Federal Mandatory Minimum Sentencing Statutes
Prepared for Members and Committees of Congress
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
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. The constitutional rule – that any
fact that increases the maximum penalty for crime must be charged in the indictment, presented
for jury determination, and proven beyond a reasonable doubt – has no application to a fact that
triggers a mandatory minimum penalty, at least with regard to facts traditionally considered
sentencing factors. It does mean, however, that federal sentence guidelines remain important
considerations but are no longer binding. Double jeopardy, ex post facto, due process, separation
of powers and equal protection challenges have been generally unavailing.
Lists of various federal mandatory minimum sentencing statutes are appended as is a
bibliography of legal materials.
This report is available in an abbreviated form without its footnotes, citations to authority, or
appendices as CRS Report RS21598, Federal Mandatory Minimum Sentencing Statutes: An
Abbreviated Overview, by Charles Doyle.
Introduc tion ............................................................................................................................... 1
Types of Mandatory Minimums................................................................................................1
Histor y ....................................................................................................................................... 4
Mandatory Minimums and the Sentencing Guidelines.............................................................7
Cruel and Unusual Punishment.........................................................................................10
Juries, Grand Juries and Due Process...............................................................................16
Separation of powers.........................................................................................................18
Crack and Equal Protection..............................................................................................18
Recidivism, Ex Post Facto and Double Jeopardy.............................................................20
LIST OF FEDERAL MANDATORY MINIMUM SENTENCING STATUTES.......................................21
Imprisonment for not less than a specified term of years or life.......................................21
Death or imprisonment for any term of years or for life...................................................27
Death or imprisonment for life.........................................................................................28
Imprisonment for any term of years or life.......................................................................30
Imprisonment for life........................................................................................................33
Imprisonment for not more than some multiple of the sentence for a predicate
offens e ........................................................................................................................ .... 34
Bibliogr aphy ............................................................................................................................ 34
Books and Articles............................................................................................................34
Notes and Comments........................................................................................................38
Author Contact Information..........................................................................................................39
Federal mandatory minimum sentencing statutes (mandatory minimums) demand that execution 1
or incarceration follow criminal conviction. Among other things, they cover drug dealing,
murdering federal officials, and using a gun to commit a federal crime. They have been a feature
of federal sentencing since the dawn of the Republic. They circumscribe judicial sentencing 23
discretion, although they impose few limitations upon prosecutorial discretion, or upon the 4
President’s power to pardon. 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 5
they have faced.
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 6
“not less than” a designated term of imprisonment. Some are triggered by the nature of the
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
2 Commentators have defined mandatory minimums in a number of ways, see e.g., 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
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 – i.e., 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 E.g., 18 U.S.C. 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, F.R.Crim.P. 32,
and their consideration of relevant but uncharged misconduct under the federal Sentencing Guidelines, U.S.S.G.
4 E.g., U.S.Const. Art.II, §2 (“The President . . . shall have power to grant reprieves and pardons for offenses against
the United States . . .”).
5 Various parts of the report are drawn from earlier reports, principally, CRS Report RL30281, Federal Mandatory
Minimum Sentencing Statutes: A List of Citations with Captions, Introductory Comments, and Bibliography, by Charles
Doyle (Aug. 14, 1999).
6 E.g., 18 U.S.C. 924(c)(1)(A)(“. . . any person who, during and in relation to any crime of violence or drug trafficking
crime . . . for which the person may be prosecuted in a court of the United States uses or carries a firearm . . . shall in
addition to the punishment provided for such crime . . . (i) be sentenced to a term of imprisonment of not less than 5
years . . .”).
offense,7 others by the criminal record of the offender.8 A few members of this “not less than”
category are less “mandatory” than others, because Congress has provided a partial escape hatch
or safety valve. For example, several of the drug-related mandatory minimums are subject to a
“safety valve” for small time, first time offenders that may render their minimum penalties less 9
than mandatory, or at least less severe. Some of the other “not-less-than”mandatory minimums
purport to permit the court to sentence an offender to a fine rather than to a mandatory term of 10
A second generally recognized category of mandatory minimums consists of the flat or single 11
sentence statutes, the vast majority of which call for life imprisonment. Closely related are the
7 E.g., 18 U.S.C. 844(f)(1)(“Whoever maliciously damages or destroys . . . by means of fire or an explosive any . . .
personal or real property . . . owned or possessed by . . . the United States . . . shall be imprisoned for not less than 5
years and not more than 20 years . . .”).
