The Consequences of

Mandatory Minimum Prison Terms:

A Summary of Recent Findings

Barbara S. Vincent

Paul J. Hofer

Federal Judicial Center

1994

This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to conduct and stimulate research and development for the improvement of

judicial administration. The views expressed are those of the authors and not necessarily

those of the Federal Judicial Center.
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Contents

I. Introduction 1

II. Profile and Estimates of the Number of Low-Level Offenders

Affected by Mandatory Minimums 3

Low-level offenders affected indirectly through the Sentencing Guidelines 3

Offenders convicted under mandatory minimum statutes 6

Offenders whose sentences are directly controlled by the mandatory minimums:

the impact of “safety valves” 7

III. What Do the Mandatory Minimums Cost? 9

IV. Do the Mandatory Minimums Serve Sentencing Goals? 11

General deterrence of potential offenders 11

Specific deterrence and rehabilitation of known offenders 12

Incapacitation 12

Punishment 13

Mandatory minimums have had no observable effect on crime 14

V. Mandatory Minimums Are Not Applied Uniformly 17

Discretion is sometimes used to avoid applying the minimums to some

low-level offenders 18

Not all serious offenders receive the mandatory minimum term 20

VI. Mandatory Minimums Transfer Discretion from Neutral Judges to

Adversarial Prosecutors 21

VII. Mandatory Minimums Have a Disparate Impact on Non-White

Offenders 23

VIII. Mandatory Minimums Create Anomalies in the Law

of Sentencing 25

IX. Mandatory Minimums Have Hampered Sentencing Reform 26

X. Guidelines Offer a Better Way 28

The guidelines consider more of the salient offense and offender characteristics

and avoid sentencing cliffs 28

XI. Conclusion 32

Statistical Appendix 33

The Consequences of Mandatory Minimum Prison Terms iii
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The Consequences of Mandatory Minimum Prison Terms 1

I. Introduction

In recent years, evidence has accumulated

indicating that the federal mandatory minimum sentencing statutes have not been effective for achieving the goals of the criminal

justice system. Chief Justice William

Rehnquist has stated that these statutes are

“perhaps a good example of the law of unintended consequences.”1 There is substantial

evidence that the mandatory minimums result every year in the lengthy incarceration of

thousands of low-level offenders who could

be effectively sentenced to shorter periods of

time at an annual savings of several hundred

million dollars, and that the mandatory minimums do not narrowly target violent criminals or major drug traffickers. The statutes

have unintended consequences that compromise the basic fairness and integrity of the

federal criminal justice system. Moreover, the

benefits of mandatory minimums could be

achieved at a lower cost and with fewer negative side effects through application of the

federal Sentencing Guidelines.

To be sure, others assert that mandatory

minimums are worth the price. They believe

that negative side effects are overstated, and

that mandatory minimums serve important

symbolic functions and have a broad deterrent effect—or will have a deterrent effect as

public knowledge of congressional resolve to

punish crime severely increases.

To prepare this paper, we reviewed the evidence on federal mandatory minimums, including a new report by the Department of

Justice on low-level drug offenders,2 studies

by the General Accounting Office3 and the

United States Sentencing Commission,4 and

a previous Federal Judicial Center report,5 as

well as the best of other scholarly research

on mandatory minimums in the federal and

state systems. We analyzed data from the

United States Sentencing Commission on offenders who were convicted under the mandatory minimum statutes in 1992. We combined information from other studies to estimate the numbers of low-level offenders who

were directly or indirectly affected by the

mandatory minimum statutes in the most recent available statistical year. These findings

are presented in Figure 1.

We have supplemented these research

findings with actual cases from the U.S. district courts. The cases show that the theoretical flaws of the minimums have human consequences. These cases were found through

a search of computer records, and the reported

facts were then verified through consultation

with probation officers in the district where

each case was decided.6

Mandatory minimum sentencing statutes

have been tried in the federal system before,

1. William H. Rehnquist, Luncheon Address

(June 18, 1993), in United States Sentencing Commission, Proceedings of the Inaugural Symposium

on Crime and Punishment in the United States 286

(1993).

2. U.S. Department of Justice, An Analysis of

Non-Violent Drug Offenders with Minimal Criminal Histories 3 (December 1993) [hereinafter DOJ

Report].

3. U.S. General Accounting Office, Mandatory

Minimum Sentences: Are They Being Imposed and

Who is Receiving Them? (November 1993) [hereinafter GAO Report]. See also Henry R. Wray, Mandatory Minimum Sentences: Are They Being Imposed and Who Is Receiving Them?, Report to the

Chairman, Subcommittee on Crime and Criminal

Justice, House of Representatives GAO/GGD-94-

13 (November 1993).

4. See U.S. Sentencing Commission, Special Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (August 1991) [hereinafter Special Report to the Congress].

5. Barbara S. Meierhoefer, The General Effect

of Mandatory Minimum Prison Terms (Federal

Judicial Center 1992).

6. Since some of the facts presented come from

confidential presentence reports, we have used only

offenders’ initials to protect the identity of the offenders and their families.
2 The Consequences of Mandatory Minimum Prison Terms

7. Narcotic Control Act of 1956, Pub. L. No. 84-

728, tit. I, § 103, 70 Stat. 651, 653–55 (1956).

8. Special Report to the Congress, supra note 4,

at 6 (discussing S. Rep. No. 613, 91st Cong., 1st

Sess. 2 (1969)).

9. 28 U.S.C. § 991(b)(1)(B) (1988).

10. 18 U.S.C. § 3553(b) (1988). Departures must

be accompanied by a statement of reasons justifying the sentence as appropriate. Both the defendant and the government have the right to appeal

departure sentences. 18 U.S.C. § 3742 sets forth

the standards for appellate review of sentencing.

11. U.S. Sentencing Commission, Annual Report–1992, at 121 (1993) [hereinafter Annual Report–1992]. Judges departed an additional 15%

based on substantial assistance motions by the government, to be discussed later in this report.

12. The guideline range can be no greater than

25% of the minimum months of imprisonment or

six months, whichever is greater. 28 U.S.C.

§ 994(a)(2) (1988).

13. Prison can be avoided entirely only if the

minimum of the guideline range is six months or

less, which is far below the range for any offenses

covered by mandatory minimum sentences.

U.S.S.G. § 5C1.1(d) (1993).

14. Judge William W. Wilkins, Jr., Chairman of

the U.S. Sentencing Commission, Testimony Before the Subcommittee on Crime and Criminal Justice of the House of Representatives Committee

on the Judiciary (July 28, 1993), reprinted in 6 Fed.

Sentencing Rep. 2, at 67 (September/October 1993)

(emphasis in original).

notably in the Narcotic Control Act of 1956.7

In 1970, Congress repealed most of the mandatory minimum terms, in part because the

increases in sentence length required by the

statutes had not shown the expected reduction in drug law violations.8 But in 1984, as

part of the same comprehensive legislation

that created the Sentencing Guidelines, Congress began what has become biannual enactments of new mandatory minimum penalty

statutes. Over sixty federal criminal provisions

now contain mandatory

minimum penalties. The

idea behind them is

simple: If you commit a

crime involving a certain

amount of drugs, or possess a weapon during a

crime, or have certain

types of prior convictions, then the judge

must impose a prison

term of five years, ten

years, thirty years, or

even life imprisonment,

without the possibility of

parole for any of these

terms. Congress sets the minimum punishment, and every judge must impose it on every offender who meets the statutory criteria, regardless of any other facts in the case.

Without the statutory minimums, the coexisting federal guidelines would control sentences. The guidelines are also a form of mandatory sentencing—judicial discretion is

sharply limited and there is no parole. But

the guidelines take into account many more

factors than do the mandatory minimums;

they maintain “sufficient flexibility to permit

individualized sentences when warranted by

mitigating or aggravating factors not taken into

account in the establishment of general sentencing practices.”9 Judges may in extraordinary circumstances depart either upward or

downward from the guideline range.10 In

1992, judges departed above the range in 1.5%

of the cases and below the range in 6% of the

cases based on mitigating circumstances.11

Under the guidelines, judges can choose the

precise sentence from a narrow range of

months or years of imprisonment,12 and in

some cases they can impose alternatives to

imprisonment, such as home confinement.13

With the guideline structure in place, eliminating mandatory minimum statutes would

not be a return to the days of unfettered judicial discretion. The question for Congress is

how best to determine the punishment for

different types of crimes and offenders—

through the Sentencing Guidelines or through

mandatory minimum statutes.

Congress should not be

distracted by off-the-mark

suggestions that [mandatory

minimum sentencing] is a soft

vs. tough on crime issue.

I am a former prosecutor and

I chair an agency that views

crime control as the most

important goal of

sentencing. . . . So the real

issue is how to most effectively, efficiently, and fairly

achieve this important goal.14

—The Honorable William W.

Wilkins, Jr., U.S. Court of

Appeals for the Fourth Circuit
The Consequences of Mandatory Minimum Prison Terms 3

The greatest effect of the mandatory minimums is through their incorporation into the

Sentencing Guidelines, although this effect is

indirect. Disentangling the effects of the mandatory minimums from those of the guidelines

Low-level offenders affected indirectly through the

Sentencing Guidelines

15. Special Report to the Congress, supra note 4,

at 10. The statutes responsible were 21 U.S.C. § 841

(38,214 offenders), 21 U.S.C. § 844 (10,218 offenders), and 21 U.S.C. § 960 (6,135 offenders). The

total number of offenders in the period from 1984

to August 1990 was 59,780.

16. William W Schwarzer, Sentencing Guidelines

and Mandatory Minimums: Mixing Apples and Oranges, 66 S. Cal. L. Rev. 405 (1992).

17. Henry Scott Wallace, Mandatory Minimums

and the Betrayal of Sentencing Reform, 30 Fed. B.

News & J. 158 (1993).

18. See U.S. Sentencing Commission, Federal

Sentencing Guidelines Manual, at § 2D1.1 cmt.

n.10 (1994) [hereinafter Guidelines Manual]; see

also Ilene H. Nagel, Structuring Sentencing Discretion: The New Federal Sentencing Guidelines, 80 J.

