A defendant convicted of a federal "serious violent felony" must be sentenced to life imprisonment under the so-called three strikes law, 18 U.S.C. 3559(c), if he has two prior state or federal violent felony convictions or one such conviction and a serious drug offense conviction. In the recently enacted hate crime provisions, Congress instructed the United States Sentencing Commission to report to it on the operation of such mandatory minimum sentencing statutes. Over 60% of the federal district court judges responding to a subsequent commission survey indicated they considered federal mandatory minimum sentences too high. Although the survey asked specifically about sentences under other mandatory minimum statutes, it provided no opportunity for a response focused on section 3559(c). Section 3559(c) requires prosecutors to follow the notice provisions of 21 U.S.C. 851(a), if they elect to ask the court to sentence a defendant under the three strikes provision. Section 851(a), in turn, requires prosecutors to notify the court and the defendant of the government's intention to seek the application of section 3559(c) and the description of the prior convictions upon which the government will rely. Without such notice, the court may not impose an enhanced sentence. The purpose of the requirement "is to ensure the defendant is aware before trial that he faces possible sentence enhancement as he assesses his legal options and to afford him a chance to contest allegations of prior convictions." As long as that dual purpose is served, however, a want of meticulous compliance or complete accuracy will not preclude enhanced sentencing. The objections most often raised are constitutional challenges and those that question the qualifications of prior convictions as predicate offenses. Serious drug offenses for purposes of section 3559(c) consist of (a) federal drug kingpin offenses; (b) the most severely punished of the federal drug trafficking offenses; (c) the smuggling counterpart of the such trafficking offenses; and (d) state equivalents of any of these three. When the prosecution relies upon a state drug trafficking conviction, for example, it must show that the amount of drugs involved warranted treating it as an equivalent. The federal three strikes provision recognizes convictions for two categories of serious violent felonies—one enumerated, the other general. The inventory of enumerated serious violent felonies consists of the federal or state crimes of - murder (as described in section 1111); - manslaughter other than involuntary manslaughter (as described in section 1112); - assault with intent to commit murder (as described in section 113(a)); - assault with intent to commit rape; aggravated sexual abuse and sexual abuse (as described in sections 2241 and 2242); - abusive sexual contact (as described in sections 2244(a)(1) and (a)(2); - kidnapping; - aircraft piracy (as described in section 46502 of Title 49); - robbery (as described in section 2111, 2113, or 2118); - carjacking (as described in 2119); - extortion; - arson; - firearms use; - firearms possession (as described in section 924(c)); or - attempt, conspiracy, or solicitation to commit any of the above offenses. The more general, unenumerated category consists of "any other [state or federal] offense punishable by a maximum term of imprisonment of 10 years or more that has as an element the use, attempted use, or threatened use of physical force against the person of another or that, by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense." There are statutory exceptions for both categories. Among the enumerated offenses, arson offenses do not qualify as predicate offenses, if the defendant can establish by clear and convincing evidence that he reasonably believed the offense posed no threat to human life and that it in fact did not. Moreover, neither robbery, attempted robbery, conspiracy to commit robbery, nor solicitation to commit robbery qualify, if the defendant can establish by clear and convincing evidence that the offense involved neither the use nor threatened use of a dangerous weapon and that no one suffered serious bodily injury as a consequence of the crime. Among the unenumerated offenses, this same no-weapon, no-injury standard applies—those otherwise qualifying 10-year felonies, marked by the use or threatened use of physical force against another, do not qualify as predicate offenses, if the defendant can establish by clear and convincing evidence that no weapon was used, and no injury sustained, in the course of the offense. The question of what constitutes a conviction for an unenumerated "serious violent felony" under section 3559(c) seems to have proven as perplexing as what constitutes a "violent felony" conviction under the Armed Career Criminal Act (ACCA). Recent Supreme Court construction of the term "violent felony" in the ACCA may provide clarification for future cases arising under section 3559(c). In Johnson , Chambers , and Begay , the Court has made it clear that the ACCA's reference to violent felonies refers to purposeful, aggressive use of force capable of inflicting physical pain or injury upon another. One circuit, however, has noted that conviction for a "serious violent felony" includes