

Appendix J

General and Specific Directives to the

United States Sentencing Commission

A. General and Specific Dire lives Enacted Subsequent to the Sentencing Reform Act

of 1984

Sexual Crimes Against Children; Amendment of Sentencing Guidelines. Pub.L. 101-

647, Title III, § 321, Nov. 29, 1990, 104 Stat. 4817, provided that: "The United States Sentencing

Commission shall amend existing guidelines for sentences involving sexual crimes against children,

including offenses contained in chapter 109A of title 18 [chapter 109A of Title 18, Crimes and

Criminal Procedure], so that more substantial penalties may be imposed if the Commission

determines current penalties are inadequate."

Sentencing Guidelines Increased Penalties in Major Bank Crimes Cases. Pub.L. 101-

647, Title XXV, § 2507, Nov. 29, 1990, 104 Stat. 4862, provided that:

"(a) Increased Penalties.-Pursuant to section 994 of title 28, United States Code,

and section 21 of the Sentencing Act of 1987 [Pub.L. 100-182, § 21], the United States

Sentencing Commission shall promulgate guidelines, or amend existing guidelines, to provide

that a defendant convicted of violating, or conspiring to violate, section 215, 656, 657, 1005,

1006, 1007, 1014, 1032, or 1344 of title 18, United States Code [sections 215, 656, 657,

1005, 1006, 1007, 1014, 1032, or 1344 of Title 18, Crimes and Criminal Procedure], or

section 1341 or 1343 [section 1341 or 1343 of Title 18] affecting a financial institution (as

defined in section 20 of title 18, United States Code) [section 20 of Title 18] shall be

assigned not less than offense level 24 under chapter 2 of the sentencing guidelines if the

defendant derives more than $1,000,000 in gross receipts from the offense.

"(b) Amendments to Sentencing Guidelines.-If the sentencing guidelines are

amended after the effective date of this section, the Sentencing Commission shall implement

the instruction set forth in subsection (a) so as to achieve a comparable result.

Sentencing Guidelines Relating to Methamphetamine Offenses. Pub.L. 101-647, Title

XXVII, § 2701, Nov. 29, 1990, 104 Stat. 4912, provided that: "The United States Sentencing

Commission is instructed to amend the existing guidelines for offenses involving smokable crystal

methamphetamine under section 401(b) of the Controlled Substances Act (21 U.S.C. § 841(b))

[section 841 (b) of Title 21, Food and Drugs] so that convictions for offenses involving smokable

crystal methamphetamine will be assigned an offense level under the guidelines which is two levels

above that which would have been assigned to the same offense involving other forms of

methamphetamine."

Special Rule for Certain Offenses Involving Children. Pub.L. 101-647, Title IV, § 401,

Nov. 29, 1990, 104 Stat 4819, amended 18 U.S.C. § 1201 by adding the following new subsection:

J-l
M(g) Special Rule for Certain Offenses Involving Children. -

"(1) To Whom Applicable.-If-

"(A) the victim of an offense under this section has not attained the age of

eighteen years; and

"(B) the offender-

"(i) has attained such age; and

"(ii) is not-

"(I) a parent;

"(II) a grandparent;

"(III) a brother;

"(IV) a sister;

"(V) an aunt;

"(VI) an uncle; or

"(VII) an individual having legal custody of the victim;

the sentence under this section for such offense shall be subject to paragraph (2) of this

subsection.

"(2) Guidelines.-The United States Sentencing Commission is directed to amended the

existing guidelines for the offense of 'kidnapping, abduction, or unlawful restraint,' by

including the following additional specific offense characteristics: If the victim was

intentionally maltreated (i.e., denied either food or medical care) to a life-threatening degree,

increase by 4 levels; if the victim was sexually exploited (i.e., abused, used involuntarily for

pornographic purposes) increase by 3 levels; if the victim was placed in the care or custody

of another person who does not have a legal right to such care or custody of the child either

in exchange for money or other consideration, increase by 3 levels; if the defendant allowed

the child to be subjected to any of the conduct specified in this section by another person,

then increase by 2 levels."

Sentencing Guidelines for Crimes Involving Federally Insured Financial Institutions.

