A mandatory minimum sentencing statute is a law that requires a judge to impose a statutorily prescribed sentence. It is most commonly understood to mean a statute that requires imposition of a specific minimum term of imprisonment. The statutes that outlaw most federal crimes do not call for a mandatory minimum sentence. However, several statutes that outlaw federal sex offenses insist upon a minimum sentence. Mandatory minimum sentences have been with us since the dawn of the Republic. Yet, with the exception of rape, federal sex crimes and the mandatory minimum terms of imprisonment that accompany some of them are relatively recent arrivals. This is a brief overview of those provisions. In a United States Sentencing Commission survey which addressed mandatory minimum sentences in child pornography cases but not other sex offense cases, a majority of the judges responding thought that the mandatory minimum sentences for production and distribution of child pornography and other child exploitation offenses were generally appropriate. Well over two-thirds, however, considered those for receipt of child pornography too high. The Commission's report on mandatory minimum sentencing statutes noted that its "review of available sentencing data [relating to sex offenses] indicates that further study of these penalties is needed before it can offer specific recommendations in this area." It concluded preliminarily, however, that "the mandatory minimum penalties for certain non-contact child pornography offenses may be excessively severe and as a result are being applied inconsistently." Constitutional Considerations : Defendants sentenced to mandatory minimum terms of imprisonment have challenged them on a number of constitutional grounds ranging from Congress' legislative authority, to cruel and unusual punishment, through ex post facto and double jeopardy, to equal protection and due process. Each constitutional provision defines the outer boundaries that a federal criminal statute must be crafted to honor. Most statutes and the penalties they impose have survived scrutiny. Legislative Authority : The federal government is a creature of the Constitution. It enjoys only such powers as can be traced to the Constitution. All other powers are reserved to the states or to the people. The Constitution grants Congress authority to enact legislation "necessary and proper" to the execution of those powers which it vests in Congress or in any officer or department of the federal government. Among the powers which the Constitution bestows upon Congress are the powers to define and punish felonies committed upon the high seas, to exercise exclusive legislative authority over certain federal territories and facilities, to make rules governing the armed forces, and to regulate interstate and foreign commerce, and to enact legislation necessary and proper for the execution of those and other constitutionally granted powers. Many of the existing federal sex offenses with mandatory minimum sentencing requirements were enacted either pursuant to Congress' legislative authority over crimes occurring on the high seas or within federal enclaves or to its power to regulate the commerce. The Supreme Court has explained that under the commerce clause: "Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce." When a statute falls for want of legislative authority, the penalties it would impose fall with it. This has yet to occur in the area of mandatory minimum sentences. Cruel and Unusual Punishment : The Eighth Amendment bars mandatory capital punishment statutes. And although the case law is somewhat uncertain, the Amendment seems to condemn any punishment that is "grossly disproportionate" to the misconduct for which it is imposed. A sentence imposed under a mandatory minimum federal sex offense statute might be "grossly disproportionate" to the offense under extreme circumstances, but the sentences in most cases are not. Separation of Powers : While "it remains a basic principle of our constitutional scheme that one branch of the Government may not intrude upon the central prerogatives of another," the Supreme Court has observed that "Congress has the power to define criminal punishments without giving the courts any sentencing discretion." Thus, the lower federal courts have regularly upheld mandatory minimum statutes when challenged on separation of powers grounds, and the Supreme Court has found no separation of powers infirmity in the federal sentencing guideline system, a system which might have been thought to produce its own form of mandatory minimums. Equal Protection : The Fifth Amendment due process clause contains an equal protection component that cabins federal action in the manner that the Fourteenth Amendment equal protection clause cabins state action. Equal protection precludes punishing a defendant more severely than others similarly situated, when the distinction is based on some constitutionally suspect classification such as race or alternatively when the distinction has no rational basis. However, a defendant convicted of a federal sex crime has no equal protection claim, simply because he might have been less severely punished under state law or because he might have been charged with a less serious federal offense. Equal protection also prohibits punishment, under a facially neutral statute, that is intended to have an adverse