Mandatory Minimum Sentencing Legislation in the 113th Congress
Released: 2015-01-22T00:00:00

Introduction

Federal crim es are usually punishable by a statutory maximum term of imprisonment, for example, "imprisoned for not more than 5 years." A surprising number also have statutory minimum terms of imprisonment, for example, "imprisonment which may not be less than 10 years or for life." Under some circumstances, mandatory minimums have proven controversial. Opponents contend that in some instances they can be arbitrary and unduly severe. Proponents contend that they ensure the offenders of the most serious offenses will receive at least some minimum punishment. Legislative proposals in the 113 th Congress reflected both perspectives. Congress adjourned, however, without enacting any of them.

Some would have established or enhanced mandatory minimums for a variety of offenses including violent attacks on law enforcement officers, firearms offenses, reentry into the United States by dangerous aliens, and computer attacks on the nation's critical infrastructure. Others would have repealed or mitigated the impact of existing mandatory minimums, particularly with regard to controlled substance offenses.

A General Exception

Federal courts are required to weigh the factors listed in 18 U.S.C. 3553(a) before sentencing a defendant. The factors include things like "the need for the sentence imposed ... to provide just punishment for the offense" and "the need to avoid unwarranted sentence disparities ..." In doing so, however, the courts may not disregard any applicable statutory mandatory minimums.

H.R. 1695 (Representative Scott (VA)) and S. 619 (Senator Paul) would have permitted federal courts to impose a sentence below an otherwise applicable mandatory minimum when necessary to avoid violating the requirements of Section 3553(a). When exercising the authority, the court would have had to provide the government and the defendant a chance to be heard and to provide a written statement of the Section 3553(a) factors that justify the decision to sentence below the mandatory minimum.

Drug Offenses

The Controlled Substances Act and the Controlled Substances Import and Export Act establish a series of mandatory minimum sentences for violation of their prohibitions. Trafficking—that is, importing, exporting, or possessing with the intent to distribute—a very substantial amount of various highly addictive substances such as more than a kilogram of heroin is punishable by imprisonment for not less than 10 years or more than life. A subsequent conviction carries a sentence of imprisonment for not less than 20 years or more than life. When substantial but lesser amounts are involved, such as 100 grams of heroin, sentences of imprisonment for not less than five years or more than life are called for, and imprisonment for not less than 10 years or more than life in the case of a subsequent conviction.

S. 1410 (Senator Durbin)/ H.R. 3382 (Representative Labrador) would have reduced those mandatory minimum sentences by half. The 20-year mandatory minimums would have become 10-year mandatory minimums; the 10-year mandatory minimums would have become five-year mandatory minimums; and the five-year mandatory minimum would have become a two-year mandatory minimum.

H.R. 3088 (Representative Waters) would have eliminated the mandatory minimum sentences so that each of those offenses would have been punishable by imprisonment for any term of years or for life. Unlike the Durbin bill ( S. 1410 ), the Waters proposal ( H.R. 3088 ) would have eliminated virtually every other controlled substance mandatory minimum as well.

Under present law, when a death or serious bodily injury results from the trafficking in a very substantial amount of a controlled substance like heroin, the mandatory minimum term of imprisonment is 20 years rather than 10 years. When death or serious bodily injury results from trafficking in a substantial but somewhat lower amount of a controlled substance like heroin, the mandatory minimum term of imprisonment is 20 years rather than five years. When an offender has two or more prior controlled substance convictions, trafficking a very substantial amount of a controlled substance like heroin carries a mandatory sentence of life imprisonment. Without regard for the type or amount of the controlled substance, simple possession by an offender with a prior controlled substance conviction is punishable by imprisonment for not less than 15 days and not more than two years. The penalty is imprisonment for not less than 90 days and not more than three years when the offender has two or more prior convictions. H.R. 3088 would have repealed each of these mandatory minimums, but would have left the existing maximum penalties unchanged.

