Federal Mandatory Minimum Sentencing Statutes

1 Federal Mandatory Minimum Sentencing Statutes Charles Doyle Senior Specialist in American Public Law September 9, 2013. Congressional Research Service 7-5700. RL32040. Federal Mandatory Minimum Sentencing Statutes Summary Federal Mandatory Minimum Sentencing Statutes limit the discretion of a Sentencing court to impose a sentence that does not include a term of imprisonment or the death penalty. They have a long history and come in several varieties: the not-less-than, the flat sentence, and piggyback versions. Federal courts may refrain from imposing an otherwise required statutory Mandatory Minimum sentence when requested by the prosecution on the basis of substantial assistance toward the prosecution of others. First-time, low-level, non-violent offenders may be able to avoid the Mandatory minimums under the Controlled Substances Acts, if they are completely forthcoming. The most common imposed Federal Mandatory Minimum sentences arise under the Controlled Substance and Controlled Substance Import and Export Acts, the provisions punishing the presence of a firearm in connection with a crime of violence or drug trafficking offense, the Armed Career Criminal Act, various sex crimes include child pornography, and aggravated identity theft.

2 Critics argue that Mandatory minimums undermine the rationale and operation of the Federal Sentencing guidelines which are designed to eliminate unwarranted Sentencing disparity. Counter arguments suggest that the guidelines themselves operate to undermine individual Sentencing discretion and that the ills attributed to other Mandatory minimums are more appropriately assigned to prosecutorial discretion or other sources. State and Federal Mandatory minimums have come under constitutional attack on several grounds over the years, and have generally survived. The Eighth Amendment's cruel and unusual punishments clause does bar Mandatory capital punishment, and apparently bans any term of imprisonment that is grossly disproportionate to the seriousness of the crime for which it is imposed. The Supreme Court, however, has declined to overturn sentences imposed under the California three strikes law and challenged as cruel and unusual.

3 Double jeopardy, ex post facto, due process, separation of powers, and equal protection challenges have been generally unavailing. The United States Sentencing Commission's Mandatory Minimum Penalties in the Federal Criminal Justice System (2011) recommends consideration of amendments to several of the Statutes under which Federal Mandatory Minimum sentences are most often imposed. Lists of the various Federal Mandatory Minimum Sentencing Statutes are appended, as is a bibliography of legal materials. This report is available in an abridged version as CRS Report RS21598, Federal Mandatory Minimum Sentencing Statutes : An Abbreviated Overview, without the citations to authority, footnotes, or appendixes that appear here. Congressional Research Service Federal Mandatory Minimum Sentencing Statutes Contents 1. Types of Mandatory Minimums .. 1. History .. 4. Substantial Assistance .. 7. Upon the Motion of the Government.

4 8. To Reflect a Defendant's Substantial 9. Mandatory Minimums and the Sentencing Guidelines .. 9. First Commission Report .. 9. Second Commission Report .. 12. Constitutional 15. Legislative Authority .. 15. Commerce Clause .. 16. Necessary and Proper .. 17. Treaty Power .. 17. Territorial and Maritime .. 18. Cruel and Unusual Punishment .. 18. 18. Juries, Grand Juries, and Due Process .. 26. Separation of Powers .. 29. Drug 29. Possession with Intent .. 35. Drug Kingpin .. 37. Safety Valve .. 37. One Criminal History 38. Only the 40. Only Single or Low Level Offenders .. 41. Tell All .. 41. Firearms Offenses .. 42. Section 924(c).. 42. Predicate Offenses .. 44. Possession in Furtherance .. 45. Use or Carry .. 46. Discharge and 47. Short Barrels, Semiautomatics, Machine Guns, and Bombs .. 47. Other Sentencing Considerations .. 48. Armor Piercing Ammunition .. 49. Aiding, Abetting, and Conspiracy .. 50.

5 Second 51. Double 51. Sentencing Commission .. 52. Armed Career Criminal Act (18 924(e)) .. 53. Predicate Offenses .. 53. Legislative Authority .. 55. Second 56. Apprendi and Recidivism .. 56. Eighth Amendment .. 57. Congressional Research Service Federal Mandatory Minimum Sentencing Statutes Double 58. Sex Offenses .. 59. Federal Enclaves and Prisons .. 61. 62. Definitions .. 62. Aggravated Sexual Abuse .. 63. Sexual Abuse .. 64. Abusive Sexual Contact .. 65. Repeated Sex Offenses Against Children .. 65. Travel and 66. Coercion and Enticement .. 67. Transportation of a Minor .. 68. Travel to Sexually Abuse a Child .. 69. Commercial Sex Trafficking of a Child or by Force .. 69. Murder in the Course of Certain Sexual Offenses .. 71. Child 72. Production of Child Pornography .. 72. Subsection 2251(a): Use of a Child to Produce .. 73. Subsection 2251(b): Permitting the Use of a Child to 74. Subsection 2251(c): Overseas 74.