Crim. L. & Criminology 883, 927–32 (1990).

II. Profile and Estimates of the Number

of Low-Level Offenders Affected by

Mandatory Minimums

Critics of the mandatory minimum statutes

contend that because the statutes are written

so broadly, many minor offenders are affected—including many who present no threat

to society and who could be adequately punished with shorter sentences. Determining

how many of these offenders are sentenced

every year, or how many are already in prison,

has been difficult. Computer databases do not

record whether a defendant warrants mercy.

People disagree over who is truly a “low-level”

drug trafficker or a “less culpable” conspirator. In addition, mandatory minimums have

both direct and indirect effects, and the number of offenders counted depends on which

effects one includes.

New data from the Department of Justice

and studies by the Sentencing Commission

allow us to estimate more closely than before

the numbers of offenders who are affected

by the mandatory minimums and are considered “low-level” offenders. We know, for example, that the minimums have had their

greatest impact on drug offenders. Ninety-one

percent of the defendants sentenced under

statutes with mandatory minimum provisions

during a recent six-year period were convicted

of drug offenses.15

is highly problematic,16 but the mandatory

minimums have influenced, and some would

say distorted, the guidelines and thus the entire federal sentencing structure.17 All federal

crimes committed since November 1987 (the

effective date of the Sentencing Guidelines)

are now sentenced under the guidelines. The

guideline levels were set by the Sentencing

Commission so that the length of imprisonment for all but the least culpable offenders

is longer than the length required by the mandatory minimums.18 This prevents extreme

disparities between those convicted under the

mandatory minimum statutes and those subject only to the guidelines, and it also permits

some room for downward adjustments in the

guideline range for offenders who plead guilty,

accept responsibility for their offenses, or

engage in other mitigating conduct. Every federal offender—even those not convicted under a mandatory minimum statute—has been

indirectly affected by the statutes because all

are subject to guidelines that have been set to

incorporate the mandatory minimums.
4 The Consequences of Mandatory Minimum Prison Terms

In fiscal 1992, 38,081 offenders were sentenced under the guidelines. Of these, 16,834

(44%) were convicted primarily of a drug offense.19 The top bar in Figure 1 shows these

drug offenders; lower bars show the number

falling under various definitions of low-level

offenders, including those who are indirectly

and directly affected by the statutes. About

half of the drug offenders (8,459 people) were

in the lowest criminal history category (they

received one or fewer points under the guidelines’ criminal history scoring scheme20), there

was no dangerous weapon involved in their

offense, and they were not organizers, leaders, managers, or supervisors (i.e., they had

no “aggravating role” under the guidelines) in

the drug trafficking operation.21 If we exclude

offenders who receive even one criminal history point under the guidelines, the number

drops to 6,897. These are the low-level drug

offenders who were both directly and indirectly affected by the mandatory minimums

in just one year.

The Department of Justice counted low-level

drug offenders sentenced in all years who are

currently in the custody of the Bureau of Prisons. The DOJ used a slightly different definition of “low-level”: offenders who had no

record of violence, no evidence of sophisticated criminal activity, and no prior prison

confinement. They found that of the 90,000

offenders currently in custody, over 45,000

were drug offenders, and over 16,000 of these

were low-level.22 The majority of these offenders had never been arrested before their

present offense. They are serving an average

sentence of 81.5 months and constitute more

than one-third of all of the drug violators incarcerated in federal prisons.23 If the

prosecutorial and sentencing practices of recent years continue, low-level offenders like

these 16,000 will be joined by thousands more

every year and will occupy an increasing proportion of federal prison space.24

The DOJ obtained additional information

on a representative sample of 767 low-level

drug offenders who were sentenced in 1992

and were in prison in June 1993. This

19. Annual Report–1992, supra note 11, Figure

B, Table 11, at 44–45 (15,643 for drug trafficking;

290 for use of a communication facility in the commission of a drug offense; 901 for simple drug possession).

20. Criminal history scoring is explained in Guidelines Manual, supra note 18, at ch. 4. Generally,

offenders earn at least one point if within the past

ten years they have received a sentence of less than

sixty days for any offense except certain foreign,

juvenile, or tribal offenses, or other specified petty

offenses, such as reckless driving.

21. DOJ Report, supra note 2, at 19 (reporting

data provided by the U.S. Sentencing Commission

from FY 1992).

22. Id. at 2.

23. Annual Report–1992, supra note 11, at 2–3.

24. Eric Simon, The Impact of Drug-Law Sentencing on the Federal Prison Population, 6 Fed. Sentencing Rep. 29 (July/August 1993).

25. The populations used in the DOJ study and

the Sentencing Commission data reported in Figure 1 vary slightly. Cf. DOJ Report, supra note 2, at

Appendix A and n.8. Both include only drug offenders with no indication of use of a weapon in

the present offense, and no indication of an aggravating role. The DOJ excluded offenders who had

previously been committed to a prison, including

juvenile convictions, or had any record of violence,

including institutional violence. The 6,897 included

in the Sentencing Commission count include offenders with a criminal history score of zero, which

would include some offenders with old or juvenile

commitments. The total population identified by

the DOJ was 5,099, after cases were excluded because of incomplete matches and missing data.

population’s profile is roughly comparable to

that of the offenders displayed in the third

bar from the top in Figure 1: drug offenders

with no criminal history points, no indication

of a weapon involved in the offense, and no

aggravating role in the crime. The DOJ data

can be used to estimate how many of these

lowest level offenders sentenced in one recent year played various types of minor

roles.25 Figure 1 illustrates the approximate

number who performed four of the least cul-
The Consequences of Mandatory Minimum Prison Terms

5

Figure 1: Breakdown of Fiscal 1992 Drug Offenders Affected by Mandatory Minimums

500 1,000 2,000 3,000 4,000 5,000 6,000 7,000 8,000 9,000 10,000 11,000 12,000 13,000 14,000 15,000 16,000 17,000 0

All fiscal 1992 

drug offenders

N = 16,834

One criminal history 

point or fewer,

no weapon,

no aggravating role

N = 8,459

No criminal history

points, no weapon,

no aggravating role

N = 6,897

Directly affected by

mandatory 

minimums

and safety valves

peripheral role (9%)mules (20%)couriers (15%)street-level dealers (22%)other (34%)

no criminal history points (N = 125)

one or fewer criminal history points (N = 155)

Figure 1: Breakdown of Fiscal 1992 Drug Offenders Affected by Mandatory Minimums
6 The Consequences of Mandatory Minimum Prison Terms

pable roles. Of the DOJ sample, 15% were

“couriers” and 20% were “mules,” whose sole

role in the offense was to transport the drugs.26

Twenty-two percent were street-level dealers

who distributed small quantities of drugs directly to users. About 9% had an even more

peripheral role, including those who ran errands, acted as lookouts, off-loaded boats, or

performed other similar functions. Only 1%

of the sample had a purely “passive” role, such

as a girlfriend who allowed her drug-dealing

boyfriend to use her apartment to store drugs.

The offenders described above are indirectly

affected by the mandatory minimums, but not

all were convicted under a statute carrying a

minimum penalty. Offenders convicted under

the statutes bear additional consequences: For

these offenders, the statute sets the prison

term, even if the guideline range is lower. If

the guidelines for their crimes are later

amended and applied retroactively, these offenders will still be required to serve the statutory term unless Congress changes the mandatory minimum and makes that change retroactive.27 Further, a judge can never depart

from a statutory minimum (as can be done

with guideline sentences) to take account of

mitigating circumstances. The only basis for

departure from a mandatory minimum is a

motion by the government that the defendant

has provided substantial assistance in the prosecution of another person. This exception,

while providing an out for some defendants,

creates many problems of its own, which we

discuss later in this report.

The Statistical Appendix contains complete

tables describing the characteristics of persons

convicted directly under the mandatory minimum statutes in fiscal 1992. Over one-quarter of offenders sentenced under the guidelines in fiscal 1992 were convicted under a

statute that carried a mandatory minimum

prison term. Eighty-eight percent of these offenders committed drug trafficking offenses.

Half of the drug offenses involved cocaine

powder; cocaine base (“crack”), marijuana/

hashish, and heroin accounted, respectively,

for 19%, 15%, and 8% of the total. Eightyfive percent of the offenders convicted under

mandatory minimum statutes did not play an

aggravating role in the offense. Forty-nine

percent received no criminal history points

under the Sentencing Guidelines, and 61%

received one or zero points. Weapons were

not involved in 77% of the offenses. The offenders also appear to have amassed no great

wealth from their crimes: 81% were judged

unable to pay a fine. Clearly, the mandatory

minimum statutes are not being applied only

to “kingpins” or armed drug dealers.

26. DOJ Report, supra note 2, at Table 16. Couriers transport drugs with the assistance of a vehicle,

mules carry drugs on their person or in their baggage. See DOJ Report, supra note 2, at 31 and Appendix B for complete definitions of these role categories.

27. This is the situation today for offenders sentenced to mandatory minimums for trafficking

LSD. The Sentencing Commission recognized that

including the weight of paper or sugar in which

the LSD is sold in the calculation of drug weight

led to sentences that were disproportionate and

excessive. (See discussion in text infra, Chapter 8.)

A recent amendment of the guidelines (Guidelines

Manual, supra note 18, at Amendment 488) enables

offenders whose sentences were controlled by the

guidelines to petition for corrective resentencing.

But whether the commission or the courts can resentence offenders who received the statutory minimum based on the weight of the carrier medium is

doubtful. See Administrative Office of the U.S.

Courts, Memorandum from Catharine M.

Goodwin, Office of the General Counsel, to the

Committee on Criminal Law (November 15, 1993)

(on file at the Federal Judicial Center).

Offenders convicted under mandatory minimum statutes
The Consequences of Mandatory Minimum Prison Terms 7

offender’s minor role in the offense or other

mitigating personal characteristics—that could

be the basis for a downward adjustment or a

departure. We don’t know how many alreadysentenced offenders might have received a

different sentence if there had not been the

mandatory minimum.

