Mandatory Minimums

"The courts submitted approximately 300,000 documents reporting 64,565 felony and Class A misdemeanor cases to the Commission. This represents a decrease of 11,973 cases from fiscal year 2019 and reflects the effect of the COVID-19 pandemic on the work of the courts.

"The race of federal offenders remained largely unchanged from prior years. In fiscal year 2020, 58.1 percent of all offenders were Hispanic, 19.3 percent were White, 19.1 percent were Black, and 3.4 percent were of another race. Non-U.S. citizens accounted for 46.2 percent of all offenders, an increase of 1.6 percentage points from the prior year."

"As reflected in these figures, the difference between the average guideline minimum and the average sentence imposed has generally widened since the Booker and Gall Periods, suggesting an overall decline in the influence of the guidelines over time. Although the difference continued to widen in the Post-Report Period, it appears to have stabilized after peaking in 2014. In fact, the analysis of the years that followed from 2015 through 2017 demonstrated a small gradual decrease in the difference between the average guideline minimum and average sentence imposed in those years.

"This trend is first demonstrated in the two-line graph, which shows a gradual widening of the spread between the average guideline minimum and average sentence imposed. In the Booker Period, the average sentence imposed was 8.7 months lower than the average guideline minimum. In the Gall Period, the average sentence imposed was 9.9 months lower. And in the Post-Report Period, the average sentence imposed was 13.2 months lower. However, in the most recent years of the Post-Report Period, average sentences imposed generally paralleled average guideline minimums—that is, where the average guideline minimum increased or decreased, so did the average sentence imposed — which suggests a stabilization in the influence of the guidelines."

"Immigration cases accounted for the largest single group of offenses in fiscal year 2020, comprising 41.1 percent of all reported cases, an increase from the 38.4 percent of the cases reported in the prior year. Cases involving drugs, firearms, and fraud were the next most common types of offenses after immigration cases. Together these four types of offenses accounted for 86.4 percent of all cases reported to the Commission in fiscal year 2020.

"Among drug cases, offenses involving methamphetamine were most common, accounting for 45.7 percent of all drug cases.

"The average length of imprisonment in methamphetamine cases was unchanged from fiscal year 2019 at 95 months. However, the average sentence imposed decreased across the other major drug types: in crack cocaine cases (from 78 to 74 months), powder cocaine cases (from 70 to 66 months), heroin cases (from 70 to 66 months), and marijuana cases (from 31 to 29 months).

"Two-thirds (66.9%) of drug offenders were convicted of an offense carrying a mandatory minimum penalty, compared to 65.7 percent of drug offenders in fiscal year 2019."

"• In the wake of Booker and Gall and continuing into the Post-Report Period, the difference between the average guideline minimum and average sentence imposed widened for the federal caseload overall, indicating that the influence of the guidelines generally decreased after Booker rendered them advisory. However, this trend has not continued in the most recent years of the Post-Report Period, suggesting that the influence of the guidelines may have stabilized.

"• The influence of the guidelines continued to vary substantially depending on the type of offense throughout the Post-Report Period. As indicated by the difference between the average guideline minimum and average sentence imposed, the guidelines continued to exert a strong influence on sentences imposed in firearms and illegal reentry offenses, a more moderate influence on sentences imposed in fraud and drug offenses, and a weakening influence in non-production child pornography offenses and career offender cases.

"• Major amendments by the Commission to the drug trafficking and illegal reentry guidelines appear to have strengthened their influence during the most recent years of the Post-Report Period. The difference between the average guideline minimum and average sentence imposed for these two guidelines narrowed after the Commission reduced the Drug Quantity Table by two offense levels in 2014 and comprehensively revised the illegal reentry guideline in 2016.

"• The guidelines generally exert a greater influence on sentences imposed in cases in which judicial discretion could be meaningfully assessed. Excluding cases in which judicial discretion could not be meaningfully assessed narrowed the difference between the average guideline minimum and the average sentence imposed for the federal caseload overall, and for all but one individual offense type studied, across every time period studied. This narrowing was largely attributable to the exclusion of cases with substantial assistance departures, which resulted in an average sentence reduction of 51.8 percent. Sentence reductions for substantial assistance require a government motion and afford substantial weight to the government’s evaluation."

"[D]rug mandatory minimum penalties continue to have a significant impact on the sentencing of drug offenders and on the federal prison population. The data demonstrates that offenders convicted of an offense carrying a drug mandatory minimum penalty continue to receive longer sentences than offenders not convicted of an offense carrying a drug mandatory minimum. These longer sentences, coupled with the fact that drug offenses are the most common offenses carrying mandatory minimum penalties, considerably affect the prison population. At the end of the last fiscal year, nearly half of all federal inmates were drug offenders and nearly three-quarters of those drug offenders in prison were convicted of an offense carrying a drug mandatory minimum penalty. The data also demonstrates that the effects of mandatory minimum penalties on sentencing occur for drug offenders across the culpability spectrum and regardless of an offender’s role in the offense."

"While fentanyl and fentanyl analogue offenders remain a small proportion of the overall federal drug trafficking caseload (5.8%), the number of fentanyl offenders and fentanyl analogue offenders has increased sharply over the last several years. As reflected in Figure 10, the prevalence of fentanyl was flat for the ten years from 2005 through 2014. Over the next five years, the trend shifted. Beginning in 2015, the number of fentanyl offenders more than doubled each fiscal year. By fiscal year 2019, the Commission recorded 886 fentanyl drug trafficking offenders, a 3,592 percent increase from 24 offenders in fiscal year 2015.¹²³

"The number of fentanyl analogue offenders also has increased precipitously in recent years. The number of such offenders was also largely stable from fiscal year 2012, the year the Commission first recorded a fentanyl analogue offender, through fiscal year 2016. Since fiscal year 2016, however, fentanyl analogue offenders increased 5,725 percent, from four offenders in fiscal year 2016 to 233 offenders in fiscal year 2019."