Finally, penalties double when the commission of a controlled substance offense involves distribution to or using a child, or when it involves distribution near a school or other protected location. These offenses often come with a one-year mandatory minimum term of imprisonment, when the underlying distribution crime would not have otherwise carried a mandatory minimum because of the type or amount of the drugs involved. The Waters bill ( H.R. 3088 ) would have disposed of these mandatory minimums as well. It would have left in place, however, a fairly unique provision found in the school distribution, repeat offender provision of 21 U.S.C. 860(b):

Any person who violates section 841(a)(1) of this title ... by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of ... a ... school ... or housing facility owned by a public housing authority, or within 100 feet of a public or private youth center, public swimming pool, or video arcade facility, after a prior conviction under subsection (a) of this section has become final is punishable (1) by the greater of (A) a term of imprisonment of not less than three years and not more than life imprisonment or (B) three times the maximum punishment authorized by section 841(b) of this title....

A summary of the changes in the existing controlled substance mandatory minimum terms of imprisonment, proposed in the Durbin ( S. 1410 )/Labrador ( H.R. 3382 ) (which the Judiciary Committee left unchanged) and Waters ( H.R. 3088 ) proposals, appears in Table 1 .

Attorney General's Approval

The Waters bill ( H.R. 3088 ) also contained a proposal apparently designed to reserve federal prosecutions for the most serious cases. Less serious cases—prosecution for possession or trafficking in amounts less than those necessary to trigger the most severe mandatory minimums (e.g., less than a kilogram of heroin), or in the case of cocaine, less than 500 grams—would have required the Attorney General's written approval.

Safety Valve

The so-called safety valve provision of 18 U.S.C. 3553(f) allows a court to sentence qualified defendants below the statutory mandatory minimum in controlled substance trafficking and possession cases. To qualify, a defendant may not have used violence in the course of the offense. He must not have played a managerial role in the offense if it involved group participation. The offense must not have resulted in a death or serious bodily injury. The defendant must make full disclosure of his involvement in the offense, providing the government with all the information and evidence at his disposal. Finally, the defendant must have a virtually spotless criminal record, that is, not more than 1 criminal history point.

Criminal history points are a feature of the U.S. Sentencing Commission's Sentencing Guidelines. The Guidelines assign points based on the sentences imposed for prior state and federal convictions. For example, the Guidelines assign 1 point for any past conviction that resulted in a sentence of less than incarceration for 60 days; 2 points for any conviction resulting in a sentence of incarceration for at least 60 days; and 3 points for any conviction resulting in a sentence of incarceration of more than a year and a month.

The Sentencing Commission's report on mandatory minimum sentences suggested that Congress consider expanding safety valve eligibility to defendants with 2 or possible 3 criminal history points. The report indicated that under the Guidelines a defendant's criminal record "can have a disproportionate and excessively severe cumulative sentencing impact on certain drug offenders." It explained that the Guidelines are construed to ensure that the sentence they recommend in a given case calls for a term of imprisonment that is not less than an applicable mandatory minimum. In addition, the drug offenses have escalated mandatory minimums for repeat offenders. Moreover, similarly situated drug offenders may be treated differently, because states punish simple drug possession differently and prosecutors decide when to press recidivism qualifications differently.

The Durbin/Labrador bill ( S. 1410 / H.R. 3382 ) would have expanded safety valve eligibility from defendants with no more than 1 criminal history point to those with no more than 3 points. S. 1410 (Judiciary), as voted out of the Senate Judiciary Committee, would have expanded safety valve eligibility from defendants with no more than 1 criminal history point to those with no more than 2 points, if they avoided certain disqualifications. A defendant would have been ineligible for the expanded 2-point criminal history safety valve threshold if he had a prior conviction for a federal firearms offense, sex offense, crime of terrorism, RICO predicate offense, or conspiracy to use or invest drug profits.