Second, the potential impact of a safety

valve depends on future actions by the Sentencing Commission and the Department of

Justice. If the commission were to amend the

guidelines for drug trafficking, a mandatory

minimum safety valve could potentially impact a larger number of offenders, depending

on the particulars of the guideline amendment. The number of offenders benefiting

from a sentencing safety valve could also be

smaller than in years past because a safety

valve of sorts at the prosecution stage has recently been established through a revision in

the Department of Justice’s Principles of Prosecution. Previous policies required the government to charge the most serious readily

provable offense, whereas new policies allow

prosecutors to consider whether the resulting sentence is disproportionate to the crime.29

The guidelines provide a standard for proportionality, and some prosecutors may decline

to pursue charges carrying a mandatory minimum if the resulting sentence is greater than

the otherwise applicable guideline sentence.

Studies by both the General Accounting

Office and the Sentencing Commission have

counted the number of cases where the mandatory minimum “trumped” the apparently

applicable sentence. The GAO found in its

study of 900 cases—selected in eight judicial

districts from cases in which an offender was

arrested for a crime involving an amount of

drugs that should trigger a mandatory minimum, the presence of a firearm, or both30—

that 25% of the time the mandatory minimum

was within the guideline range. In 5% of the

cases the mandatory term was greater than

even the top of the otherwise applicable guideThe sentences received by most drug offenders under the Sentencing Guidelines are well

above the mandatory minimum levels, since

the guidelines are anchored by the mandatory minimums and go up from there. Minor

participants, however, can benefit from reductions because of their mitigating role or from

judicial departures from the guidelines and,

depending on the amount of drugs involved,

the guideline sentence can be lower than the

mandatory minimum. Currently, when a person is convicted under a mandatory minimum

statute, neither the guidelines nor the judge

can go below the statutory “floor.” The mandatory minimum directly controls the sentence. Recent proposals for a “safety valve”—

legislation that would make the mandatory

minimums inapplicable for certain categories

of low-level drug offenders28—could benefit

offenders whose guideline range is now controlled by a mandatory minimum term.

Determining how many low-level cases have

been directly controlled by a mandatory minimum in this way, and how many in the future might benefit from safety-valve legislation, is difficult for several reasons. First, when

a mandatory minimum is known to apply,

probation officers and judges do not always

make findings concerning facts—such as the

28. See Flexibility in Application of Mandatory

Minimum Sentence Provisions in Certain Circumstances, H.R. Rep. No. 3355, 103d Cong., 1st Sess.,

at § 2404 (as passed by the Senate, November 1993).

29. Compare U.S. Department of Justice, Memorandum from Richard Thornburgh to U.S. Attorneys (March 13, 1989) with U.S. Department of

Justice, Memorandum from Janet Reno (October

12, 1993) (on file at the Federal Judicial Center).

(The new guidelines allow prosecutors to consider

“whether the penalty yielded by [the guideline]

sentencing range (or potential mandatory minimum

charge, if applicable) is proportional to the seriousness of the defendant’s conduct. . . .”).

30. GAO Report, supra note 3, at 4.

Offenders whose sentences are directly controlled by the

mandatory minimums: the impact of “safety valves”
8 The Consequences of Mandatory Minimum Prison Terms

line range.31 However, since the GAO sample

was not randomly selected exclusively from

the population of low-level, nonviolent, firsttime drug offenders, it cannot tell us how

many of this population are directly affected

by the minimums.

The best data concerning low-level offenders come from the Sentencing Commission,

which has recently attempted to estimate the

impact of various safety-valve proposals. If we

begin by eliminating those offenders who

were not convicted under a mandatory minimum statute from the 6,897 offenders with

no criminal history and low-level drug offenses in Figure 1, we are left with 3,198 cases.

From these we can eliminate 1,029 who were

excepted from the mandatory minimums

based on a motion by the government that

they provided substantial assistance, leaving

2,169.32 From this group, 601 offenders were

possibly affected by the mandatory minimums—the minimums were within the otherwise applicable guideline ranges. Only 125

offenders were definitely affected by the mandatory minimums; their guideline ranges were

entirely below the statutory terms to which

they had to be sentenced.33

The number of offenders who would be

affected by various safety-valve provisions

depends, of course, on how the safety valve

is defined. Some proposals, such as the one

included in the crime bill passed by the Senate on November 19, 1993, have more restrictive definitions of low-level than the definition used in the paragraph above. Precise estimates of the impact of proposals are impossible if data on the criteria used to define “lowlevel” are unavailable. For example, we can’t

determine whether defendants have prior foreign, domestic, or juvenile convictions,

whether they owned, financed, or sold any

drugs, or whether they cooperated with authorities. Consequently, numbers based on the

less restrictive criteria above are likely to be

overestimates of the number of defendants

who would be affected by safety valves with

additional restrictive conditions. The Sentencing Commission found that if we eliminate

31. Id. at 12.

32. Also eliminated in the Sentencing

Commission’s analysis are the small number whose

offense led to death or serious bodily injury.

33. See U.S. Sentencing Commission, Analysis

of the Violent Crime Control and Law Enforcement

Act of 1993—H.R. Rep. No. 3355 (as passed by the

Senate November 19, 1993), at Table 10, 49 (February 22, 1994) [hereinafter Analysis of Crime Bill].

34. See U.S. Sentencing Commission, Impact

Analysis of Drug Mandatory Minimum Carve-Out

for Defendants with No Known Prior Contact with

the Criminal Justice System (undated) (on file at

the Federal Judicial Center).

35. Analysis of Crime Bill, supra note 33.

offenders with any known prior contact with

the criminal justice system, the number of

defendants who would definitely benefit from

a safety valve falls to seventy-two.34

Conversely, if the qualifying criteria are

broadened, a safety valve’s potential impact

would be greater. If we apply the same criteria—no dangerous weapon, no aggravating

role in the offense, no death or bodily injury

arising from the crime—but increase the extent of prior record permitted, larger numbers of defendants would be affected. A safety

valve for those with one criminal history point

or less would definitely lower sentences for

155 offenders; for two points or less, 167 offenders; for three points or less, 200 offenders.35

Thus, policy makers considering enacting

additional mandatory minimums, repealing

some or all of the existing ones, or enacting

safety valves or other modifying legislation

should be mindful of the numbers and types

of offenders who would be affected by

changes in the mandatory penalty statutes.

Many of the effects of the mandatory minimums are indirect through the sentencing

guidelines. When the guidelines are made to

incorporate the mandatory minimums, the

guidelines magnify the statutes’ effects.

Changing statutes without changing the guidelines minimizes the effects of legislative

changes.
The Consequences of Mandatory Minimum Prison Terms 9

Using the above estimates of the numbers of

defendants directly and indirectly affected by

the mandatory minimums, we can approximate what the minimums cost and what might

be saved by (1) adding a safety valve, (2) eliminating mandatory minimums for drug offenses and allowing the present guideline system to operate, and (3) eliminating all mandatory minimums and amending the guidelines.

We know from previous work by the Bureau of Prisons that 70% of the prison growth

related to sentencing since 1985 is attributed

to increases in drug sentence length. “[D]rug

law offenders alone are consuming three times

more resources than all other federal crimes

combined . . . unless Congress and the Sentencing Commission change drug sentences,

relief will be nowhere in sight. The prison

population could reach 110,000 by 1997, twoand-a-half times what it was in 1987, at a

yearly operating cost of well over $2 billion.”36

The average annual cost of incarceration is

$20,747 per prisoner.37 Construction of new

prison space is, of course, an additional expense.

If Congress were to enact a safety valve for

offenders with no criminal history points,

about 125 offenders a year would definitely

receive lower sentences. Exact data on what

sentence these offenders currently receive is

not readily available, but we know that among

low-level offenders in the Department of Justice study who received a mandatory minimum, half were sentenced to five years and

half to ten.38 The resulting 935 bed-years cost

about $19,400,000.39 What sentences would

these offenders receive under the guidelines

without the statutory floor? If we assume

guideline calculations for these offenders begin at the offense level corresponding to the

amount of drugs specified in the mandatory

minimum, we can calculate what the average

sentence would be under the guidelines.

About three-quarters would receive a two- or

three-level reduction for acceptance of responsibility.40 About one-quarter would receive a

mitigating role reduction of two to four

points.41 An average three-level reduction for

every offender results in sentences of fiftyone or ninety-seven months for each half of

the population,42 leaving 769 bed-years at a

cost of $15,954,000. This represents a savings

of roughly $3.5 million in future expenditures

for low-level offenders sentenced in one year.

If the mandatory minimums were completely repealed, more savings would be realized. The Sentencing Commission estimated

the additional cost of the statutes above the

otherwise applicable guideline range for offenders sentenced in 1990. The mandatory

minimums directly affected 981 offenders. If

these offenders had received the applicable

guideline sentence instead, over $91 million

in future expenses would have been saved.43

Under a “high-impact” model, which assumes

that judges would sentence lower in the guideline ranges in cases where the mandatory

minimum now falls within the range, the savings climb to $145 million.

III. What Do the Mandatory Minimums Cost?

36. Eric Simon, The Impact of Drug-Law Sentencing on the Federal Prison Population, 6 Fed. Sentencing Rep. 29 (July/August 1993).

37. Based on the Federal Bureau of Prisons’ fiscal

year 92 per-bed cost of $56.84 per day.

38. DOJ Report, supra note 2, at Table 5.

39. The following calculations do not take into

account good-time credits, which may reduce sentences by up to 15%.

40. Seventy-eight percent of all drug trafficking

offenders in fiscal 1992 received this adjustment.

See Annual Report–1992, supra note 11, at Table

34, 92.

41. DOJ Report, supra note 2, at Table 23.

42. Assuming no departure and a sentence at

the mid-point of the guideline range.

43. Special Report to Congress, supra note 4, at

117. Figures were updated using the more current

estimated costs of imprisonment.
10 The Consequences of Mandatory Minimum Prison Terms

To achieve greater savings, a safety valve or

repeal must be combined with amendment

of the Sentencing Guidelines. If the guideline

ranges were reduced by two offense levels for

low-level drug offenders of the type identified by the Department of Justice, those offenders who now receive an average sentence

of 81.5 months44 would receive sentences

about 20% shorter45—for an average of about

65 months.46 This 16.5-month savings, applied

to the 6,897 offenders with no criminal history points sentenced each year, would save

9,483 bed-years, or almost $200 million a year.