"Race and citizenship patterns for fentanyl and fentanyl analogue offenders (Figure 13) differed compared to other drug offenders. Most notably, Black offenders constituted a greater proportion of fentanyl and fentanyl analogue offenders (40.5% and 58.9%, respectively) than other drug offenders (26.5%). Conversely, Hispanic offenders represented a smaller proportion of both fentanyl and fentanyl analogue offenders (33.9% and 9.1%, respectively), compared to other drug offenders (44.9%). U.S. citizens were more prominent in fentanyl (85.1%) and fentanyl analogue (96.1%) offenders compared to other drug offenders (78.3%).

"When focusing just on the comparison of fentanyl and fentanyl analogue offenders, Black offenders represented the largest group of both fentanyl (40.5%) and fentanyl analogue (58.9%) offenders. However, the representation of Hispanic offenders varied significantly, with Hispanics accounting for 33.9 percent of fentanyl offenders compared to 9.1 percent of fentanyl analogue offenders. This difference among the two groups in part reflects that fentanyl analogue offenders were somewhat more likely to be U.S. citizens (96.1%) compared to fentanyl offenders (85.1%)."

"Drug quantity varied considerably between fentanyl and its analogues.¹³⁴ The drug quantity for fentanyl offenders in fiscal year 2019 ranged from 100 micrograms to 36 kilograms. The average drug weight for the fentanyl offenders was 1.7 kilograms, and the median drug weight was 160 grams (Figure 15).

"The drug quantity for fentanyl analogue offenders ranged from 70 milligrams to 62.1 kilograms. The average amount of fentanyl analogue trafficked was 764 grams and the median weight was 75 grams.

"These weights are not limited to the quantity of pure fentanyl or one of its analogues involved in an offense¹³⁵ as these substances are often mixed with other drugs or cutting agents,¹³⁶ or are pressed into pills with inert fillers. As discussed above, under the drug trafficking guidelines, the entire weight of any mixture or substance containing a detectable amount of the controlled substance is assigned to the controlled substance that results in the greater offense level.¹³⁷"

"• In fiscal year 2016, over half (52.8%) of offenders convicted of an offense carrying a drug mandatory minimum penalty faced a mandatory minimum penalty of ten years or greater.

"• In fiscal year 2016, the average sentence for offenders who were convicted of an offense carrying a drug mandatory minimum penalty was 94 months of imprisonment, more than double the average sentence (42 months) for drug offenders not convicted of an offense carrying a mandatory minimum penalty.

"• Offenders who qualified for relief received significantly lower sentences (64 months) than those offenders who remained subject to a mandatory minimum penalty at sentencing (126 months). Even when offenders received relief from a mandatory minimum penalty, the average sentence (64 months) was still one and half times greater than the average sentence for those not convicted of an offense carrying a drug mandatory minimum.

"• The guidelines also contributed to the sentence length as nearly three-quarters of offenders who remained subject to a drug mandatory minimum penalty (72.6%) had a guideline minimum that exceeded the statutorily required minimum, and the majority of offenders (58.8%) who remained subject to a drug mandatory minimum penalty received a sentence above the statutorily required minimum."

"• As of September 30, 2016, 49.1 percent of federal inmates were drug offenders.

"• Among drug offenders in federal prison as of September 30, 2016, almost three-quarters (72.3%) were convicted of an offense carrying a mandatory minimum penalty, and more than half (50.4%) remained subject to that penalty at sentencing."

"• Less than half (44.7%) of all drug offenders sentenced in fiscal year 2016 were convicted of an offense carrying a mandatory minimum penalty, which was a significant decrease from fiscal year 2010 when approximately two-thirds (66.1%) of drug offenders were convicted of such an offense. In fact, the number of offenders convicted of a drug mandatory minimum penalty has decreased by 44.7 percent since fiscal year 2010, falling from 15,831 offenders to 8,760 such offenders in fiscal year 2016.

"• The downward trend in the prevalence of offenders convicted of such penalties occurred across all drug types, but the largest decrease occurred in the context of crack cocaine offenders. Following the passage of the Fair Sentencing Act of 2010, the percent of crack cocaine offenders convicted of an offense carrying a mandatory minimum penalty has fallen from 80.1 percent in fiscal year 2010 to 46.6 percent in fiscal year 2016."

"Convictions for offenses carrying a drug mandatory minimum penalty were more likely to involve the use of a weapon, as evidenced by the application of a guideline enhancement for having a weapon involved in the offense (17.4% in fiscal year 2016 compared to 12.5% in fiscal year 2010) or a conviction for a firearms offense carrying a mandatory minimum (5.4% in fiscal year 2016 compared to 5.1% in fiscal year 2010). Similarly, convictions for offenses carrying a drug mandatory minimum penalty were also more likely to have resulted in bodily injury (4.1% in fiscal year 2016 compared to 1.9% in fiscal year 2010).

"• Offenders convicted of such offenses were also more likely to have played a leadership role, as evidenced by application of a guideline adjustment for aggravating role (11.9% in fiscal year 2016 compared to 7.7% in fiscal year 2010), and were less likely to receive a mitigating role adjustment (12.1% compared to 16.3%).

"• Consistent with increased likelihood of the above aggravating factors, the rate at which offenders convicted of an offense carrying a drug mandatory minimum penalty received relief through the statutory safety valve decreased from 35.1 percent in fiscal year 2010 to 30.0 percent in fiscal year 2016."

"• While some legislative history leading up to passage of the Anti-Drug Abuse Act of 1986 suggests that “major” traffickers would be subject to the ten-year drug mandatory minimum penalty and “serious” traffickers would be subject to the five-year penalty, they often apply to offenders who perform relatively low level functions. For example, nearly one-third (32.2%) of Couriers and more than one-quarter of Mules (25.4%) were convicted of such offenses.

