This is a brief discussion of the law associated with the mandatory minimum sentencing provisions of federal controlled substance (drug) laws and drug-related federal firearms and recidivist statutes. These mandatory minimums, however, are not as mandatory as they might appear. The governme nt may elect not to prosecute the underlying offenses. Federal courts may disregard otherwise applicable mandatory sentencing requirements at the behest of the government. The federal courts may also bypass some of them for the benefit of certain low-level, nonviolent, offenders with virtually spotless criminal records under the so-called "safety valve" provision. Finally, in cases where the mandatory minimums would usually apply, the President may pardon the offenders or commute their sentences before the minimum term of imprisonment has been served. Be that as it may, sentencing in drug cases, particular mandatory minimum drug sentencing, has contributed to an explosion in the federal prison population and attendant costs. The federal inmate population at the end of 1976 was 23,566. On January 4, 2018, the federal inmate population was 183,493. As of September 30, 2016, 49.1% of federal inmates were drug offenders and 72.3% of those were convicted of an offense carrying a mandatory minimum. In 1976, federal prisons cost $183.914 million; in 2016, federal prisons cost over $6.750 billion. Table 1 below describes the mandatory minimum sentencing provisions for various drug and drug-related offenses. Section 841(a) outlaws knowingly or intentionally manufacturing, distributing, dispensing, or possessing with the intent to distribute or dispense controlled substances except as otherwise authorized by the Controlled Substances Act. The government may establish the knowledge element of Section 841(a) in either of two ways. First, the "knowledge requirement may be met by showing that the defendant knew he possessed a substance listed on the [controlled substance] schedules." Second, "[t]he knowledge requirement may also be met by showing that the defendant knew the identity of the substance he possessed. Take, for example, a defendant who knows that he is distributing heroin but does not know that heroin is listed on the schedules." As long as the government proves the defendant knows he was dealing in heroin, it need not prove that the defendant knew the particular type or quantity of the controlled substance he intended to distribute. When a defendant claims no guilty knowledge, the circumstances may warrant a willful blindness instruction to the jury. The willful blindness instruction, sometimes called the deliberate ignorance or "ostrich head in the sand" instruction, is warranted if "(1) the defendant claims lack of knowledge; (2) the evidence would support an inference that the defendant consciously engaged in a course of deliberate ignorance; and (3) the proposed instruction, as a whole, could not lead the jury to conclude that an inference of knowledge is mandatory." Manufacture : For purposes of Section 841(a), "'manufacture' means the production … or processing of a drug, and the term 'production' includes the manufacture, planting, cultivation, growing, or harvesting of a controlled substance." Distribute or Dispense : The Controlled Substances Act defines the term "distribute" broadly. The term encompasses any transfer of a controlled substance other than dispensing it. It reaches both sales and transfers without compensation. To "dispense" is "to deliver a controlled substance to an ultimate user …by, or pursuant to the lawful order of, a practitioner…" The Controlled Substances Act outlaws practitioners' proscribing controlled substances for other than legitimate medical purposes. Possession with Intent to Distribute or Dispense : The government may satisfy the possession element with evidence of either actual or constructive possession. "Actual possession is the knowing, direct, and physical control over a thing." "Constructive possession exists when a person knowingly has the power and intention at a given time to exercise dominion and control over an object either directly or through others." The escalating mandatory minimums that apply to offenders with "a prior conviction for a felony drug offense" extend to offenses classified as misdemeanors under state law, but punishable by imprisonment for more than a year. They also apply even though the underlying state felony conviction has been expunged. On the other hand, there is apparently a division among the circuits over whether the government's failure to comply with the procedure for establishing a prior conviction, and therefore to alert the defendant to the prospect of an enhanced mandatory minimum, precludes imposition of the enhanced sentence. Sentencing : Sentencing for violations of Section 841(a) is governed by the nature and volume of the substance