a state escape conviction, notwithstanding the holding in Chambers that held in another context that a failure-to-report offense lacked the intentional, aggressive use of force necessary to qualify as a violent felony. Defendants have challenged the constitutionality of section 3559(c) on a number of grounds. They have argued (1) that requiring the defendant to prove to a judge by clear and convincing evidence the inapplicability of an injury free conviction offends the principles identified in Apprendi and its progeny; (2) that the section results in the imposition of cruel and unusual punishment in violation of the proscription of the Eighth Amendment; (3) that the mandatory sentencing provision impermissibly intrudes upon the constitutional prerogatives of the federal courts in violation of the separation of powers doctrine; (4) that section 3559(c) results in punishment for prior convictions in violation of the double jeopardy clause of the Fifth Amendment and in some instances of the constitutional prohibition on ex post facto laws; and (5) that, under some circumstances, application of section 3559(c) constitutes a violation of the equal protection component of the due process clause of the Fifth Amendment. Defendants sentenced under section 3559(c) have argued variously (1) that allowing the court, rather than the jury, to determine whether a defendant has sufficient, qualifying predicate offense convictions to warrant imposition of a mandatory minimum sentence violates the defendant's constitutional right to a jury trial; (2) that for the same reason allowing the court, rather than the jury, to determine whether a defendant's predicate offense conviction involved an injury free offense violates the defendant's constitutional right to a jury trial; (3) that requiring the defendant to prove that a predicate offense conviction involved an injury free offense in order to avoid the mandatory minimum sentence shifts the burden of proof from the government in violation of the defendant's constitutional right to due process; and (4) that the use of a clear and convincing standard rather than a proof beyond a reasonable doubt standard to judge whether a conviction involved an injury free offense also violates the defendant's constitutional right to due process. In Apprendi and the cases that followed, the Supreme Court has said that any fact relied upon to enhance a defendant's sentence beyond the maximum otherwise set by statute must be proven to the jury beyond a reasonable doubt unless the defendant waives that right. Those declarations, however, have always included a caveat—except for the fact of a prior conviction. The caveat reflects a pre- Apprendi decision, Alm e ndarez-Torres , in which Court held that the fact of a prior conviction might be treated as a sentencing factor to be determined by the sentencing court without offending the defendant's right to grand jury indictment, or by implication his right to a jury trial and conviction only on proof beyond a reasonable doubt. Pointing to the Apprendi caveat or Alm e ndarez-Torres or both, the lower federal appellate courts have rejected the contention that section 3559(c) offends constitutional norms when it authorizes a sentencing court to determine whether a defendant has prior predicate offense convictions sufficient to trigger the section's mandatory minimum provisions. Almendarez-Torres does not speak to the validity of assigning sentencing courts the task of determining whether a defendant has shown by clear and convincing evidence that his robbery or arson convictions involved offenses free of physical injury or free of the involvement of dangerous weapons. Instead, the courts have rejected constitutional challenges on such grounds by pointing to other pre- Apprendi cases, Patterson and Parke , which held that once the elements of an offense have been constitutionally established a statute may assign the task of determining the existence of mitigating sentencing considerations to the sentencing court under any burden or standard. The Eighth Amendment prohibits infliction of cruel and unusual punishments. Defendants sentenced under section 3559(c) have occasionally contended that a sentence of life imprisonment without the possibility of parole—since there is no parole in the federal criminal justice system for any crime committed after 1987—violates this prohibition. The Supreme Court precedents provide some limited support, but are not as helpful as they might be. In Solem , the Court held that the imposition of a sentence of life imprisonment without the possibility of parole under a state recidivist statute constituted a cruel and unusual punishment when based on three relatively minor property offenses. In Graham , it held that imposition of a sentence of life imprisonment without the possibility of parole constituted a cruel and unusual punishment when imposed upon a child for a nonhomicide offense. Yet in between the two, in Harmelin and Ewing a divided Court found no Eighth Amendment impediment to imposition of a sentence of life imprisonment without the possibility of parole for a serious drug offense or to imposition of a lengthy prison term under a state three strike statute following serious property offense convictions.