"• While the rate of conviction for an offense carrying a drug mandatory minimum penalty tended to decrease with the culpability level of the offender as reflected by their function, a significant percentage of offenders in every function were nevertheless convicted of such offenses. In fact, a majority of offenders in seven of the ten function categories (including some lower-level functions) were convicted of an offense carrying a drug mandatory minimum penalty.

"• Many of the offenders convicted of an offense carrying a drug mandatory minimum penalty had little or no criminal history. Almost half (45.9%) were in Criminal History Category I — 37.7 percent of all offenders convicted of an offense carrying a mandatory minimum received no criminal history points under the guidelines, while 8.1 percent received one criminal history point. On the other end of the spectrum, 14.2 percent of all offenders convicted of an offense carrying a mandatory minimum penalty were in Criminal History Category VI."

"• More than half (51.6%) of offenders convicted of an offense carrying a drug mandatory minimum penalty received relief at sentencing.

"• In fiscal year 2016, 21.8 percent of offenders convicted of a drug mandatory minimum penalty qualified for relief under the safety valve, 21.5 percent received relief for providing substantial assistance, and 8.2 percent received relief for both safety valve and substantial assistance.

"• Offenders who received safety valve relief (57 months) or provided substantial assistance (81 months) received significantly lower sentences than those offenders who remained subject to a drug mandatory minimum penalty at sentencing (126 months). Offenders who received both safety valve relief and provided substantial assistance had even lower average sentences (41 months)."

"• In fiscal year 2016, offenders convicted of an offense carrying a drug mandatory minimum penalty were nearly twice as likely to have provided substantial assistance to the government as those not convicted of such an offense (29.8% compared to 15.2%).

"• Nearly a quarter of offenders facing a five-year drug mandatory minimum penalty (22.2%) received a substantial assistance reduction, while 36.0 percent of offenders facing a ten-year mandatory minimum penalty and more than half of offenders facing a mandatory minimum penalty of 20 years or more received a substantial assistance reduction (52.3%)."

"• As they did in fiscal year 2010, Hispanic offenders continued to represent the largest group of offenders (51.9%) convicted of an offense carrying a drug mandatory minimum penalty in fiscal year 2016. However, other demographic data has shifted.

"• White offenders and Black offenders shared the highest average sentence among offenders convicted of an offense carrying a drug mandatory minimum penalty (103 months) in fiscal year 2016. White offenders also had the highest average sentence among both offenders relieved of the application of a drug mandatory minimum penalty at sentencing (69 months) and offenders subject to a drug mandatory minimum penalty at sentencing (136 months). This is a change from fiscal year 2010, when Black offenders had the longest average sentences in each of the above categories.

"• While Black offenders convicted of an offense carrying a drug mandatory minimum penalty continued to receive relief from the drug mandatory minimum penalty least often, the gap between Black offenders and White offenders has narrowed. In fiscal year 2016, 64.5 percent of Black offenders convicted of an offense carrying a drug mandatory minimum penalty remained subject to that penalty compared to 50.8 percent of White offenders convicted of such an offense (a difference of 13.7 percentage points). By comparison, the difference was 24.2 percentage points in fiscal year 2010 (59.5% of Black offenders convicted of an offense carrying a drug mandatory minimum penalty compared to 35.3% of White offenders)."

"For the last four years, immigration cases have been the largest single type of federal offenses. This trend continued in fiscal year 2012, where immigration cases accounted for 32.2 percent of all federal cases, despite a decrease of 3,169 cases in the total number of immigration cases reported to the Commission. This decrease is the first since fiscal year 2006 and represents a 10.7 percent decrease in this type of case from the prior fiscal year. Even with this decrease, the number of immigration cases has increased by 97.0 percent over the past decade, and represents a much larger portion of the overall federal case load in fiscal year 2012.
"The number of drug cases has been relatively stable over the last five fiscal years. In fiscal year 2012, drug cases accounted for 30.2 percent of all cases. Firearms cases were 9.8 percent of the caseload in fiscal year 2012, a slight increase from the year before but less than the 10.9 percent of the caseload that these cases represented in fiscal year 2008. The proportion of fraud cases over that period also was relatively stable at 10.5 percent in fiscal year 2012, but has increased slightly from 9.8 percent in fiscal year 2008."

"The average sentence length of offenders who remained subject to a mandatory minimum penalty at sentencing was 138 months, over twice the average sentence of offenders receiving relief from such a penalty (66 months). The average sentence for offenders not convicted of any offense carrying a mandatory minimum penalty was 28 months."

"More than half (54.9%, n=3,054) of all powder cocaine offenders were Hispanic. A similar proportion of Hispanic offenders were convicted of an offense carrying a mandatory minimum penalty (58.5%, n=2,595) and remained subject to a mandatory minimum penalty at the time of sentencing (55.2%, n=947).
"The sentencing of Black powder cocaine offenders was different. Approximately one quarter of all powder cocaine offenders (26.7%, n=1,486) are Black. Although a comparable proportion of powder cocaine offenders were also convicted of an offense carrying a mandatory minimum penalty (24.5%, n=1,087), the proportion of Black powder cocaine offenders subject to the mandatory minimum at sentencing was higher, at almost one-third (32.4%, n=555). In fact, Black offenders have the highest such rate, while the proportions of all other demographic groups subject to the mandatory minimum decrease relative to their proportion of all powder cocaine cases. The majority of Black powder cocaine offenders (64.7%, n=703) did not qualify for safety valve relief from the mandatory minimum penalty due to their criminal history.⁶⁴⁹"

"The overwhelming majority of crack cocaine offenders convicted of an offense carrying a mandatory minimum were male (92.7%, n=3,620)658 and were United States citizens (97.2%, n=3,796).659 More than three-quarters (78.6%, n=3,728) of all crack cocaine offenders were Black. Black offenders constituted a similar proportion (78.5%, n=3,059) of those crack cocaine offenders convicted of an offense carrying a mandatory minimum penalty. The proportion of Black crack cocaine offenders subject to a mandatory minimum penalty at the time of sentencing (78.7%, n=1,961) was comparable to their proportion in the overall crack cocaine offender population and the population of crack cocaine offenders convicted of an offense carrying a mandatory minimum penalty."