8 E.g., 18 U.S.C. 2252(b)(1)(“Whoever violates . . . paragraphs (1), (2), or (3) of subsection (a) [relating to commercial
activities with respect child pornography] shall be fined under this title and imprisoned not less than 5 years and not
more than 20 years. . . .”).
9 “Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the
Controlled Substances Act (21 U.S.C. 841, 844, 846) or section 1010 or 1013 of the Controlled Substances Import and
Export Act (21 U.S.C. 960, 963), the court shall impose a sentence pursuant to guidelines promulgated by the United
States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the
court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that—
“(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;
“(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon
(or induce another participant to do so) in connection with the offense;
“(3) the offense did not result in death or serious bodily injury to any person;
“(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under
the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the
Controlled Substances Act; and
“(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all
information and evidence the defendant has concerning the offense or offenses that were part of the same course of
conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to
provide or that the Government is already aware of the information shall not preclude a determination by the court that
the defendant has complied with this requirement,” 18 U.S.C. 3553(f).
When the “safety value”can be claimed, the Sentencing Guidelines call for a minimal offense level of 17, if the
otherwise applicable mandatory minimum is at least 5 years, U.S.S.G. §5C1.2(b). An offense level of 17 translates to a
permissible sentencing range of between 2 and 2.5 years’ imprisonment, U.S.S.G. Ch.5 Pt.A (Sentencing Table), and is
beyond the level for which an offender may be sentenced either to probation or to split sentence of imprisonment and
some other less restrictive form of supervision, Id.; U.S.S.C. §5C1.1.
10 E.g.,, 2 U.S.C. 390 (“Every person who, having been subpenaed as a witness under this chapter [relating to
Congressional contested elections] to give testimony or to produce documents, willfully makes default, or who, having
appeared, refuses to answer any question pertinent to the contested election case, shall be deemed guilty of a
misdemeanor punishable by fine of not more than $1,000 nor less than $100 or imprisoned for not less than one month
nor more than twelve months, or both”)(emphasis added).
Although these might seem to stretch the definition (i.e., statutes that require a judge to impose a minimum sentence of
imprisonment), they are mentioned because the Sentencing Commission included them within its definition of
mandatory minimums, United States Sentencing Commission, Special Report to the Congress: Mandatory Minimum
Penalties in the Federal Criminal Justice System (Commission Report), 4-5 (1991)(“Under some statutes, a mandatory
prison term is only required when the court otherwise determines to impose a sentence of imprisonment”).
Moreover, they highlight instances where Congress might have been thought to establish a mandatory minimum but
where its treatment of the fine to be imposed may leave its intentions in doubt. See e.g., 18 U.S.C. 242 (Whoever. . .
willfully subjects any person . . . to the deprivation of any rights . . . if death results . . . shall be fined under this title, or
imprisoned for any term of years or for life, or both. . . . .”)(emphasis added).
11 E.g., 18 U.S.C. 1651 (“Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and
capital punishment statutes that require imposition of either the death penalty or imprisonment for 12
life, or death or imprisonment either for life or for some term of years.
The “piggyback” statutes make up a third class. The piggyback statutes are not themselves
mandatory minimums but sentence offenders by reference to underlying statutes including those 13
that impose mandatory minimums.
Until the Supreme Court intervened in Booker v. United States to eliminate the binding effect of 14
the Sentencing Guidelines, the final and least obvious group was comprised of statutes whose
violation resulted in the imposition of a mandatory minimum term of imprisonment by operation
of law, or more precisely by operation of the Sentencing Reform Act and the Sentencing 15
Guidelines issued in its name. After Booker and the line of cases that followed, the Guidelines
cannot fairly be characterized as a source of mandatory minimum sentences, although they 16
continue to tilt heavily towards incarceration.
is afterwards brought into or found in the United States shall be imprisoned for life”)(emphasis added).