involved, the defendant's criminal record, and injuries attributable to the offense. The most severe penalties are reserved for high-volume trafficking of the eight substances thought most susceptible to abuse and least appropriate for medicinal use without tight controls and that are assigned to Controlled Substance Schedules I and II. The eight substances are heroin, powder cocaine, cocaine base (crack), PCP, LSD, fentanyl, methamphetamine, and marijuana. Each comes with one set of mandatory minimums for trafficking in a very substantial amount listed in Section 841(b)(1)(A) and a second, lower set of mandatory minimums for trafficking in a lower but still substantial amount listed in Section 841(a)(1)(B). The first set (841(b)(1)(A) level) features the following thresholds: heroin - 1 kilogram; powder cocaine - 5 kilograms; crack - 280 grams; PCP - 100 grams; LSD - 10 grams; fentanyl - 400 grams; methamphetamine - 50 grams; marijuana - 1,000 kilograms. The second set (841(b)(1)(B) level) has thresholds that are one-tenth of those of the higher set: heroin - 100 grams; powder cocaine - 500 grams; crack - 28 grams; PCP - 100 grams; LSD - 1 gram; fantanyl - 40 grams; methamphetamine - 5 grams; marijuana - 100 kilograms. A Section 841(a) violation involving one of the eight drugs at the higher 841(b)(1)(A) level is punishable by imprisonment for: not less than 10 years; not less than 20 years if the offense results in death or serious bodily injury or if the offender has a prior felony drug conviction; and a mandatory term of life imprisonment if the offender has a prior felony drug conviction and the offense resulted in death or serious bodily injury or if the offender has two or more prior felony drug convictions. A Section 841(a) violation involving one of the eight drugs at the lower 841(b)(1)(B) level is punishable by imprisonment for: not less than 5 years; not less than 10 years, if the offender has a prior felony drug conviction; not less than 20 years if the offense results in death or serious bodily injury; and a mandatory term of life imprisonment if the offender has a prior felony drug conviction and the offense resulted in death or serious bodily injury. A Section 841(a) violation involving one of the eight drugs in lesser amounts, or some other Schedule I or II drug, or a date rape drug is punishable by imprisonment for: not less than 20 years if death or serious bodily injury results; and life if the offender has a prior felony drug conviction and death or serious bodily injury results. The felony drug convictions that trigger the sentencing enhancement include federal, state, and foreign convictions. The "serious bodily injury" enhancement is confined to bodily injuries which involve "(A) a substantial risk of death; (B) protracted and obvious disfigurement; or (C) protracted loss or impairment of the function of a bodily member, organ, or mental faculty." And, the "if death results" enhancement is available only if the drugs provided by the defendant were the "but-for" cause of death; it is not available if the drugs supplied were merely a contributing cause. The same "but for" standard presumably applies with equal force to the "serious bodily injury" enhancement. Attempt, Conspiracy, and Aiding and Abetting : The mandatory minimums of Section 841 apply with equal force to those who attempt to possess with intent to distribute; who conspire to do so; or who aid and abet a violation of Section 841 by others. To prove an attempt to violate Section 841(a), "the government must establish beyond a reasonable doubt that the defendant (a) had the intent to commit the object crime and (b) engaged in conduct amounting to a substantial step towards its commission. For a defendant to have taken a substantial step, he must have engaged in more than mere preparation, but may have stopped short of the last act necessary for the actual commission of the substantive crime." Conspiracy is an agreement to commit a crime. "To establish that a defendant conspired to distribute drugs under 21 U.S.C. § 846, the government must prove: (1) that there was a conspiracy, i.e., an agreement to distribute the drugs; (2) that the defendant knew of the conspiracy; and (3) that the defendant intentionally joined the conspiracy." The existence of the conspiracy need not be shown by written agreement or any other form of direct evidence, but may be inferred from the circumstances. Moreover, each of the conspirators need not be fully aware of the roles or activities of all of their cohorts. Each conspirator, however, is punishable for the foreseeable offenses committed in furtherance of the common scheme. Although it technically demonstrates an agreement to distribute a controlled substance, proof of a small, one-time sale of a controlled substance is ordinarily not considered sufficient for a conspiracy conviction.