Cocaine Sentencing

Originally, the Controlled Substances Act made no distinction between powder cocaine and crack cocaine (cocaine base). The 1986 Anti-Drug Abuse Act introduced a 100-1 sentencing ratio between the two, so that trafficking in 50 grams of crack cocaine carried the same penalties trafficking in 5,000 grams of powder cocaine. The 2010 Fair Sentencing Act replaced it with the present 500-28 ratio, so that trafficking in 280 grams of crack cocaine carries the same penalties as 5,000 grams of powder cocaine. It also abolished the mandatory minimum for simple crack cocaine possession that the 1988 Anti-Drug Abuse Act had established. The Sentencing Commission subsequently revised the Sentencing Guidelines to reflect the change and made the modification retroactively applicable at the discretion of the sentencing court.

H.R. 2372 (Representative Scott (VA)) would have eliminated the sentencing distinction between powder and crack cocaine by eliminating the cocaine base specific references. Trafficking in cocaine would have carried the same penalties regardless whether the substance was powder or crack cocaine.

Fair Sentencing Retroactivity

The Fair Sentencing Act reductions apply to offenses committed thereafter. They also apply to offenses committed beforehand when sentencing occurs after the time of enactment. Federal courts have discretion to reduce a sentence imposed under a Sentencing Guideline that was subsequently substantially reduced. The Fair Sentencing Act, however, does not apply to sentences imposed prior to its enactment, and it does not apply in sentence reduction hearings triggered by new Sentencing Guidelines. In such proceedings, the courts remain bound by the mandatory minimums in effect prior to enactment of the Fair Sentencing Act.

Three proposals would have addressed the Fair Sentencing Act's retroactive application. One, H.R. 2369 (Representative Scott (VA)), would have begun with an expression of concern that some district courts may not be applying the act to pending cases. It would have then made it clear that the act's amendments applied to cases in which sentencing had yet to occur and to cases in which an appellate court remanded for sentencing consistent with the act. It would also have allowed a court to reduce, consistent with the act, a previously imposed sentence for crack cocaine possession or trafficking.

The others, S. 1410 (Judiciary) and S. 1410 (Senator Durbin)/ H.R. 3382 (Representative Labrador), would also have permitted a court to reduce such sentences, but would have limited the authority to instances in which the defendant had not been previously granted or denied a similar reduction.

Marijuana

The Controlled Substances Act prohibits cultivation, distribution, possession with intent to distribute, and simple possession of marijuana. Those prohibitions carry with them mandatory minimum sentences when substantial amounts of marijuana are involved. Thus, cultivation, distribution, or possession with intent to distribute " 1000 kilograms (2,204.6 lbs.) or more of a mixture or substance containing a detectable amount of marihuana, or 1,000 or more marihuana plants regardless of weight" is punishable by " a term of imprisonment which may not be less than 10 years or more than life and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life, . . .. If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years and not more than life imprisonment and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment. ... If any person commits a violation of this subparagraph ... after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release and fined in accordance with the preceding sentence."

If the offense instead involves a less amount, that is, less than 1000 kilograms, but "100 kilograms (220.46 lbs.) or more of a mixture or substance containing a detectable amount of marihuana, or 100 or more marihuana plants regardless of weight," the offense is punishable by "a term of imprisonment which may not be less than 5 years and not more than 40 years and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life ... If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years and not more than life imprisonment and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment.... "

H.R. 499 (Representative Polis), the Ending Federal Marijuana Prohibition Act of 2013, would have eliminated the federal prohibitions on marijuana generally and would have specifically repealed the mandatory minimum sentences that attend offenses involving substantial amounts of marijuana.

The impact of other marijuana-related proposals would have turned on the laws of a given state. Thus, H.R. 1523 (Representative Rohrabacher), the Respect State Marijuana Laws Act of 2013, would have reached the federal marijuana mandatory minimums thresholds, only if state law (recreational or medicinal) permitted cultivation, distribution, or possession with intent to distribute marijuana in the amounts (more than 220.46 lbs./2,204.6 lbs.) necessary to trigger the mandatory minimum penalties. If for no other reason than market size, proposals such as the States' Medical Marijuana Patient Protection Act, H.R. 689 (Representative Blumenauer)—which would have shielded medical marijuana production, distribution, and use—may seem less likely to have legalized the amounts of marijuana necessary to have washed away the federal mandatory minimums.