If we multiply this by every year that the current sentencing regime stays in place, then

add the cost of the new prison construction

needed to house the burgeoning population,

we can estimate the cost of incarcerating lowlevel drug offenders for the lengthy sentences

mandated by the statutes. To save the billions

of dollars currently being spent on the lengthy

incarceration of low-level drug offenders will

require both statutory change and guideline

amendment.

44. DOJ Report, supra note 2, at 3.

45. The Sentencing Table in the Guidelines

Manual is constructed so that a two-level reduction results in a sentence about 20% shorter. See

Guidelines Manual, supra note 18, at 270.

46. The suggestion of a two-level reduction is

based on recent proposed amendments to the Sentencing Guidelines. See U.S. Sentencing Commission, Proposed Guideline Amendments for Public

Comment, 58 Fed. Reg. 67,522 (December 21,

1993), proposed amendment 8. All guideline

amendments are subject to the approval of Congress. Data from the preguidelines era show that a

defendant convicted of trafficking in 500 grams of

cocaine, who had a lesser role, and who plead guilty

would have served time of between ten to sixteen

months. See U.S. Sentencing Commission, Supplemental Report on the Initial Sentencing Guidelines

and Policy Statements, Table 1(a), at 27 (June 18,

1987). The minimum guideline range for this defendant today is thirty to thirty-seven months. The

statutory mandatory minimum is five years.
The Consequences of Mandatory Minimum Prison Terms 11

In a recent review of the results of decades of

research evaluating the effectiveness of mandatory minimum drug and firearm laws, Prof.

Michael Tonry concluded that “the weight of

the evidence clearly shows that enactment of

mandatory penalties has either no demonstrable marginal deterrent effects or shortterm effects that rapidly waste away.”48 The

reasons for this are several. When mandatory

minimums call for short prison terms, they

are often irrelevant because longer terms

would have been imposed anyway. When they

call for longer terms, they are often circumvented and thus do not increase the certainty

and predictability of punishment. Prof.

Stephen Schulhofer, reporting on the results

of an evaluation of the New York mandatory

minimum drug laws, notes that although the

statutes increased both the probability of incarceration upon conviction and the severity

of the sentences imposed, there were declines

in the volume of arrests, the rate of indictment upon arrest, and the rate of conviction

upon indictment. The result was that the overall probability of imprisonment after the law’s

enactment was lower than before the law.49

(See the additional discussion infra showing

that the federal mandatory penalties are not

applied uniformly,

Chapter 5.)

In addition, conventional assumptions of deterrence theory may not

apply to drug traffickers.

To be deterred, offenders must stop to weigh

the costs and benefits, be

aware of the penalties,

find those penalties intolerable, and have other

more attractive options.

Even if some potential

offenders are deterred,

drug trafficking will not

be curtailed if there are

other persons willing to

take the place of convicted offenders. This

appears to be true in the

profitable drug business.50 Only 5% of the

offenders convicted under the mandatory minimum statutes in fiscal year 92 were organizers or leaders of an extensive drug operation.

Over 85% did not manage or supervise traf47. The purposes of sentencing are codified in

federal sentencing law at 18 U.S.C. § 3553(a)(2).

48. Michael Tonry, Mandatory Penalties, in 16

Crime & Justice: A Review of Research, at 243–44

(Michael Tonry ed., 1990).

49. Stephen J. Schulhofer, Rethinking Mandatory

Minimums, 28 Wake Forest L. Rev. 207 (1993).

50. See generally Ralph D. Ellis & Carol S. Ellis,

Theories of Criminal Justice: A Critical Reappraisal

(1989); Mark A. R. Kleiman, Against Excess: Drug

Policy for Results 161–63 (1992).

IV. Do the Mandatory Minimums Serve

Sentencing Goals?

Whatever the cost of the mandatory minimums, they could be worth their expense if

they achieved important sentencing goals,

such as reducing crime or drug availability.47

A growing body of research, however, indicates that mandatory minimums in general,

and the federal statutes in particular, have not

proved effective. When they are effective (e.g.,

incapacitating dangerous offenders), they are

less precise than the guidelines system and

thus waste resources that could be conserved

by more precise tools.

General deterrence of potential offenders

Congress decided to hit the

problem of drugs, as they saw

it, with a sledgehammer,

making no allowance for the

circumstances of any particular case. . . . Under the

statutory minimum, it can

make no difference whether

he is a lifetime criminal or a

first-time offender. Indeed,

under this sledgehammer

approach, it could make no

difference if the day before

making this one slip in an

otherwise unblemished life,

defendant had rescued fifteen

children from a burning

building, or had won the

Congressional Medal of Honor

while defending his country.

—Judge J. Spencer Letts, Central

District of California, on having

to impose a ten-year sentence on

a situational offender (United

States v. Patillo, 93 Daily

Journal D.A.R. 5399, March 23,

1993).
12 The Consequences of Mandatory Minimum Prison Terms

Research has consistently found that longer

prison terms do not reduce recidivism. A recent review of the literature by the Department of Justice confirmed that “[t]he great

majority of recidivism studies of State and all

studies of Federal prison releasees report that

the amount of time inmates serve in prison

51. DOJ Report, supra note 2, at 41.

52. See U.S. Department of Justice, Office of

Policy Development, The Case for More Incarceration (October 28, 1992).

53. Alfred Blumstein et al., Criminal Careers

and “Career Criminals” 12 (1986).

ficking activity. These low-level offenders are

the type who are easily replaced in a drug

ring and whose removal cannot realistically

be expected to disrupt drug distribution.

Specific deterrence and rehabilitation of known offenders

does not increase or decrease the likelihood

of recidivism, whether recidivism is measured

as a parole revocation, rearrest, reconviction,

or return to prison.”51 Neither deterrence as

a result of fear of reimprisonment nor rehabilitation achieved in prison appears to be affected by the amount of time served.

Incapacitation

The leading argument for lengthy incarceration has been that it keeps dangerous offenders off the street so that they cannot continue

to commit offenses against the community.52

Incapacitation of persons likely to commit new

crimes can pay off—the cost of incarceration

may be lower than the cost of the crimes that

the person was likely to commit. The key,

however, is to target offenders who are likely

to commit new crimes, and the federal mandatory minimums do a poor job of this.

Research has clearly established that prior

criminal activity is the best indicator of future dangerousness.53 The majority of mandatory minimum statutes, however, base punishment not on prior criminal activity but

primarily on the amount of drugs or a few

other features of the present crime, such as

the presence of a firearm. The drug-trafficking mandatory minimums increase penalties

for repeat offenses, but they do so crudely,

and they often similarly treat persons with

significantly different risks of recidivism. Further, based on the data in Table 3 of the StaCase History:

VC is a 19-year-old man with no prior criminal

record. He dropped out of school after the seventh

grade, but then attended Keystone Job Corps Center

for five months. He was terminated from the program

before graduation, however, because of an altercation

with another student. He was enrolled in the Street

Academy at the time of his arrest. He has no other

employment history and remains financially dependent

on his mother. He denies use of drugs or alcohol, and

his urine specimens were negative for drug use.

While police were conducting “buy–bust” operations,

an undercover officer approached VC and asked for a

“twenty.” The officer then continued to walk down the

street as VC met with a male juvenile. Through the

use of a surveillance team, the police saw VC hand a

plastic bag to the juvenile, who then came up to the

undercover officer and handed him the bag in exchange

for $20 in marked money. The money was then delivered to VC. Upon arresting VC, the police recovered

forty-eight plastic bags of cocaine base, totaling 6.854

grams.

Based on the Sentencing Guidelines, VC’s time of

imprisonment ranged from fifty-one to sixty-three

months. However, the statutory provisions required a

minimum term of five years.
The Consequences of Mandatory Minimum Prison Terms 13

54. DOJ Report, supra note 2, at Table 27.

55. Id. at 38.

56. Andrew von Hirsch, Past or Future Crimes

(1985).

Punishment

Retribution—punishment imposed to express

society’s abhorrence of the crime—can also

be a valid reason for imprisonment. However,

the sentencing philosophy of “just deserts,”

which bases punishment partly on the amount

of harm done by a criminal, has always recognized that individual culpability is also a

crucial factor in determining degree of punishment.56 Mandatory minimums, by focusing only on the amount of drugs without considering the defendant’s role, motivation, state

of mind, or other individual characteristics,

are not a true implementation of any coherent punishment philosophy. They ignore the

question of how much imprisonment is deserved by each particular defendant.

Mandatory minimum statutes fail to differentiate among offenders who are quite different from one another, such as the leaders of a

conspiracy who plan and organize the importation of a planeload of drugs and reap the

profits, and the underlings who are paid a fixed

price to unload the plane, watch for police, or

carry out other menial tasks. Because mandatory minimums ignore many relevant sentencing factors, they give disproportionate

weight to the factors they do consider—

amount of drugs, particular types of prior convictions, and especially the government’s

power to move for a reduction of sentence

within three years, and rates increase to over

75% at the highest point levels.54 First-time

drug offenders were found to be especially

low risks for serious and violent recidivism.55

The guidelines are more precise tools for targeting high-risk offenders and could do an

even better job if the penalties for first offenders were not based on the mandatory minimums.

tistical Appendix, we find that half of the offenders convicted under mandatory minimum

sentencing statutes in fiscal 1992 had zero

criminal history points. They were the offenders least in need of incapacitation.

The Department of Justice study demonstrates that the guidelines’ criminal history

points are highly correlated with recidivism:

18% of releasees with zero points recidivate

based on a defendant’s substantial assistance

in the prosecution of another person, as discussed below.

Case History:

SC and JG are both 20-year-old women with no prior

criminal records who lived in an apartment with SC’s

boyfriend. SC’s boyfriend had apparently allowed a

friend to use the apartment to store a large amount of

cocaine, but as the boyfriend was not indicted, his exact role is unclear. However, neither SC nor JG knew

or were known by any of the other codefendants in

this case, and there is no evidence that they profited in

any way or bought, sold, or used drugs themselves.