12 E.g., 18 U.S.C. 1201(a)(“Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away
and holds for ransom or reward or otherwise any person . . . if death of any person results, shall be punished by death or
Most observers might exclude from this category capital crimes made punishable by death, life imprisonment, or
imprisonment for any term of years, under the theory that a sentence of imprisonment for zero years is a sentence of
“any term of years.” Yet this can hardly have been the intent of Congress given the seriousness of the offense to which
the sentence attaches.
13 E.g., 18 U.S.C. 1114 (“Whoever kills . . . any officer or employee of the United States . . . shall be punished – (1) in
the case of murder, as provided under section 1111. . . .”).
14 543 U.S. 220 (2005). Booker left the Guidelines in place and essentially intact, but they continue to have a large,
rather than a commanding, presence within the federal sentencing scheme, see e.g., Rita v. United States, 127 S.Ct.
2456 (2007)(appellate courts may consider a sentence within the accurately identified Guideline range reasonable);
Gall v. United States, 128 U.S. 586 (2007)(sentencing courts must begin by determining the appropriate Guideline
range for the case at hand and then consider the other sentencing factors identified in 18 U.S.C. 3553(a); they may not
consider a sentence within the Guideline range per se reasonable nor one outside that range per se unreasonable;
appellate courts are to review trial court sentences under a deferential abuse of discretion standard).
15 The Sentencing Commission did not consider its Guidelines mandatory minimum provisions, Commission Report, at
4 (footnote 3 of the Commission’s Report in brackets) (“‘Mandatory minimums,’ ‘mandatory minimum sentencing
provisions,’ and related terms refer to statutory provisions requiring the imposition of at least a specified minimum
sentence when criteria specified in the relevant statute have been met. [Consistent with the intent of the statutory
directive for this Report, only minimums required by statute are considered to be ‘mandatory minimums.’ Not included
in the definitions (and in fact contrasted with mandatory minimums in a later chapter of this Report) are sentences
required by the federal sentencing guidelines . . .]”). The Sentencing Guidelines, however, are promulgated pursuant to
statutory authority and before Booker often curtailed the authority of a sentencing court to impose a sentence that did
not include a term of imprisonment – upon conviction for violation of a statute which on its face is not a mandatory
16 This is particularly so because the Guidelines impose constraints on the option of probation that make a sentence
other than incarceration more uncommon than was once the case: “Prior to the [Sentencing Reform Act], the prison to
probation ratio in federal criminal sentencing was about sixty to forty. Congress said nothing in the statute about
abolishing or even drastically curtailing probation. . . . The Commission, however, drafted guidelines containing a
presumptive sentence of imprisonment for every felony in the United States Code. Near the bottom of the scale of
crimes, it established several ranges in which a court could select either prison or probation. . . . The result is that the
incidence of probation since the guidelines has been cut by more than half (15.5%),” Freed, Federal Sentencing in the
Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers, 101 YALE LAW JOURNAL 1681, 1706-707
(1992). According to the most recent, publicly available statistics, the current incidence of probation is 7.5% with an
additional 3.9% of offenders sentenced to some mix of incarceration and probation, United States Sentencing
Commission, Federal Sentencing Statistics by State, District & Circuit (October 1, 2005, through September 30, 2006),
Mandatory minimums have been with us from the beginning. In fact, the history of our criminal
sentencing practices is the story of increased reliance upon judicial or administrative discretion in 17
order to mute the law’s severity in individual cases, followed by increased limitations on such 18
discretion in order to curb the resulting arbitrary and discriminatory disparities in punishment. It
is a saga in which “competing theories of mandatory and discretionary sentencing have been in
varying degrees of ascendancy or decline,” Harmelin v. Michigan, 501 U.S. 957, 999 (Kennedy,
Severity and a want of discretion marked the early criminal law. The sentence which followed a
felony conviction was death; except in rare instances no other punishment could be imposed.
Over time the courts were given some discretion over sentencing, but the choices were hardly 19
lenient; and corporal punishment and banishment were common.