"The demographic characteristics for methamphetamine offenders convicted of an offense carrying a mandatory minimum penalty differ from those observed for most other major drug types in two ways. First, more than half (51.3%, n=1,776) of methamphetamine offenders convicted of an offense carrying a mandatory minimum penalty are White and another 42.6 percent (n=1,476) are Hispanic. Black methamphetamine offenders constitute only 2.2 percent (n=77) of the methamphetamine offenders convicted of an offense carrying a mandatory minimum penalty. This is the smallest proportion of Black offenders for any major drug type.⁶⁷⁵ In contrast, Other Race offenders constitute 3.8 percent (n=132) of the methamphetamine offenders convicted of an offense carrying a mandatory minimum penalty, which is the largest proportion of Other Race offenders for any drug type.
"Second, female offenders accounted for 18.1 percent (n=627) of all methamphetamine offenders convicted of an offense carrying a mandatory minimum penalty. Although this not a large percentage, it is higher than both the proportion of female offenders in the overall population of drug offenders convicted of an offense carrying a mandatory minimum penalty (10.2%, n=1,611) and the proportion of female offenders convicted of an offense carrying a mandatory minimum penalty for any other drug type.⁶⁷⁶"

"Slightly more than half of heroin offenders convicted of an offense carrying a mandatory minimum penalty were Hispanic (61.3%, n=672) and about one-quarter (23.4%, n=256) were Black. These percentages shift slightly when examining heroin offenders subject to the mandatory minimum penalty at sentencing. Approximately half of heroin offenders subject to the mandatory minimum penalty at sentencing were Hispanic (51.7%, n=247) and about one-third (35.8%, n=171) were Black. The shift is primarily attributable to criminal history differences between the two. The proportion of offenders in each criminal history category who were Black increased with the criminal history category. Conversely, the proportion of offenders in each criminal history category who were Hispanic decreased with the increased criminal history category.⁶⁸⁸"

"Approximately two-thirds (66.1%, n=15,831) of the 23,964 drug offenders in fiscal year 2010 were convicted of an offense carrying a mandatory minimum penalty. More than one-quarter (28.1%, n=4,447) of drug offenses carrying a mandatory minimum penalty involved powder cocaine, followed by crack cocaine (24.7%, n=3,905), methamphetamine (21.9%, n=3,466), marijuana (17.2%, n=2,725), heroin (6.9%, n=1,098) and other drugs (1.1%, n=172). See Figure 8-1.
"The application of mandatory minimum penalties varies greatly by the type of drug involved in the offense. For example, in fiscal year 2010, a mandatory minimum penalty applied in 83.1 percent (n=3,466) of drug cases involving methamphetamine. In contrast, such a penalty applied in less than 45 percent (n=2,725) of marijuana cases. With respect to other drugs (such as PCP and LSD), such a penalty applied in 11.4 percent (n=172) of cases."

"Of the 20,115 drug offenders sentenced in fiscal year 2015, slightly less than one-half (47.9%) were convicted of an offense carrying a mandatory minimum penalty.
"• Half (50.7%) of drug offenders convicted of an offense carrying a mandatory minimum penalty remained subject to that penalty at sentencing.
"• The average sentence for drug offenders subject to a mandatory minimum penalty at sentencing was 124 months (with relief, 62 months) compared to 39 months for drug offenders not convicted of an offense carrying a mandatory minimum penalty.
"• Drug offenders were convicted of an offense carrying a mandatory minimum penalty most often in powder cocaine cases (65.7%). In contrast, such a penalty applied least often in marijuana cases (30.6%).
"• Crack cocaine offenders remained subject to mandatory minimum penalties at sentencing most often (in 36.9% of crack cocaine cases involving a conviction for an offense carrying a mandatory minimum penalty). In contrast, 11.3% of marijuana offenders remained subject to a mandatory minimum penalty at sentencing."

"For powder cocaine offenders, the most common functions for offenders were High Level Supplier/Importer (24.1%), Courier (21.1%) and Wholesaler (20.7%). The least common functions were Grower/Manufacturer (0.0%), Manager (2.0%) and Supervisor (2.1%).⁶⁵⁵"

"For crack cocaine offenders, the most common functions for offenders were Street-Level Dealer (47.0%) and Wholesaler (27.9%). The least common functions were Mule (0.2%), Supervisor (0.5%), High Level Supplier/Importer (0.5%), and Manager (0.7%).⁶⁶⁷
"Over three-quarters (77.8%) of Street-Level Dealer offenders were convicted of an offense carrying a mandatory minimum penalty. Wholesaler offenders were convicted of an offense carrying a mandatory minimum penalty at a rate of 93.5 percent in crack cocaine cases. High-Level Supplier/Importer, Organizer/Leader, Manager, Supervisor, and Mule offenders were convicted of statutes carrying a mandatory minimum penalty in all cases."

In Fiscal Year 2015, according to the US Sentencing Commission:
"In 22.2% of all cases, the offender was convicted of an offense carrying a mandatory minimum penalty.
"• Drug trafficking offenses accounted for over two-thirds (66.2%) of the offenses carrying a mandatory minimum penalty, followed by firearms (15.4%) and child pornography offenses (8.8%).
"• Almost 40 percent (39.2%) of offenders convicted of an offense carrying a mandatory minimum were relieved of the mandatory minimum penalty because:
"•• 20.3% received relief solely by providing the government with substantial assistance;²
"•• 13.0% received relief solely through the statutory safety valve provision,3 and
"•• 5.8% received relief through both the statutory safety valve provision and by providing substantial assistance to the government.
"• After relief was applied, 60.8% of these offenders remained subject to a mandatory minimum penalty at sentencing, reflecting 13.5% of all federal offenders."