Pub.L. 101-73, Title IX, § 961(m), Aug. 9, 1989, 103 Stat. 501, provided that:

"Pursuant to section 994 of title 28, United States Code, and section 21 of the Sentencing

Act of 1987 [Pub.L. 100-182, § 21], the United States Sentencing Commission shall promulgate

guidelines, or amend existing guidelines, to provide for a substantial period of incarceration for a

violation of, or a conspiracy to violate, section 215, 656, 657, 1005, 1006, 1007, 1014, 1341, 1343,

or 1344 of title 18, United States Code [section 215, 656, 657, 1005, 1006, 1007, 1014, 1341,

1343, or 1344 of Title 18, Crimes and Criminal Procedure], that substantially jeopardizes the safety

and soundness of a federally insured financial institution."

Major Fraud; Promulgation of Sentencing Guidelines. Pub.L. 100-700, Chapter 47,

§ 2(b), Nov. 19, 1988, 102 Stat. 4632, provided that:

"Pursuant to its authority under section 994(p) of title 28, United States Code and section

21 of the Sentencing Act of 1987 [Pub.L. 100-182, § 21], the United States Sentencing Commission

shall promulgate guidelines, or shall amend existing guidelines, to provide for appropriate penalty

enhancements, where conscious or reckless risk of serious personal injury resulting from the fraud

has occurred. The Commission shall consider the appropriateness of assigning to such a defendant

J-2
an offense level under Chapter Two of the sentencing guidelines that is at least two levels greater

than the level that would have been assigned had conscious or reckless risk of serious personal

injury not resulted from the fraud."

Penalties For Importation of Controlled Substances by Aircraft and Other Vessels;

Promulgation of Sentencing Guidelines. Section 6453 of Pub.L. 100-690 provided that:

"(a) In general.-Pursuant to its authority under section 994(p) of title 28, United States

Code, and section 21 of the Sentencing Act of 1987 [section 21 of Pub.L. 100-182], the United

States Sentencing Commission shall promulgate guidelines, or shall amend existing guidelines, to

provide that a defendant convicted of violating section 1010(a) of the Controlled Substances Import

and Export Act (21 U.S.C. 960(a)) [section 960(a) of Title 21, Food and Drugs] under circumstances

in which—

"(1) an aircraft other than a regularly scheduled commercial air carrier was used to

import the controlled substance; or

"(2) the defendant acted as a pilot, copilot, captain, navigator, flight officer, or any

other operation officer aboard any craft of vessel carrying a controlled substance,

shall be assigned an offense level under chapter 2 of the sentencing guidelines that is—

"(A) two levels greater than the level that would have been assigned had the

offense not been committed under circumstances set forth in (A) or (B) above; and

"(B) in no event less than level 26.

"(b) Effect of amendment.—If the sentencing guidelines are amended after the effective

date of this section [probably means date of enactment of this section, Nov. 18, 1988], the

Sentencing Commission shall implement the instruction set forth in subsection (a) so as to achieve

a comparable result."

Enhanced Penalties For Offenses Involving Children; Promulgation of Sentencing

Guidelines. Section 6454 of Pub.L. 100-690 provided that:

"(a) In general.—Pursuant to its authority under section 994(p) of title 28, United States

Code, and section 21 of the Sentencing Act of 1987 [section 21 of Pub.L. 100-182], the United

States Sentencing Commission shall promulgate guidelines, or shall amend existing guidelines, to

provide that a defendant convicted of violating sections 405, 405A, or 405B of the Controlled

Substances Act (21 U.S.C. 845, 845a or 845b) [sections 845, 845a, and 845b of Title 21, Food and

Drugs] involving a person under 18 years of age shall be assigned an offense level under chapter

2 of the sentencing guidelines that is—

"(1) two levels greater than the level that would have been assigned for the

underlying controlled substance offense; and

"(2) in no event less than level 26.

"(b) Effects of amendment.—If the sentencing guidelines are amended after the effective

date of this section [probably means date of enactment of this section, Nov. 18, 1988], the

Sentencing Commission shall implement the instruction set forth in subsection (a) so as to achieve

a comparable result.

"(c) Multiple enhancements.—The guidelines referred to in subsection (a), as promulgated

or amended under such subsection, shall provide that an offense that could be subject to multiple

enhancements pursuant to such subsection is subject to not more than one such enhancement.