Yet even early on there were efforts to ease the law’s severity. Both the accused and the convicted 20
could be pardoned at the King’s will. While Parliament regularly increased the number of
crimes, it often replaced common law capital offenses with statutory crimes defined as
misdemeanors or subject to the benefit of clergy. The result was the same in either case, a reduced
Table 4, available on Dec. 21, 2007 at http://www.ussc.gov/JUDPACK/JP2006.htm.
17 Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND (1765); Chitty, A PRACTICAL TREATISE ON CRIMINAL LAW
(3d Amer. ed. 1836); Stephen, HISTORY OF THE CRIMINAL LAW OF ENGLAND (1883); Rubin, THE LAW OF CRIMINAL
CORRECTION (2d ed. 1973).
18 Frankel, CRIMINAL SENTENCES: LAW WITHOUT ORDER (1973); Frankel, Lawlessness in Sentencing, 41 UNIVERSITY OF
CINCINNATI LAW REVIEW 1 (1972); O’Donnell, Churgin & Curtis, TOWARD A JUST AND EFFECTIVE SENTENCING
SYSTEM: AGENDA FOR LEGISLATIVE REFORM (1977); Stith & Cabranes, FEAR OF JUDGING (1998).
19 Blackstone’s summary on the eve of the Revolutionary War marks the evolution of English sentencing law to that
point: “. . . [T]he court must pronounce that judgment, which the law hath annexed to the crime . . . . Of these some are
capital, which extend to the life of the offender, and consist generally in being hanged by the neck till dead; though in
very atrocious crimes other circumstances of terror, pain, or disgrace are superadded: as, in treasons of all kinds, being
drawn or dragged to the place of execution; in high treason affecting the king’s person or government, embowelling
alive, beheading, and quartering; and in murder, a public dissection. And, in case of any treason committed by a
female, the judgment is to be burned alive. But the humanity of the English nation has authorized, by a tacit consent, an
almost general mitigation of such part of these judgments as savour of torture or cruelty: a sledge or hurdle being
usually allowed to such traitors as are condemned to be drawn; and there being very few instances (and those accidental
or by negligence) of any person’s being embowelled or burned, till previously deprived of sensation by strangling.
Some punishments consist in exile or banishment, by abjuration of the realm, or transportation to the American
colonies; others in loss of liberty, by perpetual or temporary imprisonment. Some extent to confiscation, by forfeiture
of lands, or movables, or both, or of the profits of lands for life: others induce a disability, of holding offices or
employments, being heirs, executors, and the like. Some, though rarely, occasion a mutilation or dismembering, by
cutting off the hand or ears: others fix a lasting stigma on the offender by slitting the nostrils, or branding the hand or
face. Some are merely pecuniary, by stated or discretionary fines: and lastly there are others, that consist principally in
their ignominy, though most of them are mixed with some degree of corporal pain; and theses are inflicted chiefly for
crimes, which arise from indigence, or which render even opulence disgraceful. Such as whipping, hard labour in the
house of correction, the pillory, the stocks, and the ducking stool.” 4 Blackstone, COMMENTARIES ON THE LAWS OF
ENGLAND 369-70 (1769).
20 ID. at 390; Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power From the King, 69 TEXAS LAW
REVIEW 569, 583-89 (1991).
number of capital offenses.21 In our own country, state legislatures drastically curtailed the 22
number of capital offenses soon after the Revolution.
When the first Congress assembled, it enacted several mandatory minimums, each of them a 23
capital offense. The nineteenth century, however, witnessed the appearance of a host of
discretionary schemes designed to ease the harshness of criminal law in individual cases. The
courts could suspend sentence and were vested with broad authority in the selection of those 2425
sentences they chose to impose. Probation and parole were born and became prominent.