Firearms

Human Trafficking, Stolen Firearms, Crimes of Violence, and Drug Trafficking

Section 924(c), in its current form, imposes one of several different minimum sentences when a firearm is used or possessed in furtherance of another federal crime of violence or of drug trafficking. The mandatory minimums, imposed in addition to the sentence imposed for the underlying crime of violence or drug trafficking, vary, depending upon the circumstances:

imprisonment for not less than five years, unless one of higher mandatory minimums below applies; imprisonment for not less than seven years, if a firearm is brandished; imprisonment for not less than 10 years, if a firearm is discharged; imprisonment for not less than 10 years, if a firearm is a short-barreled rifle or shotgun or is a semi-automatic weapon; imprisonment for not less than 15 years, if the offense involves the armor piercing ammunition; imprisonment for not less than 25 years, if the offender has a prior conviction for violation of Section 924(c); imprisonment for not less than 30 years, if the firearm is a machine gun or destructive device or is equipped with a silencer; and imprisonment for life, if the offender has a prior conviction for violation of Section 924(c) and if the firearm is a machine gun or destructive device or is equipped with a silencer.

Some of the proposals in the 113 th Congress would have enlarged the coverage of 924(c); others would have curtailed it. The most common proposal would have added alien smuggling to violent crimes and drug trafficking as predicate offenses under the section: H.R. 4961 (Representative McCaul); S. 2561 (Senator McCain); S. 2619 (Senator McCain); S. 2743 (Senator Cornyn); S. 2773 (Senator Cornyn).

H.R. 2405 (Representative Scott (VA)) would have stripped Section 924(c) of its mandatory minimum penalties. Each of its not-less-than penalties would have become not-more-than penalties. So, for example, possession of a shotgun in furtherance of a crime of violence or of drug trafficking would have been punishable by imprisonment for not more than 10 years. Possession of a machine gun in furtherance of such an offense would have been punishable by imprisonment for not more than 25 years, and so forth.

The Scott bill would also have appended in large measure the procedure used in Controlled Substance Act cases to establish the existence of a qualifying prior conviction, 21 U.S.C. 851. It would, however, have dropped the provision in Section 851 that affords the defendant the right to have the question presented to the grand jury in the case of serious enhancements. It would also have abandoned the provision that bars questioning the validity of remote convictions.

H.R. 722 (Representative King (NY)) would have added two years to each of these base mandatory minimums of Section 924(c)(1)(A), if the firearm were stolen or had had its serial number defaced. Thus, use of a stolen firearm or one with a defaced serial number during or in relation to a federal crime of violence or drug trafficking would have been punishable by imprisonment for not less than seven years. If a stolen or defaced firearm were brandished under such circumstances, the mandatory minimum would have been nine years. If a stolen or defaced firearm were discharged, the mandatory minimum would have been 12 years.

Straw Purchasers

Federal law now punishes false statements in conjunction with a firearm's purchase under two sections. Section 924(a)(1) imposes a term of imprisonment of not more than five years for false statements relating to information required for licensing or record-keeping purposes. Section 922(a)(6) outlaws false statements in the acquisition of a firearm. Section 924(a)(2) makes the offense punishable by imprisonment for not more than 10 years.

H.R. 404 (Representative Schiff) would have established a two-year mandatory minimum term of imprisonment for violation of either false statement proscription if the offense involved two or more firearms and an intent to subsequently transfer them to an ineligible person.

Handguns

H.R. 117 (Representative Holt) would have required the Attorney General to establish a system of handgun registration and licensing. The system would have been inapplicable in states that already had a comparable system as long as the state outlawed possession of unlicensed or unregistered handguns or the failure to complete required firearms safety training. Elsewhere, possession without a federal license or of an unregistered handgun would have been punishable by imprisonment for not less than 15 years.

International Weapons Trafficking

Several federal laws outlaw international weapons trafficking, among them the International Emergency Economic Powers Act; Trading With the Enemy Act; Arms Export Control Act; and the federal smuggling statute. S. 1410 (Judiciary) would have established mandatory minimum penalties for violation of provisions under certain circumstances.