They were aware that there were drugs in the apartment, and both were sentenced to ten years in prison.

SC had moved to the United States from Mexico with

her boyfriend about one year before because she wanted

their child (now ten months old) to be born in the United

States. JG had moved into the apartment only weeks

before the arrest at the request of SC, her foster sister,

who needed help caring for her infant son. At sentencing, the judge departed downward from the sentencing

guideline range to the ten-year minimum, stating that

SC was a “minimally involved offender if I ever saw

one,” and that JG’s case was clearly one of “being at

the wrong place at the wrong time.”
14 The Consequences of Mandatory Minimum Prison Terms

shown in Figures 2a and 2b, victimization

surveys—the best available data on both reported and unreported crimes—show a relatively stable rate for crimes of violence since

1975 and a fairly steady decrease in property

offenses that began well before the mandatory minimum era. This is perhaps not surprising, since only a small proportion of crime

is prosecuted in the federal courts. Federal

sentencing policy cannot be expected to have

a significant effect on the crimes of most concern to the public when most crime is prosecuted by the states. Moreover, mandatory

minimums have not until recently had the

public visibility that may be necessary to give

them a deterrent effect.

However, the prosecution of drug traffickers is one area in which the federal role is

substantial and where visible deterrent messages (e.g., zero tolerance) have been sent. But

here as well, survey data on the availability

of drugs to high school students—arguably the

best standard measure of long-term nationwide trends in drug availability—show that

there has been no overall drop since the mandatory minimums were implemented (see Figure 3).

It is always problematic to attribute changes

in crime rates to any particular policy, or to

prove that a policy has had any or no effect.

But at the least, these data show that the mandatory minimums have not proven effective

at reducing crime or reducing drug availability.

Trends in criminal victimization rates and drug

availability for the periods before and after

the mandatory minimums took effect fail to

demonstrate any reduction in crime that can

be attributed to the mandatory minimums. As

Mandatory minimums have had no observable effect

on crime

Case History:

PR is a 49-year-old woman with no previous arrests

or convictions who is described by family members

and her therapist as unassertive and an extreme introvert. Her two sons were the leaders of a city-wide crack

cocaine operation and distributed drugs from PR’s

home. PR neither bought nor sold drugs, nor profited

in any way from the drug sales. She did know that her

home was being used to distribute drugs by her two

sons and did nothing about it. She was found guilty by

a jury and sentenced to ten years in prison, the mandatory minimum required by the total amount of crack

involved in the conspiracy. The sons received life sentences.

PR’s ten-year sentence was more than double that of

MJ, one of her codefendants, who was an active street

dealer in the conspiracy. He had a prior record, four

pending charges, and was serving a sentence for manslaughter, the result of beating someone to death with

a baseball bat. MJ pled guilty and the government noted

in the plea bargain that this defendant was linked to a

lesser amount of crack than was involved in the whole

conspiracy. His mandatory minimum was therefore five

rather than ten years, and he was sentenced below the

minimum to fifty-seven months because of his cooperation with the authorities.
The Consequences of Mandatory Minimum Prison Terms 15

Figures 2a and 2b: Victimization Rates, 1973–1992

Figure 2a: Rate of Personal Victimization (per 1,000)

Source: Bureau of Justice Statistics, Criminal Victimization 1992 (1993), Table 3, at 4.

Year

0

50

100

150

200

250

300

73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92

Figure 2b: Rate of Household Victimization (per 1,000)

Year

0

10

20

30

40

50

60

70

80

90

100

73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92

Crimes of Violence Property Crimes
16 The Consequences of Mandatory Minimum Prison Terms

Figure 3: Percentage of High School Seniors Responding That Drugs

Would Be Fairly Easy or Very Easy for Them to Get

Source: Results of series of surveys by the Survey Research Center of the Institute for Social

Research as reported in the Sourcebook of Criminal Justice Statistics (1992), Table 2.76, at

224.

Year

0

10

20

30

40

50

60

70

80

90

100

87 88 89 90 91 92

Powder Cocaine Crack

Percentage

Year

0

10

20

30

40

50

60

70

80

90

100

79 80 81 82 83 84 85 86 87 88 89 90 91 92

Marijuana LSD Heroin

Percentage
The Consequences of Mandatory Minimum Prison Terms 17

A major goal of federal sentencing reform is

reducing disparity, but the federal mandatory

minimums are applied inconsistently. Charges

carrying mandatory minimum sentences are

often not pursued in cases where the facts

appear to warrant them. Charges may be

dropped after indictment, usually through a

process of plea bargaining in which the defendant agrees to plead guilty to lesser charges

or agrees to cooperate with the government

and assist in the prosecution of another person. The sentence that results when the mandatory minimums are not applied may be a

fair sentence—the prosecutor’s discretion not

to pursue charges carrying a mandatory minimum can be exercised to avoid some of the

worst consequences of the broadly worded

statutes. But the data show that prosecutorial

discretion alone is an imperfect tool for tailoring the mandatory minimums to appropriate cases.

The mandatory minimums “create an environment in which guideline circumvention becomes more common and acceptable, even in

situations not directly affected by the statutory minimum.”57 Circumvention of the mandatory minimums through plea bargaining is,

unlike the exercise of sentencing discretion,

hidden and unsystematic. “So long as the

mandatory minimum sentences and guidelines anchored by mandatory minimums are

tied to the charges for which the defendant is

convicted and prosecutors exercise unfettered

discretion in charging decisions, the goals of

certainty, uniformity, and the reduction of

unwarranted disparity are at risk.”58

The data confirming uneven application are

consistent and conclusive. At the request of

Congress, the Sentencing Commission conducted a study based on a national sample of

1,136 defendants in fiscal 1990. The commisV. Mandatory Minimums Are Not

Applied Uniformly

57. Ilene H. Nagel & Stephen J. Schulhofer, A

Tale of Three Cities: An Empirical Study of Charging

and Bargaining Practices Under the Federal Sentencing Guidelines, 66 S. Cal. L. Rev. 501, 560 (1992).

58. Id. at 561.

Case History:

TB, WC, and FC were codefendants in a conspiracy

to import marijuana that involved numerous transactions.

TB is a 50-year-old man with one prior conviction for

possession of marijuana, for which he was sentenced

to four years in prison. In the current offense, he was

involved in three different transactions, performing

various jobs, such as locating a landing site for an airplane, having the plane repaired, supplying motorcycles

to transport the marijuana, and assisting in the unloading of shipments. He pled guilty and was of substantial

assistance to the authorities, which resulted in a sentence of fifty-eight months.

WC is a 38-year-old first offender who owned a farm

where one planeload of marijuana was unloaded and

kept overnight; he stood guard during the unloading.

Despite his lesser culpability and clean record, he received a ten-year sentence.

FC, who cooperated with the government, also received a ten-year sentence. FC piloted or copiloted four

shipments, admitted to grossing in excess of $1 million, had two prior convictions for drug trafficking, and

was under both parole supervision and state probation

at the time of the current offense.
18 The Consequences of Mandatory Minimum Prison Terms

sion found that 26% of the defendants identified from file review as involved in behaviors

that appeared to warrant a mandatory minimum term pled guilty to a charge that carried

either a reduced mandatory minimum or no

minimum at all. An additional 16% were convicted of lesser counts, in most cases because

of plea agreements. Overall, only 60% were

sentenced to a term at least as long as the applicable mandatory minimum.59 The resulting report noted that “[s]ince 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.”60

Similarly, the study by the Federal Judicial

Center found that 46% of offenders identified

from computer records as likely to have been

involved in behavior that should trigger a

mandatory minimum received a sentence

below the apparently applicable minimum.61

The study by the General Accounting Office

found that 34% of the offenders in their

sample were not convicted under the mandatory minimum statute that appeared to be

warranted.62 The study reports specific district policies that were intended to avoid applying the mandatory minimums to low-level

offenders.

Discretion is sometimes used to avoid applying the

minimums to some low-level offenders

Figure 4a shows that offenders who have prior

records and those whose convictions involve

larger amounts of drugs are more likely to

receive a sentence at least as long as the prescribed minimum.63 Peripherally involved

offenders are much less likely to receive the

minimum than were those who are more culpable.64 A sentence lower than the applicable

minimum represents a shared view among the

prosecutor, defender, and the sentencing judge

that the minimum is not necessary to accomplish the purposes of sentencing. Such agreement exists for the vast majority of the minimally involved offenders and for over half of

those with minor roles—a message from those

who deal with offenders every day that the

mandatory minimum statutes are over-broad.

“Covert departures” such as these are of less

value than explicit guideline departures,

which must be accompanied by statements

of reasons on the record, because explicit departures can be used by the Sentencing Commission and Congress to monitor the workings of the statutes and inform decisions about

guideline revisions. Furthermore, while discretion is being used to ameliorate some of

the effects of mandatory minimums, it cannot be relied on to work in every case: Some

of the least culpable offenders still receive

substantial terms of imprisonment of equal

or even greater severity than more culpable

offenders.65

59. Special Report to the Congress, supra note 4,

Figure 5, at 56.

60. Id. at ii.

61. Meierhoefer, supra note 5, at 9.

62. GAO Report, supra note 3, at 6.

63. See also Meierhoefer, supra note 5, at 13 (drug

amounts), 15 (prior record).

64. Prosecutorial discretion is controlled through

the policies of the Department of Justice and each

U.S. Attorney. Revisions to the Department of

Justice’s Principles of Prosecution I, section 9-27.000,

may further increase the discretion of prosecutors

to avoid mandatory minimums in cases of low-level

offenders. See Memorandum of Attorney General

Janet Reno, supra note 29.

65. DOJ Report, supra note 2, at 45.
The Consequences of Mandatory Minimum Prison Terms 19

Figures 4a and 4b: Percentage Sentenced to at Least the

Mandatory Minimum

Figure 4a: By Drug Amount and Prior Record

Source: U.S. Sentencing Commission, Special Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System 66, 67, 75 (August 1991).