By late in the century at the federal level, the number of mandatory capital offenses had been 2627
reduced, and while the number of mandatory minimums had increased, most federal criminal
statutes merely established a maximum penalty and left to the discretion of the courts sentences to
imposed within the maximum. The 1909 federal criminal code revision eliminated most 28
mandatory minimums; soon thereafter federal prisoners were made eligible for parole after
21 Hall, THEFT, LAW AND SOCIETY, 114-32 (1952); Rubin, supra footnote 20 at 180.
22 1 Blumstein, Cohen, Martin & Tonry, RESEARCH ON SENTENCING: THE SEARCH FOR REFORM, 58 (1983); Rothman,
THE DISCOVERY OF THE ASYLUM: SOCIAL ORDER AND DISORDER IN THE NEW REPUBLIC, 61 (rev.ed. 1990).
23 The Act of April 30, 1790 declared that “persons . . . adjudged guilty of treason against the United States . . . shall
suffer death,” 1 Stat. 112; the same sentence awaited those who committed murder within the exclusive jurisdiction of
the United States, 1 Stat. 113, or engaged in piracy, 1 Stat. 113-14, or counterfeiting, 1 Stat. 115.
24 Rubin, supra footnote 20 at 180-84.
25 Zalman, The Rise and Fall of the Indeterminate Sentence, 24 WAYNE LAW REVIEW 45 (1977); Lindsay,
Indeterminate Sentence and Parole System, 16 JOURNAL OF CRIMINAL LAW & CRIMINOLOGY 9 (1925); Rubin, THE LAW
OF CRIMINAL CORRECTION, 205-208, 619-22 (2d ed. 1973).
26 Even treason, at the discretion of the court, was made punishable by imprisonment at hard labor for not less than five
years rather than by death, Rev.Stat. §5332; and the penalty for forgery or counterfeiting of U.S. securities was reduced
from death to imprisonment for not more than fifteen years, Rev.Stat. §5414.
27 Mail robbery, for instance, became punishable by imprisonment at hard labor for not less than five years and not
more than ten years; by imprisonment for life for a 2d offense or if the custodian of the mail were wounded or his life
placed in jeopardy by the use of dangerous weapons, Rev.Stat. §5472.
28 As the Joint Committee on Revision of the Laws explained: “The committee has also adopted a uniform method of
fixing in all offenses not punishable by death the maximum punishment only, leaving the minimum to the discretion of
the trial judge.
“The criminal law necessarily subjects to its corrective discipline all who violate its provisions. The weak and the
vicious, the first offender and the atrocious criminal, the mere technical transgressor and the expert in crime are alike
guilty of the same offense. In the one case the utmost severity of punishment can scarcely provide the protection to
which society is entitled; in the other anything except as nominal punishment may effectually prevent the reclamation
of the offender.
“The argument most frequently urged against leaving the minimum punishments to the discretion of the trial judge is
that it affords parties convicted of crime of a heinous character an opportunity to obtain immunity because of the
weakness or dishonesty of judges. It has been well said by a distinguished authority upon this subject that—
Instances of the former are rare, and of the latter none is believed ever to have existed. The purity of our judiciary
is one of things which calumny has as yet left untouched.
“This recommendation will be found to be in accordance with the humane spirit of advanced criminal jurisprudence.
The early English statutes were proverbially cruel; the gravest crimes and the most trivial offenses alike invoked the
penalty of death. Our own crimes act of 1790 reflected this barbarous spirit and denounced the death penalty for
thirteen distinct offenses, but this spirit of vindictive retribution has entirely disappeared. We have abolished the
punishment of death in all except three cases—treason, murder, and rape—and have provided that even in these cases it
may be modified to imprisonment for life; and as humane judges in England availed themselves of the most technical
irregularities in pleadings and proceedings as an excuse for discharging prisoners from the cruel rigors of the common
law, so jurors here often refuse to convict for offenses attended with extenuating circumstances rather than submit the
offender to what in their judgment is the cruel requirement of a law demanding a minimum punishment,” S.Rep.No.10,
service of a third of their sentences (after fifteen years in the case of prisoners with life 29
sentences); and federal courts shortly thereafter received the authority to suspend the imposition 30
or execution of sentence and impose probation. The 1948 federal criminal code revision took
much the same tack as its predecessor: it eliminated many, but not all, of the “not-less-than” 31
mandatory minimums and continued in place most of the “flat” sentence mandatory minimums.