J-3
Drug Offenses Within Federal Prisons; Promulgation of Sentencing Guidelines.

Section 6468(c) and (d) of Pub.L. 100-690 provided that:

"(c) Pursuant to its authority under section 994(p) of title 28, United States Code, and

section 21 of the Sentencing Act of 1987 [section 21 of Pub.L. 100-182], the United States

Sentencing Commission shall promulgate guidelines, or shall amend existing guidelines, to provide

that a defendant convicted of violating section 1791(a)(l) of title 18, United States Code [section

1791(a)(l) of Title 18, Crimes and Criminal Procedure], and punishable under section 1791(b)(l)

of that title [section 1791(b)(l) of Title 18] as so redesignated, shall be assigned an offense level

under chapter 2 of the sentencing guidelines that is—

"(1) two levels greater than the level that would have been assigned had the offense

not been committed in prison; and

"(2) in no event less than level 26.

"(d) If the sentencing guidelines are amended after the effective date of this section

[probably means the date of enactment of this section, Nov. 18, 1988], the Sentencing Commission

shall implement the instruction set forth in subsection (c) so as to achieve a comparable result."

Common Carrier Operation Under Influence of Alcohol or Drugs; Promulgation of

Sentencing Guidelines. Section 6482(c) of Pub.L. 100-690 provided that:

"(1) Pursuant to its authority under section 994(p) of title 28, United States Code,

and section 21 of the Sentencing Act of 1987 [section 21 of Pub.L. 100-182], the United

States Sentencing Commission shall promulgate guidelines, or shall amend existing

guidelines, to provide that—

"(A) a defendant convicted of violating section 342 of title 18, United States

Code [section 342 of Title 18, Crimes and Criminal Procedure], under circumstances

in which death results, shall be assigned an offense level under chapter 2 of the

sentencing guidelines that is not less than level 26; and

"(B) a defendant convicted of violating section 342 of title 18, United States

Code, under circumstances in which serious bodily injury results, shall be assigned

an offense level under chapter 2 of the sentencing guidelines that is not less than

level 21.

"(2) If the sentencing guidelines are amended after the effective date of this section

[probably means date of enactment of this section, Nov. 18, 1988], the Sentencing

Commission shall implement the instruction set forth in paragraph (1) so as to achieve a

comparable result."

J-4
B. General and Specific Directives Enacted in the Sentencing Reform Act of 1984

Title 28

JUDICIARY AND JUDICIAL PROCEDURE

CHAPTER 58-UNITED STATES SENTENCING COMMISSION

§ 994. Duties of the Commission

(a) The Commission, by affirmative vote of at least four members of the Commission, and

pursuant to its rules and regulations and consistent with all pertinent provisions of this title and title

18, United States Code, shall promulgate and distribute to all courts of the United States and to the

United States Probation System—

(1) guidelines, as described in this section, for use of a sentencing court in

determining the sentence to be imposed in a criminal case, including—

(A) a determination whether to impose a sentence to probation, a fine, or a

term of imprisonment;

(B) a determination as to the appropriate amount of a fine or the appropriate

length of a term of probation or a term of imprisonment;

(C) a determination whether a sentence to a term of imprisonment should

include a requirement that the defendant be placed on a term of supervised release

after imprisonment, and, if so, the appropriate length of such a term;

(D) a determination whether multiple sentences to terms of imprisonment

should be ordered to run concurrently or consecutively; and

(E) a determination under paragraphs (6) and (11) of section 3563(b) of title

18;

(2) general policy statements regarding application of the guidelines or any other

aspect of sentencing or sentence implementation that in the view of the Commission would

further the purposes set forth in section 3553 (a) (2) of title 18, United States Code, including

the appropriate use of—

(A) the sanctions set forth in sections 3554, 3555, and 3556 of title 18;

(B) the conditions of probation and supervised release set forth in sections

3563(b) and 3583(d) of title 18;

(C) the sentence modification provisions set forth in sections 3563 (c), 3564,

3573, and 3582(c) of title 18;

(D) the fine imposition provisions set forth in section 3572 of title 18;

(E) the authority granted under rule ll(e)(2) of the Federal Rules of Criminal

Procedure to accept or reject a plea agreement entered into pursuant to rule

ll(e)(l); and

(F) the temporary release provisions set forth in section 3622 of title 18, and

the prerelease custody provisions set forth in section 3624(c) of title 18; and

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(3) guidelines or general policy statements regarding the appropriate use of the

provisions for revocation of probation set forth in section 3565 of title 18, and the provisions

for modification of the term or conditions of supervised release and revocation of supervised

release set forth in section 3583(e) of title 18.