0

10

20

30

40

50

60

70

Peripheral Minor Distributor:

Street Level

Distributor:

Above Street

Level

Distributor/

Importer:

Highest

Level

Percentage Sentenced to at Least

the Mandatory Minimum

Figure 4b: By Role in the Offense Percentage Sentenced to at Least the Mandatory Minimum

0

10

20

30

40

50

60

70

High Medium Low No Yes

Drug Amount Prior Record
20 The Consequences of Mandatory Minimum Prison Terms

Not all serious offenders receive the mandatory

minimum term

Figures 4a and 4b also show that although

repeat offenders and those whose convictions

involve large drug amounts are more likely to

receive the minimum term than others, over

one-third of each of these groups of offenders

are sentenced beneath the apparently applicable minimum. Furthermore, the relationship between whether the minimum term was

applied and the role the offender played in

I do not know what efforts, if any, the government has made to

bring to justice James, or any of the drug kingpins who are ultimately responsible for Ms. Jackson’s possession of drugs. Too often

. . . this Court and other district courts find themselves sentencing

underlings to substantial sentences while the drug overlords remain

at large. In this case, and unfortunately too many others, the government seeks to justify a severe and disproportionate sentence by

pointing to the need to fight the drug war. I will not treat the Renee

Jacksons of the nation as stand-ins for drug kingpins simply because those genuinely deserving of harsh sentences are not before

me. The drug war simply cannot be won on the backs of Renee

Jackson and others like her.

—Judge Stanley Sporkin, District of the District of Columbia, upon sentencing a single homeless mother whose sole remuneration was to be

leftover drugs (United States v. Renee Jackson, 756 F. Supp. 23, Feb. 12,

1991).

the offense is curved: street-level offenders

are more likely to receive the minimum than

are those who are either more or less culpable.

Although this latter finding is surprising at first

glance, it is a consequence of the structure of

the current minimums and the accompanying shift in discretion from judges to prosecutors.
The Consequences of Mandatory Minimum Prison Terms 21

66. Stephen J. Schulhofer, Rethinking Mandatory

Minimums, 28 Wake Forest L. Rev. 207 (1993).

VI. Mandatory Minimums Transfer

Discretion from Neutral Judges to

Adversarial Prosecutors

The mandatory minimums base sentences

primarily on the particular charges that are

pressed, on the amount of drugs or number

of prior convictions that are found, and on

whether the defendant benefits from a motion for reduction of sentence based on substantial assistance—factors that are largely

controlled by the prosecutor. While prosecutors have always had charging discretion, what

is new under the mandatory minimums is that

there is little judicial discretion left to check

and balance the prosecutor’s decisions.

The transfer of discretion from neutral

judges to adversarial prosecutors tilts the sentencing system toward prosecution priorities,

sometimes at the expense of other sentencing

goals. For example, the government relies on

assistance and cooperation from some defendants—perhaps as confidential informants or

witnesses at trial—to make cases against others. Sentencing incentives for those who cooperate are viewed as an important component of law enforcement. The problem is that

offenders who are more involved in the drug

network and have more valuable information

to provide are in a better position to receive a

reduced sentence than are less culpable offenders who are less informed. Consequently,

more culpable offenders may get shorter sentences than the low-level offenders who participated in the same conspiracy. Prof. Stephen

Schulhofer called this the “Cooperation Paradox.”66

Mandatory minimum penalties, combined with a power to grant

exceptions, create a prospect of inverted sentencing. The more serious the defendant’s crimes, the lower the sentence—because the

greater his wrongs, the more information and assistance he has to

offer to a prosecutor. Discounts for the top dogs have the virtue of

necessity, because what makes the post-discount sentencing structure topsy-turvy is the mandatory minimum, binding only for the

hangers on. What is to be said for such terms, which can visit

draconian penalties on the small fry without increasing prosecutors’ ability to wring information from their bosses? Our case illustrates a sentencing inversion. Such an outcome is neither illegal nor

unconstitutional, because offenders have no right to be sentenced

in proportion to their wrongs. . . . Still, meting out the harshest

penalties to those least culpable is troubling because it accords with

no one’s theory of appropriate punishments.

—Judge Frank H. Easterbrook, U.S. Court of Appeals for the Seventh

Circuit (United States v. Anthony Brigham, 977 F.2d 317 (7th Cir. 1992))
22 The Consequences of Mandatory Minimum Prison Terms

Case History:

MR and AM were codefendants who conspired to distribute

five kilograms of cocaine.

MR is a 41-year-old male first offender who sold two small

quantities of cocaine to an undercover agent and made arrangements for the sale of an additional five kilograms. He is married

and, until being fired because of his involvement in the current

offense, had been a comptroller for fifteen years. After his arrest,

he sought treatment for his cocaine abuse and was reportedly

doing well. He pled guilty, provided the authorities with substantial assistance, and as a result received a sentence (below his fiveyear minimum) of one year in prison.

AM is a 37-year-old man who accompanied MR to the arranged

sale and served as courier for a portion of the drugs. He has no

prior convictions and had a stable employment history as a messenger with the same company for fifteen years; he was described

by his boss as a trusted employee. Like MR, he had a history of

drug abuse. AM pled guilty, but was not of “substantial assistance,” as was his more culpable codefendant. He therefore received a sentence of sixty-three months, which was the bottom

of his guideline range and just above his five-year mandatory

minimum term.
The Consequences of Mandatory Minimum Prison Terms 23

67. Meierhoefer, supra note 5, Graph 16a, at 21.

68. Whether this arises only from blacks’ disproportionate use of crack as compared with their

use of powder cocaine, or whether it reflects selective prosecution practices, is the subject of current

research and debate. Compare Richard Berk & Alec

Campbell, Preliminary Data on Race and Crack

Charging Practices in Los Angeles, 6 Fed. Sentencing Rep. 36 (1993) with Joseph E. Finley, Crack

Charging in Los Angeles: Do Statistics Tell the Whole

Truth About “Selective Prosecution”?, 6 Fed. Sentencing Rep. 113 (1993).

69. Special Report to the Congress, supra note 4,

at 81.

70. The study did not control for ethnicity, but it

did find a significant relationship between sentence

length and citizenship—a factor not considered by

either of the other studies. It is not known whether

the association between sentence length and

ethnicity found in other studies might, in fact, be

the result of the association of ethnicity and citizenship. DOJ Report, supra note 2, Appendix C, at

35.

As shown in Figures 5a and 5b, studies by

both the Sentencing Commission and the Federal Judicial Center have found that among

offenders who engaged in conduct warranting a mandatory minimum, white offenders

were less likely than blacks or Hispanics to

receive the mandatory minimum term. In addition, since the mandatory minimums have

been enacted, the gap between the average

sentences of blacks and those of other groups

has grown wider.67 These racial and ethnic

differences indicate that one or more features

of the current system have a proportionally

greater impact on blacks and Hispanics than

on whites.

Statutes having a disparate impact on blacks

include those that make offenses involving five

or more grams of crack cocaine (a weekend’s

supply to a serious abuser) subject to the same

mandatory minimum term of five years in

prison as offenses involving 100 times that

VII. Mandatory Minimums Have a Disparate

Impact on Non-White Offenders

amount of powder cocaine. Because blacks are

more likely to be prosecuted for crack offenses

and whites for powder cocaine offenses,68 the

long sentence lengths for smaller amounts of

crack lead to longer sentences for blacks.

Two other factors have the unintended consequence of reducing sentences for whites

more than those for blacks: (1) the discount

afforded defendants who plead guilty, and (2)

the discount for defendants who cooperate

and provide substantial assistance to authorities. Whites tend to plead guilty and receive

motions for reductions of sentence for cooperation more frequently than blacks do.69

However, the Department of Justice found that

there are no significant differences in sentence

lengths for black defendants and white defendants who plead guilty and cooperate with

authorities.70

It is conceivable that plea opportunities are

equal for the races and are simply rejected

more often by minority offenders, or that

whites have a greater willingness or ability

than minority defendants to provide substantial assistance. If so, then the disparate impact is simply an unintended consequence of

policies that are neutral on their face and in

their application. Even if true, questions would

remain about whether the purposes advanced

by these policies outweigh their disparate

impact, or whether policies with less disparate impact could be found that would be

equally effective. Is crack cocaine sufficiently

more dangerous than powder cocaine to justify the harsher treatment? Should defendants

who exercise their right to trial get longer sentences than those who plead guilty? Could

ways be found to minimize the adverse impact of current policies on cooperation—for

example, by taking into account the willingness of peripheral defendants to cooperate,

even if they are too low-level to have any useful information to provide?
24 The Consequences of Mandatory Minimum Prison Terms

Figures 5a and 5b: Percentage Sentenced to at Least the Mandatory

Minimum by Race of the Offender

Figure 5a: U.S. Sentencing Commission Study

0

10

20

30

40

50

60

70

White Black Hispanic Other

Percentage Sentenced to at Least

the Mandatory Minimum

Source: U.S. Sentencing Commission, Special Report to the Congress: Mandatory Minimum

Penalties in the Federal Criminal Justice System 80 (August 1991).

Figure 5b: Federal Judicial Center Study

Source: Barbara Meierhoefer, The General Effect of Mandatory Minimum Prison Terms 21

(Federal Judicial Center 1992).

0

10

20

30

40

50

60

84 85 86 87 88 89 90

White Black Hispanic

Year

Adjusted Percentage
The Consequences of Mandatory Minimum Prison Terms 25

An offender who sells ten grams of heroin

mixed with eighty-nine grams of sugar has no

required mandatory minimum term; the minimum for an offender who sells ten grams of

heroin mixed with ninety grams of sugar is

five years. These examples illustrate two

anomalies of the present mandatory minimum

statutory scheme. The first arises from statutory language that includes, when one figures

the weight of drugs triggering the mandatory

minimums, the weight of any “mixture or substance containing a detectable amount” of the

drug.71 The courts have been left to struggle

with cases in which the weight of suitcases

bonded to the drugs, or of wash water used to

clean drug laboratory equipment, or paper

that weighs hundreds of times as much as the

drugs themselves is used to set the length of

imprisonment.72 Using the weight of mixtures

penalizes persons lower in the distribution

chain who typically dilute the drug. Factors

such as the atmospheric humidity and the type

of paper used to carry the drug can dramatically affect the sentence. One judge concluded

that “[t]o base punishment on the weight of

the carrier medium makes about as much

sense as basing punishment on the weight of

the defendant.”73

The second anomaly is known as “sentencing cliffs.” Sentencing cliffs arise when small

differences in facts mean large differences in

sentences (e.g., where one extra gram triggers

a mandatory minimum term of five years). In

addition to the exaggerated effect this gives

to small amounts of drugs, some mandatory

VIII. Mandatory Minimums Create Anomalies in the

Law of Sentencing

71. See, e.g., 21 U.S.C. § 841(b) (1988).

72. See Chapman v. United States, 500 U.S. 453

(1991).