By mid-twentieth century, a well respected commentator could observe that “[t]he
individualization of penal dispositions, principally through the institutions of the indeterminate 32
sentence, probation, and parole, is a development whose value few would contest.” The contest 33
was joined soon thereafter.
Driven by concerns that broad discretion had led to rootless sentencing, unjustifiable in its
leniency in some instances and in its severity in others, legislative bodies moved to curtail 34
discretionary sentencing on several fronts. Determinate sentencing, sentencing commissions and 3536
guidelines, and mandatory minimum sentences became more prevalent. Parole and probation 37
were abolished or greatly restricted in several jurisdictions.
60th Cong., 1st Sess. 14 (1908).
29 Act of June 25, 1910, §1 36 Stat. 819, and Act of Jan. 23, 1913, 37 Stat. 650.
30 Act of March 4, 1925, 43 Stat. 1259.
31 “The minimum punishment provisions were omitted because of the court’s power, under 3651 of this title, to suspend
sentence whenever the crime or offense is not punishable by death or life imprisonment, and, also, to conform with thst
policy adopted by the codifiers of the 1909 Criminal Code,” H.R.Rep. 304, 80 Cong., 1 Sess. Reviser’s Notes A16
32 Kadish, Legal Norm and Discretion in the Police and Sentencing Process, 75 HARVARD LAW REVIEW 904, 915
33 Davis, DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY (1969); Packer, THE LIMITS OF THE CRIMINAL SANCTION
(1968); Frankel, CRIMINAL SENTENCES: LAW WITHOUT ORDER (1973).
34 A determinate sentence is a sentence for a fixed period of time, a flat sentence; an indeterminate sentence is one
whose duration is specifically fixed but is determined by prison and/or parole authorities, BLACK’S LAW DICTIONARY th
1367 (7 ed. 1999); see generally, Indeterminate Sentencing: An Analysis of Sentencing in America, 70 SOUTHERN
CALIFORNIA LAW REVIEW 1717 (1997); Gardner, The Determinate Sentencing Movement and The Eighth Amendment:
Excessive Punishment Before and After Rummel v. Estelle, 1980 DUKE LAW JOURNAL 1103, 1104-105; Do Judicial
“Scarlet Letters” Violate the Cruel and Unusual Punishments Clause of the Eighth Amendment?, 16 HASTINGS
CONSTITUTIONAL LAW QUARTERLY 115, 118-19 (1988) (contrasting 7 indeterminate sentencing structure states with 9
determinate sentence states).
35 Robinson, A Sentencing System for the 21st Century?, 66 TEXAS LAW REVIEW 1, 24-5 (1987). Sentencing guidelines
do not necessarily circumscribe judicial sentencing discretion; the guidelines may simply be advisory. In whatever
form, guidelines are or have been authorized for almost half of the states: Ala.Code §§12-25-1 to 12-25-12; Ark.Code
Ann. §§16-90-801 to 16-90-804; Cal.Penal Code §1170 (repealed); Conn.Gen.Stat.Ann. §51-10c; Del.Code Ann. tit.11,
§§6580, 6581; Fla.Stat. Ann. §§921.001 to 921.242; Ill. Comp.Stat.Ann. ch.730, §5/5-10-1 (repealed); Kan.Stat.Ann.
§§21-4701 to 21-4728; La.Rev. Stat.Ann. §§15:321 to 15:326 (repealed); Md.Crim.Pro. §§6-201 to 6-213;
Mass.Gen.Laws Ann. ch.221E, §§1-4; Mich.Comp.Laws Ann. §§769.31 -739.34; Minn.Stat.Ann. ch.244 App.;
Mo.Ann.Stat. §558.019; N.M.Stat.Ann. §§31-18A-1 to 31-18A-9 (repealed); N.C.Gen. Stat. §§164-35 to 164-47; Ohio
Rev.Code Ann. §§181.21 to 181.56; Okla.Stat.Ann. tit. 22 §§1501-1516; Ore.Rev.Stat. §§137.667 to 137.671;
Pa.Stat.Ann. tit. 42, §§2151-2155; S.C. Code §§24-26-10 to 24-26-50; Tenn.Code Ann. §§40-37-101 to 40-37-105
(repealed); Utah Code Ann. §§63-25a-301 to 63-25a-306; Va.Code §§17.1-800 to 17.1-806; Wash.Rev. Code Ann.