The International Emergency Economic Powers Act (IEEPA) authorizes the President to impose economic boycotts on foreign nations, entities, and individuals who pose an unusual and extraordinary threat to the national security, foreign policy, or the economy of the United States. Presidents have exercised the authority to proscribe transactions with nations that have sponsored terrorism, with terrorist organizations, and in the interest of stemming the proliferation of weapons of mass destruction. Willful violations, attempted violations, or conspiracies to violate any license, order, regulation, or proscription under IEEPA are punishable by imprisonment for not more than 20 years and a fine of not more than $1 million.

S. 1410 (Judiciary) would have amended IEEPA to establish a five-year mandatory minimum term of imprisonment for such offense when the crime involved either exporting goods or services for the foreign development of weapons of mass destruction or providing defense articles or services to foreign terrorist organizations, states sponsoring terrorism, or to individuals or entities subject to economic sanctions on the basis of concerns over international terrorism or the proliferation of the weapons of mass destruction.

Trading With the Enemy Act (TWEA) prohibits commerce with the enemies of the United States or those affiliated with them, without executive branch approval. As in the case of IEEPA, anyone who willfully violates TWEA or any license, regulation, or order issued under it is punishable by imprisonment for not more than 20 years and a fine of not more than $1 million.

S. 1410 (Judiciary) would have created a five-year mandatory minimum term of imprisonment for anyone convicted of willfully violating TWEA or attempting or conspiring to do so. The mandatory minimum would have been limited to cases involving trade in defense articles or services with nations that sponsor terrorism, foreign terrorist organizations, or individuals or entities subject to economic sanctions on the basis of concerns over international terrorism or the proliferation of the weapons of mass destruction. The minimums would also have applied to exporting goods and services for the foreign development of weapons of mass destruction.

The Arms Export Control Act regulates weapons exports. Regulatory violations are punishable by imprisonment for not more than 20 years and a fine of not more than $1 million. Moreover, as a general matter, smuggling goods out of the United States is punishable by imprisonment for not more than 10 years and a fine of not more than $250,000 (not more than $500,000 for organizations).

S. 1410 (Judiciary) would have set a five-year mandatory minimum term of imprisonment for violations of either the general smuggling statute or the Arms Export Control Act under much the same circumstances as would have pertained in the case of IEEPA and TWEA violations: shipments to terrorist organizations; to state sponsors of terrorism; to individuals and entities associated with terrorism; or to those assisting in the foreign development of weapons of mass destruction.

Sex Offenses and Domestic Violence

S. 1410 (Judiciary) would have added new mandatory minimum terms of imprisonment for various federal sex offenses and for interstate domestic violence.

Sex Offenses

When committed within the special maritime or territorial jurisdiction of the United States or within federal prisons, federal law proscribes sexual abuse and aggravated sexual abuse. Offenders are punishable by imprisonment for any term of years or for life. Engaging in sexual activity with a ward or with a child between 12 and 16 years of age within the special maritime and territorial jurisdiction of the United States or in a federal prison is a federal crime as well, and is punishable by imprisonment for not more than 15 years.

S. 1410 (Judiciary) would have amended each of these provisions by adding a five-year mandatory minimum sentence of imprisonment for violation of any of the three, but leaving the maximum permissible sentences in place. It would have left in place the 30-year mandatory minimum term of imprisonment that applies to sexual abuse of a child under 12 years of age.

Federal law also punishes by death, or imprisonment for any term of years or for life, murder committed in the course of one of these offenses or during the course of a violation of 18 U.S.C. 1591 (sex trafficking of children or by force), 2251 (sexual exploitation of children), 2251A (buying or selling children for sexual purposes), or 2260 (overseas production of child pornography to be imported into the United States). S. 1410 (Judiciary) would have added a five-year mandatory minimum term of imprisonment in the case of such murders.

Interstate Domestic Violence

Interstate travel for the purposes of visiting violence upon a spouse, intimate partner, or dating partner is punishable according to the extent of the injuries inflicted. Where death results, the penalty is imprisonment for life or any term of years. Where maiming results, the penalty is imprisonment for not more than 20 years. Where serious bodily injury results, the penalty is imprisonment for not more than 10 years.