"As of the end of fiscal year 2010, there were 191,757 offenders in BOP custody, of whom 111,460 (58.1%) were convicted of an offense carrying a mandatory minimum penalty. Of the 191,757 offenders in BOP custody, 75,579 (39.4%) were subject to that mandatory minimum penalty at sentencing."

"The Rockefeller drug laws are the first of the more notable laws passed to address the growing problem of drug abuse in the U.S. in the modern era.⁵⁹ The laws, named for New York Governor Nelson Rockefeller, were fairly simple: a conviction for a crime of possessing illegal drugs would result in a mandatory minimum sentence, with no flexibility.⁶⁰ Felonies classified as A-1 felonies would result in a sentence of 15 years to life in prison.⁶¹ Other lesser felonies would result in lighter sentences, but the mandatory minimum sentencing was harsh in most cases.⁶²"

"Interviews with prosecutors and defense attorneys in thirteen districts across the country revealed widely divergent practices with respect to charging certain offenses that triggered significant mandatory minimum penalties. These differences were particularly acute with respect to practices regarding filing notice under section 851 of title 21 of the United States Code for drug offenders with prior felony drug convictions, which generally doubles the applicable mandatory minimum sentence. In some districts, the filing was routine. In others, it was more selectively filed, and in one district, it was almost never filed at all.¹² Our analysis of the data bore out these differences. For example, in six districts, more than 75 percent of eligible defendants received the increased mandatory minimum penalty for a prior conviction, while in eight other districts, none of the eligible drug offenders received the enhanced penalty.¹³
"Similarly, the Commission’s interviews revealed vastly different policies in different districts in the charging of cases under section 924(c) of title 18 of the United States Code for the use or possession of a firearm during a crime of violence or drug trafficking felony. In that statute, different factors trigger successively larger mandatory minimum sentences ranging from five years to life, including successive 25-year sentences for second or subsequent convictions. The Commission found that districts had different policies as to whether and when they would bring charges under this provision and whether and when they would bring multiple charges under the section, which would trigger far steeper mandatory minimum penalties.¹⁴ The data bears out these geographic variations in how these mandatory minimum penalties are applied. In fiscal year 2012, just 13 districts accounted for 45.8 percent of all cases involving a conviction under section 924(c) even though those districts reported only 27.5 percent of all federal criminal cases that year. In contrast, 35 districts reported 10 or fewer cases with a conviction under that statute.
"When similarly situated offenders receive sentences that differ by years or decades, the criminal justice system is not achieving the principles of fairness and parity that underlie the SRA [Sentencing Reform Act]."

"In fiscal year 2010, more than half (54.4%, n=8,619) of drug offenders convicted of an offense carrying a mandatory minimum penalty received relief from the mandatory minimum penalty. Approximately one quarter (26.1%, n=4,136) of the drug offenders received relief through operation of the safety valve alone. Drug offenders who did not qualify for the safety valve but who provided substantial assistance to the government accounted for 19.3 percent (n=3,062) of all drug offenders convicted of an offense carrying a mandatory minimum penalty. An additional 9.0 percent (n=1,421) of drug offenders received relief from the mandatory minimum penalty by qualifying for application of both the safety valve and substantial assistance provisions. See Figure 8-4.
"The rate at which offenders received relief from the mandatory minimum penalty through these provisions varied by race, gender, and citizenship.⁶²⁹ For example, White offenders qualified for some form of relief from a mandatory minimum penalty most often, with 63.7 percent (n=2,328) of all White offenders convicted of an offense carrying such a penalty obtaining relief from the penalty. Black offenders qualified for relief from mandatory minimum penalties least often, in 39.4 percent (n=1,890) of cases in which they were convicted of an offense carrying such a penalty.
"Almost three-fourths of all female drug offenders (73.0%, n=1,176) received relief from the mandatory minimum penalty, compared to just over half (52.3%, n=7,443) of male offenders. Non-citizen offenders received relief from the mandatory minimum penalty more often (69.5%, n=3,300) than United States citizens (48.0%, n=5,317)."

"Though it is still too early to make a final judgment, RAND found that three strikes and truth-in-sentencing laws have had little significant impact on crime and arrest rates. According to the Uniform Crime Reports, states with neither a three strikes nor a truth-in-sentencing law had the lowest rates of index crimes, whereas index crime rates were highest in states with both types of get-tough laws."

"After eleven years, it should be obvious that the system has failed and that it cannot be fixed -- even by the Supreme Court -- because the criminal justice system has been distorted: the enhanced power of the prosecutor in sentencing has diminished the traditional role of the judge. The result has been even less fairness, and a huge rise in the prison population."

"Along with the stepped-up pace of arrests in the 1980s, legislatures throughout the country adopted harsher sentencing laws in regard to drug offenses. The federal system, in particular, led the way with the passage of the Anti-Drug Abuse Act of 1986 and the Anti-Drug Abuse Act of 1988. Among a number of provisions, these laws created a host of severe mandatory minimum sentencing laws for drug offenses and affected the calibration of the federal Sentencing Guidelines, which were being formulated simultaneous to these statutory changes. The result of these developments was to remove discretion from the sentencing judge to consider the range of factors pertaining to the individual and the offense that would normally be an integral aspect of the sentencing process, thereby increasing the number of individuals in federal court exposed to a term of incarceration for a drug offense."