(b)(l) The Commission, in the guidelines promulgated pursuant to subsection (a)(l), shall,

for each category of offense involving each category of defendant, establish a sentencing range that

is consistent with all pertinent provisions of title 18, United States Code.

(2) If a sentence specified by the guidelines includes a term of imprisonment, the

maximum of the range established for such a term shall not exceed the minimum of that range by

more than the greater of 25 percent or 6 months, except that, if the minimum term of the range is

30 years or more, the maximum may be life imprisonment.

(c) The Commission, in establishing categories of offenses for use in the guidelines and

policy statements governing the imposition of sentences of probation, a fine, or imprisonment,

governing the imposition of other authorized sanctions, governing the size of a fine or the length of

a term of probation, imprisonment, or supervised release, and governing the conditions of probation,

supervised release, or imprisonment, shall consider whether the following matters, among others,

have any relevance to the nature, extent, place of service, or other incidents1 of an appropriate

sentence, and shall take them into account only to the extent that they do have relevance—

(1) the grade of the offense;

(2) the circumstances under which the offense was committed which mitigate or

aggravate the seriousness of the offense;

(3) the nature and degree of the harm caused by the offense, including whether it

involved property, irreplaceable property, a person, a number of persons, or a breach of

public trust;

(4) the community view of the gravity of the offense;

(5) the public concern generated by the offense;

(6) the deterrent effect a particular sentence may have on the commission of the

offense by others; and

(7) the current incidence of the offense in the community and in the Nation as a

whole.

(d) The Commission in establishing categories of defendants for use in the guidelines and

policy statements governing the imposition of sentences of probation, a fine, or imprisonment,

governing the imposition of other authorized sanctions, governing the size of a fine or the length of

a term of probation, imprisonment, or supervised release, and governing the conditions of probation,

supervised release, or imprisonment, shall consider whether the following matters, among others with

respect to a defendant, have any relevance to the nature, extent, place of service, or other

in original. Probably should be "incidence".

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incidents2

 of an appropriate sentence, and shall take them into account only to the extent that they

do have relevance—

(1) age;

(2) education;

(3) vocational skills;

(4) mental and emotional condition to the extent that such condition mitigates the

defendant's culpability or to the extent that such condition is otherwise plainly relevant;

(5) physical condition, including drug dependence;

(6) previous employment record;

(7) family ties and responsibilities;

(8) community ties;

(9) role in the offense;

(10) criminal history; and

(11) degree of dependence upon criminal activity for a livelihood.

The Commission shall assure that the guidelines and policy statements are entirely neutral as to the

race, sex, national origin, creed, and socioeconomic status of offenders.

(e) The Commission shall assure that the guidelines and policy statements, in recommending

a term of imprisonment or length of a term of imprisonment, reflect the general inappropriateness

of considering the education, vocational skills, employment record, family ties and responsibilities,

and community ties of the defendant.

(f) The Commission, in promulgating guidelines pursuant to subsection (a)(l), shall promote

the purposes set forth in section 991(b)(l), with particular attention to the requirements of

subsection 991(b)(l)(B) for providing certainty and fairness in sentencing and reducing unwarranted

sentence disparities.

(g) The Commission, in promulgating guidelines pursuant to subsection (a)(l) to meet the

purposes of sentencing as set forth in section 3553(a)(2) of title 18, United States Code, shall take

into account the nature and capacity of the penal, correctional, and other facilities and services

available, and shall make recommendations concerning any change or expansion in the nature or

capacity of such facilities and services that might become necessary as a result of the guidelines

promulgated pursuant to the provisions of this chapter. The sentencing guidelines prescribed under

this chapter shall be formulated to minimize the likelihood that the Federal prison population will

exceed the capacity of the Federal prisons, as determined by the Commission.

(h) The Commission shall assure that the guidelines specify a sentence to a term of

imprisonment at or near the maximum term authorized for categories of defendants in which the

defendant is eighteen years old or older and—

(1) has been convicted of a felony that is—

(A) a crime of violence; or

2

So in original. Probably should be "incidence".