impact on a constitutionally protected class. Yet, the presence of a rational basis for a classification will belie an intent to adversely impact. Recidivism, Ex Post Facto, and Double Jeopardy : Defendants whose prior convictions trigger a mandatory minimum sentencing requirement have occasionally objected on double jeopardy or ex post facto grounds. Double jeopardy bans trying or punishing a defendant twice for the same offense. Ex post facto bars retroactive criminal statutes. As the Supreme Court explained when it rejected the double jeopardy challenge to the California "three strikes" statute: "Historically, we have found double jeopardy protections inapplicable to sentencing proceedings, because the determinations at issue do not place a defendant in jeopardy for an 'offense.' Nor have sentence enhancements been construed as additional punishment for the previous offense; rather, they act to increase a sentence 'because of the manner in which [the defendant] committed the crime of conviction.' An enhanced sentence imposed on a persistent offender thus 'is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes' but as 'a stiffened penalty for the latest crime which is considered to be an aggravated offense because a repetitive one.'" Courts confronted with ex post facto challenges to recidivist statutes have similarly focused upon the "latest crime" and not upon the first. Most mandatory minimum sex offenses appear in one of three chapters of title 18 of the United States Code. Chapter 109A outlaws rape and other forms of sexual abuse and sexual contact when committed in federal enclaves or federal prisons. Chapter 110 outlaws child pornography. Chapter 117 outlaws sexual activities that have travel or commercial attributes. Chapter 109A reaches a relatively wide range of sexual misconduct under relatively narrow jurisdiction circumstances. It applies in the special maritime and territorial jurisdiction of the United States. It applies as well in federal prisons and other institutions where individuals are held in federal custody by contract or agreement with federal authorities, regardless of whether they are located within the territorial jurisdiction of the United States. Within the United States, the "territorial jurisdiction of the United States" refers to those areas over which Congress enjoys state-like legislative jurisdiction. It includes some, or parts of some, military installations, Indian reservations, national parks, and national forests. Outside of the United States, it includes overseas federal facilities and residences with respect to offenses committed by or against U.S. nationals. Felonies proscribed when committed within the territorial jurisdiction of the United States are also proscribed when committed outside the United States by members of the Armed Forces, or employees of the Armed Forces, or those accompanying the Armed Forces. The "maritime jurisdiction of the United States" includes vessels of U.S. registry, vessels owned by Americans, and vessels scheduled to arrive in, or depart from, the United States with respect to crimes committed by or against a U.S. national. Prosecution of the mandatory minimum offenses of chapter 109A and each of the other mandatory minimum federal sex offenses may begin at anytime. There is no applicable statute of limitations, although in rare instances due process may preclude prosecution of a stale complaint. Chapter 109A violations trigger mandatory minimum sentencing provisions when: (1) the offender commits or attempts to commit a sexual act by force or threat or by rendering the victim unconscious or intoxicated (aggravated sexual abuse); (2) a sexual act is committed against a minor under the age of 12, or under the age of 16, if is there is disparity of 4 years or more between the age of the victim and the age of the offender (aggravated sexual abuse of a child); (3) the offender commits or attempts to commit a sexual act by threat or when the victim is incapacitated (sexual abuse); (4) had the sexual contact been a sexual act, it would have been punishable as sexual abuse or aggravated sexual abuse (abusive sexual contact); or (5) the offense is a federal sex offense, including an offense subject to a mandatory minimum sentence, committed against a minor by an offender with a prior state or federal conviction for a sex offense committed against a minor (repeated sexual offense). Definitions : Chapter 109A offenses each involve some form of "sexual act" or "sexual contact." The term "sexual act" includes oral sexual activity as well as sexual penetration by sex organ, foreign object, or digitally. It also covers touching the genitalia of a child under the age of 16 for purposes of humiliation or sexual gratification. The term "sexual contact" includes touching any of the sexually sensitive areas of the body of another for purposes of humiliation or sexual gratification. Aggravated Sexual Abuse : Section 2241 of Chapter 109A proscribes two types of aggravated sexual abuse, each punishable by a mandatory minimum term of imprisonment. First, under the prison and territorial conditions noted above, subsections 2241(a) and (b) outlaw causing, or attempting to cause, another person to engage in a sexual act, when it is accomplished by force, threat, rendering the victim unconscious, or by substantially incapacitating the victim by administering drugs or intoxicants.