"Mandatory minimum sentence laws appear to be contributing to increased sentence length, making more emphatic a trend in drug cases that predated their enactment. Mandatory minimum statutes and the guidelines seem also to have narrowed the difference in the sentences imposed for equally serious offenses involving marijuana and opiates, and to have red uced the importance of age and the distinction between leadership and middleman roles in the sentencing decision. In all instances, the narrowing of differences stems from more severe sentencing of the previously advantaged group.
"Mandatory minimum sentence laws do not seem to have ensured that all of those involved in the proscribed behaviors receive at least the minimum term: just under one-half of those who would apparently be eligible received lesser sentences. Further, despite the laws' emphasis on offense behavior, sentences still vary by offender characteristics. As in the past, the least culpable offenders, and offenders who are women, continue to receive less severe sentences than others involved in similar offenses. Further, both black and Hispanic offenders now receive noticeably more severe sentences than their white counterparts.
"The latter trend suggests that there may be questions to be considered concerning the impact of shifting discretion affecting sentencing from the court to the prosecutor's office."

Basic Data - Sentencing Guidelines

"Congress charged the [US Sentencing] Commission with promulgating guidelines that are 'consistent with all pertinent provisions' of federal law³³⁸ and with providing sentencing ranges that are 'consistent with all pertinent provisions of title 18, United States Code.'³³⁹ To that end, the Commission has incorporated mandatory minimum penalties into the guidelines since their inception, and has continued to incorporate new mandatory minimum penalties as enacted by Congress.340
"The Commission generally has established guideline ranges that are slightly above the mandatory minimum penalty for offenders convicted of offenses carrying a mandatory minimum penalty, but its methods of incorporating mandatory minimum penalties into the guidelines have varied over time, with the benefit of the Commission’s continuing research, experience, and analysis.³⁴¹ The Commission historically has achieved this policy by setting a base offense level for Criminal History Category I offenders that corresponds to the first guidelines range on the sentencing table with a minimum guideline range in excess of the mandatory minimum."

"The United States Sentencing Commission¹ received information on 84,360 federal criminal cases in which the offender was sentenced in fiscal year 2012.² Among these cases, 84,173 involved an individual offender and 187 involved a corporation or other 'organizational' offender."

"The vast majority of federal cases involve an individual defendant. Over the last decade, the number of these cases has generally increased each year; however, in fiscal year 2012 the number of cases reported to the Commission fell by 2,028. This represents a decrease of 2.4 percent from fiscal year 2011.
"For the last decade, cases involving immigration, drugs, fraud, or firearms have been the most common federal criminal cases and make up the vast majority of federal felonies and Class A misdemeanors. In fiscal year 2012, these crimes accounted for 82.7 percent of all cases reported to the Commission."

"Drug offenses were the second most common federal crime. In fiscal year 2012, 26,560 offenders were convicted of a drug crime, the majority involving the manufacture, sale, or transportation of a drug.⁵ Of these, 1,451 offenders were convicted of an offense involving simple possession of a drug.
"Offenses involving cocaine, in either powder form or base (crack) form, were the most common drug crimes, accounting for 38.0 percent of the offenders sentenced under the drug guidelines. These cases were almost evenly split between the two forms of the drug until fiscal year 2008. After that year, crack cocaine cases began decreasing steadily from 24.4 percent in fiscal year 2008 to 13.8 percent in fiscal year 2012. After cocaine cases (powder and crack cases combined), marijuana offenses were the next most common, representing 27.6 percent of all drug crimes. In fact, marijuana cases were more prevalent than either crack cocaine or powder cocaine cases individually. Drug offenses involving methamphetamine represented 19.5 percent of all drug crimes. Heroin cases were the least common of the major drug offenses, accounting for 8.6 percent of all drug crimes.
"Most drug offenders were United States citizens, but the percentage of drug offenders who are citizens varied widely depending on the type of drug involved in the offense. For example, 97.8 percent of crack cocaine offenders were United States citizens, while only 51.1 percent of marijuana offenders were United States citizens."

"The race of drug offenders varied even more widely by the type of drug involved in the offense. More than 45 percent (46.2%) of all drug offenders convicted in federal court were Hispanic, while Black offenders comprised 25.9 percent of all drug offenders and White offenders 25.3 percent of all drug offenders. Yet, in crack cocaine cases, 82.6 percent of those convicted were Black, and in methamphetamine cases 48.1 percent of the offenders were White."

"Mandatory minimum sentences enacted by Congress played a large part in determining the sentence for these offenders, either outright or through the impact of these statutes on the structure of the guidelines. In fiscal year 2012, crack cocaine offenders and powder cocaine offenders were convicted of an offense that provided for the imposition of a mandatory minimum sentence at rates of 64.0 and 76.4 percent, respectively.⁶ Powder cocaine offenders obtained relief from a mandatory minimum sentence at a higher rate (32.3%) through the statutory 'safety valve' exception to such sentences, which requires courts to sentence an offender without regard to any otherwise applicable mandatory minimum punishment when certain conditions are met.⁷ In contrast, 7.6 percent of crack cocaine offenders obtained this relief.
"This difference is largely due to the differing criminal histories of powder cocaine and crack cocaine trafficking offenders. In fiscal year 2012, 58.3 percent of powder cocaine offenders were assigned to Criminal History Category I (offenders with a criminal history score under the sentencing guidelines of zero or one) while only 21.5 percent of crack cocaine offenders were assigned to that category. Only offenders assigned to Criminal History Category I are eligible to receive the benefit of the safety valve.
"Overall, crack cocaine offenders continue to have, on average, a more serious criminal history than any other category of drug offender.⁸ Crack cocaine offenders were assigned to the most serious criminal history category (CHC VI) in 26.8 percent of all crack cocaine cases. In contrast, powder cocaine offenders were assigned to CHC VI in only 8.8 percent of cases. By comparison, 14.7 percent of heroin offenders were assigned to CHC VI and 10.3 percent of methamphetamine offenders were assigned to CHC VI. Offenders convicted of marijuana offenses generally had the least serious criminal histories, with 66.2 percent assigned to CHC I and only 3.4 percent to CHC VI.⁹"

"The vast majority of convicted defendants plead guilty. In fiscal year 2012, 97.0 percent of all offenders did so, the highest rate since fiscal year 2002.
"When offenders pleaded guilty, 45.9 percent received a sentence below the applicable sentencing guideline range, either at the request of the government, at their own request, or initiated by the court. Approximately 62 percent (62.4%) of these below range sentences were requested by the government, usually because the defendant had provided substantial assistance to the government or had agreed to have his or her case handled as part of an early disposition program.
"In the 3.0 percent of cases in which the offender did not plead guilty, 37.1 percent received a sentence below the guideline range. Only 6.1 percent of these below range sentences were requested by the government.
"Most federal offenders convicted of a felony or Class A misdemeanor received a sentence of incarceration. In fiscal year 2012, 7.1 percent of offenders received a sentence of probation (i.e., where no type of confinement was imposed), a rate that over time has decreased from a high of 14.8 percent in 1993. Another 2.9 percent were sentenced to periods of both probation and some type of confinement, and 2.8 percent were sentenced to a combination of imprisonment and community confinement, such as in a half-way house or through home confinement."