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(B) an offense described in section 401 of the Controlled Substances Act (21

U.S.C. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances Import

and Export Act (21 U.S.C. 952(a), 955, and 959), and section 1 of the Act of

September 15, 1980 (21 U.S.C. 955a); and

(2) has previously been convicted of two or more prior felonies, each of which is—

(A) a crime of violence; or

(B) an offense described in section 401 of the Controlled Substances Act (21

U.S.C. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances Import

and Export Act (21 U.S.C. 952(a), 955, and 959), and section 1 of the Act of

September 15, 1980 (21 U.S.C. 955a).

(i) The Commission shall assure that the guidelines specify a sentence to a substantial term

of imprisonment for categories of defendants in which the defendant—

(1) has a history of two or more prior Federal, State, or local felony convictions for

offenses committed on different occasions;

(2) committed the offense as part of a pattern of criminal conduct from which he

derived a substantial portion of his income;

(3) committed the offense in furtherance of a conspiracy with three or more persons

engaging in a pattern of racketeering activity in which the defendant participated in a

managerial or supervisory capacity;

(4) committed a crime of violence that constitutes a felony while on release pending

trial, sentence, or appeal from a Federal, State, or local felony for which he was ultimately

convicted; or

(5) committed a felony that is set forth in section 401 or 1010 of the Comprehensive

Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 841 and 960), and that involved

trafficking in a substantial quantity of a controlled substance.

(j) The Commission shall insure that the guidelines reflect the general appropriateness of

imposing a sentence other than imprisonment in cases in which the defendant is a first offender who

has not been convicted of a crime of violence or an otherwise serious offense, and the general

appropriateness of imposing a term of imprisonment on a person convicted of a crime of violence

that results in serious bodily injury.

(k) The Commission shall insure that the guidelines reflect the inappropriateness of imposing

a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing

the defendant with needed educational or vocational training, medical care, or other correctional

treatment.

(1) The Commission shall insure that the guidelines promulgated pursuant to subsection

(a)(l) reflect—

(1) the appropriateness of imposing an incremental penalty for each offense in a case

in which a defendant is convicted of—

(A) multiple offenses committed in the same course of conduct that result in

the exercise of ancillary jurisdiction over one or more of the offenses; and

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(B) multiple offenses committed at different times, including those cases in

which the subsequent offense is a violation of section 3146 (penalty for failure to

appear) or is committed while the person is released pursuant to the provisions of

section 3147 (penalty for an offense committed while on release) of title 18; and

(2) the general inappropriateness of imposing consecutive terms of imprisonment for

an offense of conspiring to commit an offense or soliciting commission of an offense and for

an offense that was the sole object of the conspiracy or solicitation.

(m) The Commission shall insure that the guidelines reflect the fact that, in many cases,

current sentences do not accurately reflect the seriousness of the offense. This will require that, as

a starting point in its development of the initial sets of guidelines for particular categories of cases,

the Commission ascertain the average sentences imposed in such categories of cases prior to the

creation of the Commission, and in cases involving sentences to terms of imprisonment, the length

of such terms actually served. The Commission shall not be bound by such average sentences, and

shall independently develop a sentencing range that is consistent with the purposes of sentencing

described in section 3553 (a) (2) of Title 18, United States Code.

(n) The Commission shall assure that the guidelines reflect the general appropriateness of

imposing a lower sentence than would otherwise be imposed, including a sentenced that is lower

than that established by statute as a minimum sentence, to take into account a defendant's

substantial assistance in the investigation or prosecution of another person who has committed an

offense.

(o) The Commission periodically shall review and revise, in consideration of comments and

data coming to its attention, the guidelines promulgated pursuant to the provisions of this section.

In fulfilling its duties and in exercising its powers, the Commission shall consult with authorities

on, and individual and institutional representatives of, various aspects of the Federal criminal justice

system. The United States Probation System, the Bureau of Prisons, the Judicial Conference of the

United States, the Criminal Division of the United States Department of Justice, and a representative

of the Federal Public Defenders shall submit to the Commission any observations, comments, or

questions pertinent to the work of the Commission whenever they believe such communication would

be useful, and shall, at least annually, submit to the Commission a written report commenting on

the operation of the Commission's guidelines, suggesting changes in the guidelines that appear to

be warranted, and otherwise assessing the Commission's work.