73. United States v. Chapman, 908 F.2d 1312 (7th

Cir. 1990) (Posner, J., dissenting).

74. 21 U.S.C. § 851 (1988).

minimum provisions double the applicable

minimum for offenders who have a prior conviction for a drug felony. For the prior-conviction enhancement to apply, the government

must specify the particular conviction it is

using to invoke the “second offender” penalty.74

Case History:

AM and JG were codefendants who were arrested

by authorities after the unloading of a shipment of cocaine. Both are characterized in official documents as

“acting under the direction of an unindicted coconspirator.”

AM is a 56-year-old man who was a watchman at

the house where the drugs were unloaded and served

as the “look-out” in this offense. He has three prior

convictions: a five-year sentence for importation of marijuana in 1976; a sentence of probation for carrying a

concealed weapon; and a two-year term for counterfeiting, from which he was released in 1988. He pled

guilty to one count and provided authorities with substantial assistance.

JG is a 44-year-old man who helped to unload the

drugs. He has one 12-year-old prior conviction for possession with intent to distribute marijuana, for which

he received a nine-month sentence, and a nolo contendere

plea to a DUI charge. He was found guilty after trial of

one count.

Because both of these rather similar offenders had a

prior conviction for a drug felony, the prosecutor filed

a “second offender” notice for each. However, while

the notice stood for JG, it was withdrawn for the cooperating defendant, AM. The result? AM was sentenced

to ten years and JG was sentenced as a second offender

to twenty years.
26 The Consequences of Mandatory Minimum Prison Terms

The Sentencing Reform Act of 1984, which

created the guidelines system, culminated a

legislative process that began in 1970. Its

emphasis on fairness, predictability, and openness in sentencing garnered broad bipartisan

support, and the Act was

accompanied by a

lengthy and thoughtful

legislative history. By

creating the United

States Sentencing Commission, Congress recognized that an independent, expert commission

was better equipped than

itself for the esoteric, yet

politically sensitive task

of setting criminal penalties. Congress then enacted mandatory minimum statutes for some of

the most common federal offenses before the

first set of Sentencing

Guidelines was issued.75

This action seriously

hampered guideline development.

The Sentencing Commission incorporated the

mandatory minimums

instead of relying on independent study of past

practices and the purposes of sentencing to

scale the offenses and determine appropriate

sanctions.76 The commission therefore

adopted many features of the minimums:

• The guidelines require a government motion before the court can depart below the

guideline range based on an offender’s substantial assistance to authorities.

• The guidelines set sentences based largely

on the amount of any mixture of substance

containing a detectable amount of drugs,

rather than the actual amount of the illegal

substance.

• The guidelines anchor punishment for

drug offenses in accordance with the trigger

amounts in the statutes and scale punishment

up from there.

The commission’s approach generally leads

to sentences well above the mandatory minimum, but as noted earlier, some defendants

receive downward adjustments for their roles

in the offense and acceptance of responsibility, and hit the mandatory minimum “floor.”

To avoid this—to make the mandatory minimums truly minimums for the least culpable

offenders who plead guilty, while preserving

the proportionality of the guidelines—would

require that sentences for all offenders be

ratcheted up at least five more levels.77 This

would result in approximately a 75% increase

in every federal sentence. Proportionality cannot be achieved under the current mandatory

minimums without greatly increasing all senIX. Mandatory Minimums Have Hampered

Sentencing Reform

75. The mandatory minimums for drug offenses

became effective for offenses committed on or after October 27, 1986; the first guidelines were effective for offenses committed on or after November 1, 1987.

76. Ilene H. Nagel, Structuring Sentencing Discretion: The New Federal Sentencing Guidelines, 80 J.

Crim. L. & Criminology 883, 927–32 (1990).

77. Offenders who play a minimal role are

granted a four-point reduction under the guidelines;

those who accept responsibility in a timely manner can receive a three-point reduction. See Guidelines Manual, supra note 18, at ch. 3. Current guideline levels are set two points higher than is necessary to ensure that the guideline range includes

the mandatory minimum term corresponding to

various amounts of drugs.

Mandatory minimums . . . are

frequently the result of floor

amendments to demonstrate

emphatically that legislators

want to “get tough on crime.”

Just as frequently they do not

involve any careful consideration of the effect they might

have on the Sentencing

Guidelines, as a whole.

Indeed, it seems to me that

one of the best arguments

against any more mandatory

minimums, and perhaps

against some of those that we

already have, is that they

frustrate the careful calibration of sentences, from one

end of the spectrum to the

other, which the Sentencing

Guidelines were intended to

accomplish.

—Chief Justice William H.

Rehnquist, at the National

Symposium on Drugs and

Violence in America,

 June 18, 1993.
The Consequences of Mandatory Minimum Prison Terms 27

tence lengths and prison populations.

The Sentencing Commission could address

some of these problems by setting the guidelines where they think appropriate, regardless of the statutes. But this would increase

prosecutorial power and create further potential for disparity and abuse, since the

prosecutor’s decision to charge the mandatory

minimum would then have even greater consequence than it does today. The best way for

real sentencing reform to proceed is for the

mandatory minimum statutes to be repealed

or made secondary to the Sentencing Guidelines.
28 The Consequences of Mandatory Minimum Prison Terms

Mandatory minimums have contaminated

assessment of the Sentencing Guidelines.

Judges and other close observers believe that

many of the worst flaws of the guideline system can be traced to the mandatory minimums. In contrast to the simplistic categorization scheme and inflexibility of the mandatory minimums, the Sentencing Guidelines

X. Guidelines Offer a Better Way

As long as the guidelines mimic the statutes

and base punishment primarily on drug

amounts, the importance of role in the offense,

offender characteristics, and other relevant

factors will be undervalued. But the current

guidelines still take into account more factors—including some adjustment for role, acceptance of responsibility, and attributes of

any victims of the crime—than do the mandatory minimum statutes. As Figure 6 shows,

the guidelines avoid the sentencing cliffs inherent in the minimums by calibrating drug

The guidelines consider more of the salient offense

and offender characteristics and avoid sentencing cliffs

amounts and prior record more finely, and

providing for overlapping guideline ranges.

In the hypothetical “heroin and sugar” example presented on page 25, one gram of

sugar makes a five-year difference in the applicable mandatory minimum term. Under

the guidelines, the sentencing ranges would

overlap: For a first offender, 99 grams of

heroin and sugar equate to a guideline range

of fifty-one to sixty-three months, whereas

100 grams of heroin and sugar equate to sixtythree to seventy-eight months.

I firmly believe that any reasonable person who exposes himself or

herself to this [mandatory minimum] system of sentencing, whether

judge or politician, would come to the conclusion that such sentencing must be abandoned in favor of a system based on principles

of fairness and proportionality. In our view, the Sentencing Commission is the appropriate institution to carry out this important

task.

—Senior Judge Vincent L. Broderick, Southern District of New York,

speaking for the Judicial Conference Committee on Criminal Law in

testimony before the Subcommittee on Crime and Criminal Justice of the

House Committee on the Judiciary, July 28, 1993.

offer a richer and more rationally structured

approach to sentencing and one that is much

better suited to the tasks of reducing unwarranted disparity, reducing unwarranted uniformity, and allocating expensive prison space

for the most dangerous and deserving offenders.
The Consequences of Mandatory Minimum Prison Terms 29

78. 21 U.S.C. § 841(B) (1988).

Figure 6: Guideline Range vs. Mandatory Minimum for Various

Amounts of a Mixture Containing Heroin

As Figure 7 shows, the provisions of the

guidelines concerning prior record are also

more proportional than mandatory minimums. If the defendant with 100 grams of

heroin and sugar had one prior conviction for

a drug felony, the mandatory minimum would

jump from five to ten years.78 The guidelines

for this offense can reach ten years for offenders with serious prior records (e.g., three prior

felonies), but they get there more gradually.

The range moves from sixty-three to seventyeight months to seventy to eighty-seven

months for one prior drug felony that was not

very recent, and to seventy-eight to ninetyseven months if less than two years elapsed

since the offender’s release from the prior sentence. Furthermore, if the prior conviction was

for a non-drug felony such as robbery, the

increase under the guidelines because of prior

record would be the same as for a drug felony,

whereas there would be no increase under

the mandatory minimum statutes at all.

Amount of Heroin Mixture

5 – < 10 g.

10 – < 20 g.

20 – < 40 g.

40 – < 60 g.

60 – < 80 g.

80 – < 100 g.

100 – < 400 g.

400 – < 700 g.

700 – < 1000 g.

1 – < 3 k.

3 – < 10 k.

10 – < 30 k.

30 – < 100 k.

100 – < 300 k.

≥ 300 k.

Prison Months

0

36

72

108

144

180

216

252

288

324

360

Guideline Range

Mandatory Minimum
30 The Consequences of Mandatory Minimum Prison Terms

Figure 7: Guideline Range vs. Mandatory Minimum for Number of

Drug Felony Convictions (When the Current Offense Is Within Two

Years of Release from Imprisonment on the Last Conviction)

Case History:

RP is a first-time offender and a citizen of Colombia, where

his wife and five children reside. He received approximately

$176 to crew a yacht from Colombia to Haiti. He was apparently unaware that the yacht was carrying a load of marijuana until he broke into a locked front cabin containing the

drugs to investigate a water leak. (The boat eventually sank.)

The captain had left the yacht to buy tickets for the crew’s

flight back to Colombia and was not there when the ship

began to take on water or when it was boarded by the U.S.