S. 1410 (Judiciary) would have established a 10-year mandatory minimum term of imprisonment in cases where death results. Rather than create a mandatory minimum in maiming and serious bodily injury cases, the bill would have increased the maximum penalties for those offenses to 25 years and 15 years, respectively.

Aggravated Computer Abuse

Federal law prohibits various forms of computer abuse in 18 U.S.C. 1030, ranging from espionage to hacking to computer fraud to damaging computer systems.

H.R. 1468 (Representative Blackburn) would have created a separate crime for anyone who, during and in relation to a violation of Section 1030 substantially impaired or attempted to impair the operation of a critical infrastructure computer system or an associated critical infrastructure. The bill defined the term "critical infrastructure computer" to mean

a computer that manages or controls systems or assets vital to national defense, national security, national economic security, public health or safety, or any combination of those matters, whether publicly or privately owned or operated, including - (A) oil and gas production, storage, conversion, and delivery systems; (B) water supply systems; (C) telecommunication networks; (D) electrical power generation and delivery systems; (E) finance and banking systems; (F) emergency services; (G) transportation systems and services; and (H) government operations that provide essential services to the public.

The offense would have been punishable by imprisonment for not less than three years or more than 20 years.

Some of the federal statutes calling for imposition of a minimum term of imprisonment suggest the possibility of a fine as an alternative to imprisonment. For example, the penalty for trafficking in 1,000 grams or more of heroin is "a term of imprisonment which may not be less than 10 years or more than life ... a fine not to exceed ... $10,000,000 ... or both." The bill would have suggested the possibility of a fine as an alternative to imprisonment as well. Experience with other mandatory minimums, coupled with implementing Sentencing Guidelines, suggests that this alternative may have been more hypothetical than real.

Immigration Offenses

Human Smuggling

Several bills in the 113 th Congress would have established mandatory minimum sentences of imprisonment for smuggling individuals into the country under certain circumstances. Thus, H.R. 4961 (Representative McCaul), S. 2561 (Senator McCain), and S. 2619 (Senator McCain) would have punished such smuggling with imprisonment for not less than 5 years nor more than 10 years, if the offense involved restraint or confinement of the smuggled individual.

S. 2619 would have also punished such smuggling with imprisonment for not less than 5 years nor more than 30 years, if the offense involved an involuntary sexual act; and with imprisonment for not less than 5 years or more than for life, if the offense involved a death.

S. 2743 (Senator Cornyn) and S. 2773 (Senator Cornyn) would have outlawed fraud in connection with the transfer of custody of an unaccompanied alien child. The offense would have been punishable by imprisonment for not less than 15 years, if it involved sexual exploitation of the child; and imprisonment for not less than a year, otherwise.

Illegal Reentry

Foreign nationals who reenter or attempt to reenter the United States after having been deported, excluded, or otherwise removed are punishable by imprisonment for not more than two years. If the alien was removed following conviction for an aggravated felony, the penalty is increased to imprisonment for not more than 20 years. If removed following conviction for a misdemeanor involving drugs or crimes against the person or for a lesser felony, the penalty is imprisonment for not more than 10 years. The same 10-year maximum term of imprisonment attends reentry or attempted reentry following removal prior to completion of service of imprisonment for a non-violent felony.

Those who aid and abet the commission of a federal crime are subject to the same penalties as those who actually commit the underlying offenses. Those who conspire to violate federal law are liable not only for conspiracy but for any crimes committed by one of their conspirators in furtherance of the plot.

H.R. 457 (Representative Issa) would have established mandatory minimum penalties for each of these reentry offenses. The minimums would have been pegged at half the maximum. Thus, simple reentry would have carried a one-year mandatory minimum term. Reentry following an aggravated felony conviction would have been punishable with a mandatory minimum of 10 years. Finally, the mandatory minimums for the reentry offenses with 10-year maximums would have been set at five years.

