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 . The se mandatory minimums, however, are not as mandato ry as they might appear. The government 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 u nder the so-call ed " safety valve " provision . Finally, in cases where the mandatory minimums would usually apply, the P resident may pardon offenders or commute their sentences before the minimum term of imprisonment has been served. Be that as it may, sentencing in drug cases , particular ly mandatory minimum drug sentencing , has contributed to a n explosion in the federal prison population and attendant costs . Thu s, t he federal inmate population at the end of 1976 was 23,566, and at the end of 1986 it was 36,042. On January 4, 2018 , the federal inmate population was 18 3 , 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 1986, $550.014 million; and in 2016, $6.751 billion (est.). Federal mandatory minimum sentencing statutes have existed since the dawn of the Republic. When the first Congress assembled, it enacted several mandatory minimums, each of them a capital offense. The drug mandatory minimums are of more recent origins. The first arrived in 1914, when Congress established a mandatory minimum of five years for the manufacture of opium for smoking purposes. Shortly after mid-century, Congress began adding to the number of drug-related mandatory minimums. Prior to enactment of the Controlled Substances Act and the Controlled Substances Import and Export Act in 1970, federal law included mandatory minimums for violations of the narcotics or marijuana tax regimes; smuggling narcotics or marijuana; distributing heroin to a child; possession of narcotics aboard a U.S. vessel; and violations of federal drug laws using communications facilities. The 1970s legislation eliminated them all. Left in their place were only the mandatory minimums in the continuing criminal enterprise (drug kingpin) section. Then, in 1984, Congress enacted the Sentencing Reform Act that created the United States Sentencing Commission and authorized it to promulgate then binding sentencing guidelines. In many instances, the resulting Guidelines operated essentially, but briefly, to establish a mandatory minimum term of imprisonment where none had existed before. Soon thereafter, Congress began to repopulate federal drug laws with mandatory minimums, the bulk of which Congress inserted using the Anti-Drug Abuse Act of 1986. The 1986 legislation, however, included substantial assistance provisions which allow the courts to disregard the mandatory minimums in the case of cooperative defendants. In addition, shortly thereafter, Congress instructed the Sentencing Commission to provide it with a detailed report on federal mandatory minimum statutes. The commission's 1991 report observed that from 1984 to 1990 four drug-related statutes accounted for roughly 94% of the mandatory minimum offenses regularly prosecuted. The commission's initial report was quickly followed by a Department of Justice study that concluded that a substantial number of those sentenced under federal mandatory minimums were nonviolent, first-time, low-level drug offenders. Congress responded with the safety valve provisions of 18 U.S.C. § 3553(f), under which the court may disregard various drug mandatory minimums and sentence an offender within the applicable sentencing guideline range as long as the offender was a low-level, nonviolent participant with no prior criminal record who has cooperated fully with the government. The hate crime legislation enacted in 2009 directed the U.S. Sentencing Commission to submit a second report on federal mandatory minimums. The commission presented its second report in October 2011. A number of things had changed between the first and second Commission reports. Sentencing under the Guidelines had been in place for only a relatively short period of time when the first report was written. By the time of the second report, the number of defendants sentenced by federal courts had grown to almost three times the number sentenced under the Guidelines when the commission wrote its first report. The judicial landscape has changed as well. When the commission issued its first report, the Guidelines were considered binding upon sentencing judges. After the Supreme Court's Booker decision and its progeny, the Guidelines became but the first step in the sentencing process. In addition, the Fair Sentencing Act, passed in 2010, reduced the powder cocaine-crack cocaine ratio from 100 to 10 to roughly 18 to 1. The second Commission report recommended that Congress consider expanding eligibility for the safety valve, and adjusting the scope, severity, and the prior offenses that trigger the recidivist provisions under firearm statute and the two principal drug statutes, (21 U.S.C. §§ 841 and 960). In October 2017, the commission issued a third report devoted exclusively to mandatory minimum penalties for drug offenses, in which it made no recommendations. Instead, the report provided an extensive statistical analysis, summarized in ten findings: 1. Drug mandatory minimum penalties continued to result in long sentences in the federal system. 2. Mandatory minimum penalties continued to have a significant impact on the size and composition of the federal prison population. 3. Offenses carrying a drug mandatory minimum penalty were used less often, as the number and percentages of offenders convicted of an offense carrying a mandatory minimum penalty has decreased since fiscal year 2010. 4. While fewer offenders were convicted of an offense carrying a mandatory minimum penalty in recent years, the offenses of those who were tended to be more serious. 5. Drug mandatory minimum penalties applied more broadly than Congress may have anticipated. 6. Statutory relief plays a significant role in the application and impact of drug mandatory minimum penalties, and results in significant reduced sentences when applied. 7. Additionally, drug mandatory minimum penalties appear to provide criminal defendants with a significant incentive to provide substantial assistance to the government pursuant to 18 U.S.C. § 3553(e) and the related guideline provisions of USSG §5K1.1. 8. However, neither the statutory safety valve provision at 18 U.S.C. § 3553(f), nor the substantial assistance provision of 18 U.S.C. § 3553(e) fully ameliorate the impact of drug mandatory minimum penalties on relatively low-level offenders. 9. There were significant demographic shifts in the data relating to mandatory minimum penalties. 10. Although likely due in part to an older age at release, drug trafficking offenders convicted of an offense carrying a drug mandatory minimum penalty had a lower recidivism rate than those drug trafficking offenders not convicted of such an offense. Although each house devoted considerable attention to mandatory minimum sentencing and associated issues, the 114th Congress ended without consensus. Several proposals introduced in the 115th Congress address some of the same issues. 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 practitioner's 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 those offenses classified as misdemeanors under state law, but punishable by imprisonment for more than a year. They also apply even if the underlying state conviction has been expunged.