"As previously noted, various drug offenses carry a mandatory minimum. For such offenses, the mandatory minimum precludes judges from sentencing at a lower guideline range minimum or from granting a downward departure that might otherwise be available, unless one of two statutory provisions applies. First, a judge may impose a sentence below the applicable mandatory minimum if the government (the federal prosecutor) files a motion with the court for such sentencing relief because of the defendant's 'substantial assistance' in the investigation or prosecution of another person. The discretion to make such a motion rests solely with the prosecutor. Second, in the absence of a substantial assistance motion, the 'safety valve' provision affords relief from any otherwise applicable mandatory minimum sentence for drug offenders who have minimal criminal history (i.e., no more than 1 criminal history point); were not violent, armed, or high-level participants; and provided the government with truthful information regarding the offense. In these cases, the court is directed by statute to impose a sentence pursuant to the sentencing guidelines without regard to a mandatory minimum."

Laws and Policies

"As indicated above, the authority once possessed by judges to decide on sentences within broad guidelines has, in the case of mandatory minimums, not been narrowed so much as it has been transferred to prosecutors. Though judges are required to impose specified sentences in certain situations, prosecutors are generally not required to charge a count carrying a mandatory minimum if other options are available. Prosecutors may use this flexibility as a bargaining chip in securing cooperation or a guilty plea for a lesser charge."

"The prosecution of many drug offenders is discretionary and can be subject to either state or federal jurisdiction. Frequently, state cases are transferred to federal prosecutors in order for the defendant to face stiffer penalties in the federal system. The potential of facing a mandatory minimum or a Guideline range sentence that is significantly longer than what one would face in state court increases the likelihood that a defendant will accept a plea bargain."

"If Congress decides to exercise its power to direct sentencing policy by enacting mandatory minimum penalties, the Commission believes that such penalties should (1) not be excessively severe, (2) be narrowly tailored to apply only to those offenders who warrant such punishment, and (3) be applied consistently. Sentencing data and interviews with prosecutors and defense attorneys indicate that mandatory minimum penalties that are considered excessively severe tend to be applied inconsistently."

"Prior to the Sentencing Reform Act, federal judges possessed almost unlimited authority to fashion an appropriate sentence within a broad statutorily prescribed range and 'decided [] the various goals of sentencing, the relevant aggravating and mitigating circumstances, and the way in which these factors would be combined in determining a specific sentence.'²³² Sentences were limited only by statutory minimums and maximums. Because each judge was 'left to apply his own notions of the purposes of sentencing,' the federal sentencing system exhibited 'an unjustifiably wide range of sentences to offenders convicted of similar crimes.'²³³ Neither party had any meaningful right of appellate review. In addition, the parole system, which applied to only a portion of those sentenced and which permitted the release of prisoners based on inconsistent ideas regarding the potential for rehabilitation, exacerbated the lack of uniformity.²³⁴
"The Sentencing Reform Act, the culmination of lengthy bipartisan efforts, sought to eliminate unwarranted disparity in sentencing and to address the inequalities created by indeterminate sentencing.²³⁵ Congress determined that sentencing should be tailored:
"(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care or other correctional treatment in the most effective manner.²³⁶
"To this end, the Sentencing Reform Act created the Commission as an independent agency within the judicial branch of the federal government²³⁷ and directed it to promulgate guidelines that were required to be used for sentencing within the prescribed statutory maximum.²³⁸"

"For nearly 20 years, federal judges were required to impose sentences within the applicable guideline range unless the court found the existence of an aggravating or mitigating circumstance not adequately taken into consideration by the Commission in formulating the sentencing guidelines.²⁴⁰ This system changed in 2005, when the Supreme Court held in United States v. Booker that the mandatory operation of the guidelines violated the Sixth Amendment right to a jury trial and the associated right to have all 'elements' of the offense proved beyond a reasonable doubt.²⁴¹ The Court remedied the constitutional violation by striking two provisions from the Sentencing Reform Act, thereby rendering the guidelines 'effectively advisory.'²⁴² The Court reasoned that although an advisory guideline system lacked the mandatory features that Congress enacted, it nevertheless 'retains other features that help to further congressional objectives, including providing certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities, and maintaining sufficient flexibility to permit individualized sentences when warranted.'²⁴³ The Court concluded that an advisory guideline system would 'continue to move sentencing in Congress’s preferred direction, helping to avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary.'²⁴⁴
"Booker and its progeny explicitly and repeatedly reinforced the continued importance of the guidelines in the sentencing determination.245 District courts are required to properly calculate and consider the guidelines when sentencing.²⁴⁶ 'The district court, in determining the appropriate sentence in a particular case, therefore, must consider the properly calculated guideline range, the grounds for departure provided in the policy statements, and then the factors under 18 U.S.C. § 3553(a).'²⁴⁷ Most circuits agree on the three-step approach reflected in USSG §1B1.1 (Application Instructions), including the consideration of departure provisions in the Guidelines Manual, in determining the sentence to be imposed.²⁴⁸"

"Despite their general leveling effect, mandatory minimums can actually increase sentencing disparities in some cases. For example, as the US Sentencing Commission (1991, p. 31) points out, the law provides for large sentencing step-ups or "cliffs" over tiny quantity ranges. A first-time offender found to be in possession of 5.1 grams of crack must be sentenced to at least 5 years in prison. But a first-time offender found to be in possession of 5.0 grams of crack misses the mandatory minimum criterion and can be imprisoned for at most one year. Thus, these two very similar offenders draw sentences differing by at least four years. (Of course, any sentencing regime based at least partly on amounts possessed is likely to include such step-ups. But sentencing guidelines allow for smaller and more numerous steps or ranges that may overlap, and they allow other factors to be considered within those ranges.)"