The Issa bill would also have made accessory and conspirator liability more specific. Anyone who aided or abetted an alien's unlawful reentry or conspired to accomplish it would have been subject to the same penalties including mandatory minimums as the reentering alien.

Violence Against Public Servants

Federal law protects federal judges and employees against murder, manslaughter, attempted murder or manslaughter, and assault. With the exception of first degree murder, which is punishable by death or imprisonment for life, none of the prohibitions carry a mandatory minimum term of imprisonment. Flight to avoid prosecution is also a federal crime, but it does not come with a mandatory minimum term of imprisonment either.

H.R. 1577 (Representative Poe) and S. 698 (Senator Cornyn) would have expanded the class of protected public servants; increased the penalties associated with homicides committed against them; established mandatory minimum terms of imprisonment for killing or assaulting them; and created a new flight-to-avoid-prosecution offense for fugitives accused of such crimes, punishable by a mandatory minimum term of imprisonment.

Homicide

Federal law outlaws killing any federal officer or employee, including federal judges, during or on account of the performance of their duties. It also protects anyone assisting them. The penalties imposed depend on the nature of the homicide:

first degree murder: death or life imprisonment; second degree murder: imprisonment for any term years or for life; voluntary manslaughter: imprisonment for not more than 15 years; involuntary manslaughter: imprisonment for not more than eight years; attempted murder: imprisonment for not more than 20 years; attempted manslaughter: imprisonment for not more than seven years; and conspiracy to murder: imprisonment for any term of years or for life.

Federal law outlaws the murder of state or local officers or employees assisting in a federal investigation. Offenders are punishable by death or life imprisonment. It also outlaws the murder of a state correctional officer by a federal prisoner or while the officer is transporting a prisoner in interstate commerce. Offenders are punishable by imprisonment for not less than 20 years or for life or by death. Murder of a federal, state, or local law enforcement officer in furtherance of a violation of the Controlled Substances Act or the Controlled Substances Import and Export Act is punishable as well by imprisonment for not less than 20 years or for life or by death.

H.R. 1577 / S. 698 would have established 30-year mandatory minimum terms of imprisonment for killing, attempting to kill, or conspiring to kill three classes of public servants: (1) federal judges and federal law enforcement officers, regardless of whether the crime occurred during or on account of the performance of their duties; (2) federally funded public servants (state, local, territorial, and tribal law enforcement officers, firefighters, chaplains, rescue squad and ambulance crew members) during or on account of the performance of their official duties; and (3) former federal judges, former law enforcement officers, and former federally funded public servants, killed on account of performance of their official duties.

In addition to the 30-year mandatory minimum, the offense would have carried the prospect of imprisonment for life and, if a killing occurred, of the death penalty.

Flight to Avoid Prosecution

It is a federal crime punishable by imprisonment for not more than five years to travel in interstate or foreign commerce for the purpose of avoiding state or federal prosecution.

H.R. 1577 / S. 698 would have created an additional flight statute that would have proscribed flights to avoid prosecution for killing, attempting to kill, or conspiring to kill a federal judge, federal law enforcement officer, or federally funded public servant. The offense would have been punishable by imprisonment for any term of years not less than 10 years.

Assaulting a Federal Officer or Employee

Section 111 prohibits assaulting a federal officer or employee during or on account of his or her official duties. Simple assault is punishable under the provision by imprisonment for not more than one year. If the assault results in physical contact or is committed with the intent to commit another felony, the penalty increases to imprisonment for not more than eight years. If the assault involves the use of a deadly or dangerous weapon or results in bodily injury, the penalty becomes imprisonment for not more than 20 years.

If the assault resulted in substantial bodily injury (temporary but substantial disfigurement or loss of bodily or mental capacity) to a federal judge or federal law enforcement officer, H.R. 1577 / S. 698 would have made the offense punishable by imprisonment for not less than five years or more than 30 years. If the assault resulted in serious bodily injury (risk of death, extreme pain, etc.) or involved possession or use of a dangerous weapon, H.R. 1577 / S. 698 would have made the offense punishable by imprisonment for any term of years not less than 10 years or for life.