§§9.94A.310 to 9.94A.420; Wis.Stat.Ann. §§973.017, 973.30.
36 Do Judicial “Scarlet Letters” Violate the Cruel and Unusual Punishments Clause of the Eighth Amendment, 16
HASTINGS CONSTITUTIONAL LAW QUARTERLY 115, 119 n.32 (1988) (listing 33 states with mandatory minimum
37 See e.g., Alaska Stat.§§12.55.125 to 12.55.185; Cal.Pen.Code §1170; Colo.Rev.Stat. §§16-11-304, 18-1-105;
The Sentencing Reform Act of 1984 brought this trend to the federal criminal justice system.38 It
repealed the authority of the federal courts to suspend criminal sentences, 18 U.S.C. 3651 (1982
ed.). It abolished federal parole, 18 U.S.C. 4201 to 4218 (1982 ed.). It created a sentencing
guideline system, applicable within the statutory maximum and minimum penalties established by
Congress, that tightly confined the sentencing discretion of federal judges, 28 U.S.C. 991 to 998.
The armed career criminal, three strikes, and several of the other prominent drug and gun related 39
mandatory minimums followed in the ensuing years.
Even though the guidelines work to reduce judicial sentencing discretion and might once have
been characterized as creating a host of new members of the species of mandatory minimums, the
not-less-than mandatory minimums have been criticized as incompatible with the federal
sentencing guidelines. Perhaps most prominent among its critics has been the Sentencing
Commission itself. Its report, after sketching the arguments traditionally offered in support of 40
mandatory minimums, observed that
- only 4 of the 60 mandatory minimums were regularly prosecuted;41
Ind.Code Ann. §35-50-6-1; Minn.Stat.Ann. §244.05; N.M.Stat.Ann. §§31-18-15, 31-21-10. Note that some of the
jurisdictions that have abolished parole as a discretionary means of reducing an offender’s term of imprisonment
authorize “reentry parole” or terms of “supervised release” under which the offender is subject to supervision after
service of his or her full term of imprisonment.
38 The Sentence Reform Act is chapter II, 98 Stat. 1987, of the Comprehensive Crime Control Act of 1984, 98 Stat.
1976, enacted as title II of P.L. 98-473, 98 Stat. 1837 (1984).
39 The mandatory minimum applicable when a firearm is used during the course of a federal crime of violence, 18
U.S.C. 924(c), originated in the same legislation as the Sentence Reform Act, P.L. 98-473, 98 Stat. 2138 (1984). The
armed career criminal provisions, 18 U.S.C. 924(e), first surfaced in the Firearms Owners Protection Act, P.L. 99-308,
100 Stat. 458 (1986); the mandatory minimums for drug trafficking, 21 U.S.C. 841(b), in the Anti-Drug Abuse Act of
1986, P.L. 99-570, 100 Stat. 3207-2; the mandatory minimums for crack possession, 21 U.S.C. 844, in the Anti-Drug
Abuse Act of 1988, P.L. 100-690, 102 Stat. 4370; and the three strikes provisions, 18 U.S.C. 3559(c), in the Violent
Crime Control and Law Enforcement Act of 1994, P.L. 103-322, 108 Stat. 1982.
The drug kingpin mandatory minimum, 21 U.S.C. 848, enacted as part of the original Controlled Substances Act in
1970, P.L. 91-513, 84 Stat. 1265 (1970), and most of the mandatory minimums cited in the appendix predate their more
well known fellows.
The safety valve feature of 18 U.S.C. 3553(f) available to nonviolent, first-time drug offenders and passed in 1994, P.L.
103-322, 108 Stat. 1985, might be seen as a break in the trend towards greater use of mandatory minimums even
though it does not enhance federal judicial sentencing discretion.