Coast Guard. RP’s calculated guideline range was seventyeight to ninety-seven months, reflecting the following facts:

(1) the amount of marijuana was 1,000–3,000 kilograms; (2)

there was no enhancement for a weapon; (3) he was a first

offender; (4) he played a minor role; and (5) he accepted responsibility for his actions. RP was sentenced to the mandatory minimum ten-year sentence—almost two years more than

would otherwise have been called for under the guidelines.

 Record of Recent Drug Felonies

Prison Months

0

24

48

72

96

120

144

None One

Recent

Two–

At Least

One Recent

Three–

At Least

Mandatory Minimum

Guideline Range

One Recent
The Consequences of Mandatory Minimum Prison Terms 31

Case History:

FQ is a 47-year-old illegal alien who was the stash house

maintenance man in a marijuana conspiracy. At the request

of one of his codefendants, he unlocked the door to the house

and readied the house for his codefendants, who then unloaded a shipment of marijuana. FQ was aware that drugs

were involved and pled guilty. His calculated guidelines range

was forty-one to fifty-one months, reflecting the following

facts: (1) the amount of marijuana was 100–400 kilograms;

(2) there was no enhancement for a weapon because none of

the weapons involved in the offense were “reasonably foreseeable” by the defendant; (3) he was a first offender; (4) he

played a minor role; and (5) he accepted responsibility for his

actions. However, since the amount of marijuana triggered a

mandatory minimum term—and he had no helpful information to offer to authorities—FQ was sentenced to the required

five years.

This was the same sentence given to JD, a supplier who

received a sentence reduction under Federal Rule of Criminal Procedure 35(b) for his testimony in a related case, and to

AG, a distributor, and EE, a collector/broker in the conspiracy.
32 The Consequences of Mandatory Minimum Prison Terms

79. Michael Tonry, Mandatory Penalties, in 16

Crime & Justice: A Review of Research, at 243–44

(Michael Tonry ed., 1990).

80. Special Report to the Congress, supra note 4,

at 118.

81. Marc Miller & Daniel J. Freed, The Chasm

Between the Judiciary and Congress Over Mandatory

Minimum Sentences, 6 Fed. Sentencing Rep. 59

(1993) (emphasis in original).

XI. Conclusion

In an extensive review of research on the effects of mandatory minimum sentences, Prof.

Michael Tonry concluded that “[b]asic new

insights concerning application of mandatory

penalties are unlikely to emerge. . . . We now

know what we are likely to know, and what

our predecessors knew, about mandatory penalties. As instruments of public policy, they

do little good and much harm.”79

There are better alternatives that can more

effectively express our values and accomplish

our goals. Formal and informal ways for Congress to convey its policy recommendations

to the Sentencing Commission, other than

through mandatory minimum sentences, are

catalogued in the commission’s Special Report

to the Congress.

80 These include changes in the

statutory maximums, along with directives to

the Sentencing Commission to reevaluate

guideline levels or to study, report to Congress,

and amend the penalties for particular crimes.

Congress reviews all guideline amendments

before they become effective.

In a recent special issue of the Federal Sentencing Reporter, the editors listed five principles to help accommodate the needs of Congress and the judiciary to find fair and effective sentencing statutes:

(1) The narrower the definition of the offense and offender to which a mandatory penalty applies, the fewer the inappropriate cases

will be swept within it.

(2) The more flexible a mandate, the more

likely it will accommodate proportionate sentences in dissimilar cases.

(3) The higher the severity of a mandatory

minimum, the more likely that uniform sentences will exceed reasonable and intended

punishment.

(4) There is an inherent conflict between

the structural principles which accommodate

fine tuning by the Commission and courts

under the Sentencing Reform Act of 1984 and

the blunt instrument of mandatory penalties.

(5) Just as no judge is permitted by law to

sentence an offender without a carefully developed factual record, Congress ought not formulate mandatory sentences without the relevant facts about affected defendants. . . .

Before considering any mandatory sentencing

legislation, Congress should require a formal

Sentencing Commission report and then hold

hearings on (i) the nature and range of crimes

covered by the proposal, (ii) the characteristics of offenders falling within the terms of

the proposal, and (iii) the sentencing patterns

under existing law for crimes and offenders

falling within the terms of the proposal . . . .81

These principles should be applied to a review of the mandatory penalties already in

place, as well as to new legislation.

The extensive body of research summarized

here and the procedures outlined by the Sentencing Commission, along with the five principles outlined above, can help Congress as it

continues to work toward a more fair and effective criminal justice system.
The Consequences of Mandatory Minimum Prison Terms 33

Statistical Appendix

Profile of Offenders Convicted Under Mandatory

Minimum Sentencing Statutes in Fiscal 1992

Table 1: Number of Offenders and Type of Offense to Which

Mandatory Minimums Applied

Number sentenced under a statute with a mandatory minimum

prison term: 10,670 (28%)

Drugs: 9,401 (88%)

Drugs only 8,238 (77%)

Drugs + firearms 1,163 (11%)

Firearms (non-drug) 989 (9%)

Other 280 (3%)

Table 2: Type of Drug Offenses to Which Minimums Applied

Cocaine Cocaine Marijuana/ Not

Powder Base Heroin Hashish Other Known Total

Trafficking 4,673 1,805 773 1,404 676 28 9,359 (99%)

Distribution/

 manufacture 4,163 1,671 584 1,228 635 24 8,305 (88%)

Import/export 371 9 172 140 11 0 703 (7%)

Other

 trafficking 139 125 17 36 30 4 351 (4%)

Use of a

communication

facility 3 1 0 1 2 0 7 (< 1%)

Simple possession 6 17 4 5 3 0 35 (< 1%)

Total 4,682 1,823 777 1,410 681 28 9,401

(50%) (19%) (8%) (15%) (7%) (< 1%)

Source: U.S. Sentencing Commission, Monitoring of Federal Criminal Sentences, 1992 (computer file; Washington, D.C: United States Sentencing Commission, producer, 1993; Ann Arbor, Mich.: Inter-university Consortium for Political and Social Research, distributor, 1993).
34 The Consequences of Mandatory Minimum Prison Terms

Table 3: Description of Drug Trafficking Offenders (N = 9,359)

A. Role in Offense

Manager/Leader Manager Leader

Minimal Minor None (Small) (Large) (Large) Unknown

340 881 6,755 587 334 442 20

4% 9% 72% 6% 4% 5% < 1%

Notes: The classifications are based on guideline adjustments for role as described in detail at

section 3B1.1 and section 3B1.2 of the United States Sentencing Commission Guidelines Manual.

“Manager” is a manager or supervisor; “leader” is an organizer or leader; “small” refers to

criminal activity involving fewer than five participants and not otherwise extensive. “Unknown” includes missing, conflicting, and inapplicable data.

B. Criminal History Points

Number of

Points Offenders Percentage

0 4,602 49%

1 1,157 12%

2 426 5%

3 832 9%

4 437 5%

5 395 4%

6 426 5%

7–9 558 6%

10+ 520 6%

Unknown 6 < 1%

Notes: Under Chapter 4 of the Guidelines Manual, offenders are assigned criminal history

points for prior convictions. Generally, three points are given for each conviction in which

the resulting sentence was over thirteen months imprisonment, two points for sentences

between sixty days and thirteen months, and one point for other convictions. Points are also

assigned if the offender was under criminal jurisdiction for another offense when the current

crime was committed, or if a two- or three-point conviction was sustained within two years of

the current offense. Refer to the manual for detailed instructions on when convictions are

not counted and when additional points can be added for prior violent offenses.

C. Weapon Possession During Crime

Number of

Offenders Percentage

Weapon 2,149 23%

No weapon 7,197 77%

Missing 13 < 1%

Notes: A weapon for which the offender was held responsible was assumed to have been

present if either the offender (1) was also convicted under 18 U.S.C. § 924 or (2) received a

two-level enhancement for possession of a weapon under section 2D1.1 of the Sentencing

Guidelines. “Missing” denotes missing data.
The Consequences of Mandatory Minimum Prison Terms 35

Table 4: Mandatory Minimum Drug Trafficking Offenses by Role in

the Offense, Criminal History, and Weapon Possession

Criminal History Role in Offense Manager/

Points/Weapon Leader Manager Leader

Possession Minimal Minor None (Small) (Large) (Large)

0

 All offenders 234 (3%) 518 (6%) 3,216 (34%) 271 (3%) 155 (2%) 199 (2%)

 No weapon 213 (2%) 455 (5%) 2,593 (28%) 205 (2%) 122 (1%) 131 (1%)

 Weapon 21 63 (1%) 623 (7%) 66 (1%) 33 68 (1%)

1

 All offenders 27 104 (1%) 873 (9%) 67 (1%) 35 47

 No weapon 25 89 (1%) 666 (7%) 50 (1%) 26 30

 Weapon 2 15 207 (2%) 17 9 17

2

 All offenders 9 22 328 (4%) 32 15 20

 No weapon 9 20 251 (3%) 20 12 11

 Weapon 0 2 77 (1%) 12 3 9

3

 All offenders 19 77 (1%) 609 (7%) 49 (1%) 32 45

 No weapon 19 71 (1%) 441 (5%) 39 23 20

 Weapon 0 6 168 (2%) 10 9 25

4

 All offenders 17 35 310 (3%) 26 20 29

 No weapon 17 31 238 (3%) 16 11 14

 Weapon 0 4 72 (1%) 10 9 15

5

 All offenders 4 27 290 (3%) 38 13 21

 No weapon 4 24 200 (2%) 30 8 11

 Weapon 0 3 90 (1%) 8 5 10

6

 All offenders 12 24 319 (3%) 23 22 25

 No weapon 10 21 224 (2%) 18 16 14

 Weapon 2 3 95 (1%) 5 6 11

7-9

 All offenders 5 39 426 (5%) 34 24 29

 No weapon 5 35 302 (3%) 23 19 16

 Weapon 0 4 124 (1%) 11 5 13

10+

 All offenders 12 35 380 (4%) 47 18 27

 No weapon 10 29 250 (3%) 27 8 16

 Weapon 2 6 130 (1%) 20 10 11

Note: Table uses number and percentage of trafficking offenses where data were available on

role in the offense, criminal history, and weapon possession (Total = 9,334).