6 Subsection 2251(d): Advertising .. 75. Selling or Buying Children for Pornographic Purposes .. 75. Certain Activities Involving Child Pornography (Real Child) .. 76. Certain Activities Involving Child Pornography (Real and Virtual) .. 80. Sentencing Commission .. 87. Identity Theft .. 87. Whoever .. 88. During and in Relation to .. 89. Subsection (c) Felony 89. Federal Crimes of Terrorism Predicates .. 89. Knowingly .. 90. Transfers, Possesses, or 90. Without Lawful Authority .. 90. A Means of Identification .. 91. Of Another Person .. 91. Sentencing .. 91. Sentencing Commission Report .. 93. Attachments .. 93. Two-Year Predicate Offenses .. 93. Terrorist Predicate Offenses .. 95. three Strikes (18 3559(c)) .. 97. Notice and Objections .. 97. Predicate Offenses .. 98. Serious Drug 98. Serious Violent 98. Constitutional Considerations .. 100. List of Federal Mandatory Minimum Sentencing Statutes .. 101.

7 Imprisonment for Not Less Than a Specified Term of Years or 101. Death or Imprisonment for Any Term of Years or for 107. Congressional Research Service Federal Mandatory Minimum Sentencing Statutes Death or Imprisonment for 109. Imprisonment for Any Term of Years or Life .. 110. Imprisonment for Life .. 114. Imprisonment for Any Term of Years .. 115. Imprisonment for the Same, or Some Multiple of, the Sentence for a Predicate Offense When the Predicate Requires Imposition of a Mandatory Minimum Sentence .. 115. Bibliography .. 116. Books and 116. Notes and Comments .. 120. Tables Table 1. Federal Drug Offenses: Mandatory Minimum Terms of Imprisonment .. 34. Table 2. Federal Sex Offenses: Mandatory Minimum Terms of Imprisonment .. 59. Contacts Author Contact 120. Congressional Research Service Federal Mandatory Minimum Sentencing Statutes Introduction Federal Mandatory Minimum Sentencing Statutes ( Mandatory minimums) demand that execution or incarceration follow criminal Among other things, they cover drug dealing, murdering Federal officials, and using a gun to commit a Federal crime.

8 They have been a feature of Federal Sentencing since the dawn of the Republic. They circumscribe judicial Sentencing discretion,2 although they impose few limitations upon prosecutorial discretion,3 or upon the President's power to They have been criticized as unthinkingly harsh and incompatible with a rational Sentencing guideline system; yet they have also been embraced as hallmarks of truth in Sentencing and a certain means of incapacitating the criminally dangerous. This is a brief overview of Federal Statutes in the area and a discussion of some of the constitutional challenges they have Types of Mandatory Minimums Mandatory minimums come in many stripes, including some whose status might be disputed. The most widely recognized are those that demand that offenders be sentenced to imprisonment for 1. Although others may differ, this report does not classify as Mandatory Minimum Sentencing Statutes those statutory proscriptions that call for a Mandatory Minimum fine unless they also call for a Mandatory Minimum term of imprisonment.

9 2. Commentators have defined Mandatory minimums in a number of ways, see , Mandatory Minimum Sentences Coupled with Multi-Facet Interventions: An Effective Response to Domestic Violence, 6 UNIVERSITY OF THE DISTRICT. OF COLUMBIA LAW REVIEW 51, 68 (2001), quoting, Determinate Sentencing and Judicial Participation in Democratic Punishment, 108 HARVARD LAW REVIEW 947 (1995)( Mandatory minimums require judges to impose a specified Minimum prison term if an offense meets certain statutory criteria ); Lowenthal, Mandatory Sentencing Laws: Undermining the Effectiveness of Determinate Sentencing Reform, 81 CALIFORNIA LAW REVIEW 61, 64 (1993). ( Mandatory Sentencing Statutes generally provide that when a specified circumstance exists in connection with the commission of a crime (1) the court must sentence the defendant to prison and (2) the duration of the defendant's incarceration will be substantially longer than it would have been in the absence of the circumstance ); Bernstein, Discretion Redux Mandatory Minimums, Federal Judges, and the Safety Valve' Provision of the 1994 Crime Act, 20.

10 UNIVERSITY OF DAYTON LAW REVIEW 765, 768 (1995)(ellipse in the original)( [m]andatory minimums, which are most commonly applied in drug cases, are statutory provisions calling for a sentence of no less than .. ' for a given offense (adjusted for criminal record) ). The definition used here , any statute that effectively requires a Federal judge, at a Minimum , to sentence a convicted defendant to a term of imprisonment is a Mandatory Minimum is designed to avoid exclusion of any provisions that should arguably be listed. 3. , 18 3553(e)( Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as Minimum sentence so as to reflect a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense .. )(emphasis added). Prosecutorial discretion is somewhat confined, however, by the courts' authority to accept or reject plea bargains, 32, and their consideration of relevant but uncharged misconduct under the Federal Sentencing Guidelines, 4.