(p) The Commission, at or after the beginning of a regular session of Congress, but not later

than the first day of May, may promulgate under subsection (a) of this section and submit to

Congress amendments to the guidelines and modifications to previously submitted amendments that

have not taken effect, including modifications to the effective dates of such amendments. Such an

amendment or modification shall be accompanied by a statement of the reasons therefor and shall

take effect on a date specified by the Commission, which shall be no earlier than 180 days after

being so submitted and no later that the first day of November of the calendar year in which the

amendment or modification is submitted, except to the extent that the effective date is revised or

the amendment is otherwise modified or disapproved by Act of Congress.

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(q) The Commission and the Bureau of Prisons shall submit to Congress an analysis and

recommendations concerning maximum utilization of resources to deal effectively with the Federal

prison population. Such report shall be based upon consideration of a variety of alternatives,

including—

(1) modernization of existing facilities;

(2) inmate classification and periodic review of such classification for use in placing

inmates in the least restrictive facility necessary to ensure adequate security; and

(3) use of existing Federal facilities, such as those currently within military

jurisdiction.

(r) The Commission, not later than two years after the initial set of sentencing guidelines

promulgated under subsection (a) goes into effect, and thereafter whenever it finds it advisable, shall

recommend to the Congress that it raise or lower the grades, or otherwise modify the maximum

penalties, of those offenses for which such an adjustment appears appropriate.

(s) The Commission shall give due consideration to any petition filed by a defendant

requesting modification of the guidelines utilized in the sentencing of such defendant, on the basis

of changed circumstances unrelated to the defendant, including changes in—

(1) the community view of the gravity of the offense;

(2) the public concern generated by the offense; and

(3) the deterrent effect particular sentences may have on the commission of the

offense by others.

(t) The Commission, in promulgating general policy statements regarding the sentencing

modification provisions in section 3582(c)(l)(A) of title 18, shall describe what should be

considered extraordinary and compelling reasons for sentence reduction, including the criteria to

be applied and a list of specific examples. Rehabilitation of the defendant alone shall not be

considered an extraordinary and compelling reason.

(u) If the Commission reduces the term of imprisonment recommended in the guidelines

applicable to a particular offense or category of offenses, it shall specify in what circumstances and

by what amount the sentences of prisoners serving terms of imprisonment for the offense may be

reduced.

(v) The Commission shall ensure that the general policy statements promulgated pursuant

to subsection (a) (2) include a policy limiting consecutive terms of imprisonment for an offense

involving a violation of a general prohibition and for an offense involving a violation of a specific

prohibition encompassed within the general prohibition.

(w) The appropriate judge or officer shall submit to the Commission in connection with each

sentence imposed (other than a sentence imposed for a petty offense, as defined in title 18, for

which there is no applicable sentencing guideline) a written report of the sentence, the offense for

which it is imposed, the age, race, and sex of the offender, information regarding factors made

relevant by the guidelines, and such other information as the Commission finds appropriate. The

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Commission shall submit to Congress at least annually an analysis of these reports and any

recommendations for legislation that the Commission concludes is warranted by that analysis.

(x) The provisions of section 553 of title 5, relating to publication in the Federal Register

and public hearing procedure, shall apply to the promulgation of guidelines pursuant to this section.

(Added Pub.L. 98-473, Title II, § 217(a), Oct. 12, 1984, 98 Stat. 2019, and amended Pub.L.

99-217, § 3, Dec. 26, 1985, 99 Stat. 1728; Pub.L. 99-363, § 2, July 11,1986, 100 Stat. 770; Pub.L.

99-570, Title I, §§ 1006(b), 1008, Oct. 27, 1986, 100 Stat. 3214; Pub.L. 99-646, §§ 6(b), 56, Nov.

10, 1986, 100 Stat. 3592, 3611; Pub.L. 100-182, §§ 16(b), 23, Dec. 7, 1987, 101 Stat. 1269, 1271;

Pub.L. 100-690, Title VII, §§ 7083, 7103(b), 7109, Nov. 18, 1988, 102 Stat. 4408, 4418, 4419).

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Mandatory Minimum Penalties U.S. Sentencing Commission