"Unintended Consequences of Mandatory Minimum Sentences:
"- Significant increases in the costs of corrections due to longer prison terms and an increasing prison population;
"- Removal from consideration of other sentencing options that may prove to be less costly and/or more effective than mandatory incarceration;
"- Impact on all aspects of the criminal justice system, including pleas or verdicts and offender eligibility for rehabilitation programs and early release;
"- Limiting the discretion of the sentencing judge."

"Justice Breyer delivered the opinion of the Court in part, concluding that 18 U. S. C. A. §3553(b)(1), which makes the Federal Sentencing Guidelines mandatory, is incompatible with today's Sixth Amendment 'jury trial' holding and therefore must be severed and excised from the Sentencing Reform Act of 1984 (Act). Section 3742(e), which depends upon the Guidelines' mandatory nature, also must be severed and excised. So modified, the Act makes the Guidelines effectively advisory, requiring a sentencing court to consider Guidelines ranges, see §3553(a)(4), but permitting it to tailor the sentence in light of other statutory concerns, see §3553(a)."

"High levels of drug use and experimentation in the 1960s resulted in numerous long prison sentences under the Boggs Act.³¹ In 1970, Congress responded to the concerns of prosecutors, wardens, and families of those convicted, repealing virtually all provisions imposing mandatory minimum sentences for drug violations.³² Congress commented that lengthening prison sentences 'had not shown the expected overall reduction in drug law violations.'³³"

"The movement towards the current state of sentencing for federal drug crimes began with the passage of the Sentencing Reform Act of 1984 (SRA).³⁵ In passing the SRA, a bipartisan Congress fundamentally changed sentencing by rejecting the rehabilitation model of punishment.³⁶ The Act announced new objectives:
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.³⁷
"A revolutionary feature of the SRA was its creation of the United States Sentencing Commission, an independent expert panel within the judicial branch charged with refining sentencing.³⁸"

"Two years after enacting the SRA, Congress passed the Anti-Drug Abuse Act of 1986 (ADAA),⁴⁸ which incorporated a tiered system of minimum sentences for crack, powder cocaine, and other commonly abused substances based on the quantity of the drugs involved.⁴⁹ The ADAA was passed in the midst of public paranoia and outcry over the crack epidemic and the fear of AIDS being spread through drug use.⁵⁰ This political climate led to broad bipartisan support for the ADAA, with the bill passing the House by a 392-16 vote and the Senate on a voice vote.⁵¹"

"The study by the [Pennsylvania Sentencing] Commission found that neither length of sentence nor the imposition of a mandatory minimum sentence alone was related to recidivism. In the four recidivism studies conducted as part of this project, the recidivism rates (i.e., arrest for a new crime or technical violation resulting in reincarceration) three years after release were as follows: drug delivery offenders (54%), school zone offenders (57%), repeat violent offenders (54%) and firearms offenders (50%). Younger offenders, those with a greater number of prior arrests and/or convictions, and those sentenced to prison were more likely to recidivate; those sentenced for a drug mandatory were more likely to be re-arrested for a drug offense and those sentenced for a repeat violent offense or firearms mandatory were more likely to be re-arrested for an offense against a person. Consistent with finding of other research on deterrence and recidivism, the certainty of incarceration may be more important than the duration of the confinement."

"Most of the judges we interviewed were quite bitter about the operation of the sentencing guidelines. As one of them remarked: 'The people who drew up these guidelines never sat in a court and had to look a defendant in the eye while imposing some of these sentences.'"

"On August 3, 2010, President Obama signed the Fair Sentencing Act of 2010 into law.¹ This measure eliminated the five-year mandatory minimum prison sentence that previously adhered under federal law upon a conviction for possession of five grams or more of crack cocaine.² The Act also increased the amount, in weight, of crack that must be implicated for either a five- or a ten-year mandatory minimum sentence to apply upon conviction of any of several federal drug trafficking crimes.³"

"The precise terms of the legislation that would address the discrepancy were somewhat more difficult to devise. Eventually, however, it was agreed that (1) the threshold quantity of crack necessary to implicate the five-year mandatory minimum would be increased to twenty-eight grams, or approximately one ounce (effectively creating an 18:1 powder-to-crack ratio);¹⁴² (2) a similar upward adjustment would be made to the quantity of crack necessary for a defendant to receive a ten-year minimum term;¹⁴³ (3) the five-year mandatory minimum sentence applicable to mere possession of crack would be abolished;¹⁴⁴ and (4) more severe penalties would apply to drug crimes involving violence, threats of violence, or other aggravating circumstances.¹⁴⁵ Retention of some disparity between crack and powder cocaine was essential to pas-sage of the Act, because many members of Congress continued to believe (with some justification)¹⁴⁶ that given its customary methods of distribution and administration, crack was at least somewhat more powerful, more addictive, and more closely tied to violent crime than powder cocaine was.¹⁴⁷ To these Senators and Representatives, these differences supported some distinction be-tween powder and crack cocaine—just not a 100:1 discrepancy.¹⁴⁸ By adopting an 18:1 ratio, instead of equalizing the penalties attached to crack and powder cocaine, the measure that would be-come the Fair Sentencing Act assuaged these concerns and facilitated its enactment into law."