40 “Retribution or ‘Just Deserts.’ Perhaps the most commonly-voiced goal of mandatory minimum penalties is the
‘justness’ of long prison terms for particular serious offenses. . . . Deterrence. By requiring the imposition of
substantial penalties for targeted offenses, mandatory minimums are intended both to discourage the individual
sentenced . . . from further involvement in crime . . . and, by example discourage other potential lawbreakers . . . .
Incapacitation, Especially of the Serious Offender. Mandating increased sentence severity aims to protect the public by
incapacitating offenders . . . . Disparity. Indeterminate sentencing systems permit substantial latitude in setting the
sentence, which in turn can mean that defendants convicted of the same offense are sentenced to widely disparate
sentences. Inducement of Cooperation. Because they provide specific lengthy sentences, mandatory minimums
encourage offenders to assist in the investigation of criminal conduct by others [in order to take advantage of the escape
hatch 18 U.S.C. 3553(e) supplies to those who cooperate with authorities]. . . . Inducement of Pleas . . . [P]rosecutors
express the view that mandatory minimum sentences can be valuable tools in obtaining guilty pleas. . .” Commission
41 Commission Report at ii, 11 (“four statutes account for approximately 94 percent of the cases . . . 21 U.S.C. 841
- mandatory minimums induce new sentencing disparities;42
- due to plea bargaining, 35% of the defendants who might have been charged and sentenced 43
under mandatory minimums were not;
- “disparate application of mandatory minimum sentences . . . appears to be related to race;”44
- mandatory minimums lack the capacity to consider the range of aggravating and mitigating
circumstances that may attend the same offense and as a consequence produce unwarranted 45
[illicit drug trafficking], 21 U.S.C. 844 [illicit drug possession], 21 U.S.C. 960 [drug smuggling], and 18 U.S.C.
924(c)[armed career criminals]”).
42 Commission Report at ii. (“[The] lack of uniform application creates unwarranted disparity in sentencing and
compromises the potential for the guidelines sentencing system to reduce disparity”). But see, Stith & Cabranes, FEAR
OF JUDGING, 106 1998)(“Our analysis suggests four major conclusions: 1. Inter-judge sentence variation was not as
rampant or as ‘shameful’ in the federal courts under the pre-Guidelines regime as Congress apparently believed . . . . 2.
No thorough empirical study has demonstrated a reduction in the total amount of disparity under the Guidelines. 3.
While reduction of inter-judge disparity is a worthwhile goal . . . it is a complex goal, and a myopic focus on this
objective can result in a system that too often ignores other, equally important goals of a just sentencing system. . . . 4.
Important sources of disparity remain in the Guidelines regime”); Farabee, Disparate Departures Under the Federal
Sentencing Guidelines: A Tale of Two Districts, 30 CONNECTICUT LAW REVIEW 569 (1998)(discussing sentencing
disparity under the guidelines between two adjacent federal court districts); Payne, Does Inter-Judge Disparity Really
Matter? An Analysis of the Effects of Sentencing Reforms in Three Federal District Courts, 17 INTERNATIONAL REVIEW
OF LAW AND ECONOMICS 337 (1997) (suggesting that inter-judge disparity exists the guidelines notwithstanding).
43 Commission Report at iii (“Since the charging and plea negotiation processes are neither open to public review nor
generally reviewable by the courts, the honesty and truth in sentencing intended by the guidelines system is
compromised”). “There are two basic responses to this critique. First, prosecutors undoubtedly do, through charging
decisions and plea bargains, sometimes seek, or agree to, lower than the maximum possible sentences. They have
always done that. With respect to charging decisions, the Guidelines themselves do not even attempt to limit the
historical practice. Indeed, it is difficult to imagine a system which could eliminate prosecutorial charging discretion.
Nonetheless, the Justice Department recognized at the outset . . . that unrestrained pre-indictment bargaining over
charges would undermine the Guidelines . . . .Therefore, it issued internal directives that prosecutors are to charge the
most serious readily provable offense consistent with the nature of the defendant’s conduct. . . . As for plea bargains
after indictment, the primary justification of the relevant conduct guideline is to ensure that prosecutors cannot
manipulate sentences by dismissing courts. As long as the judge knows all the facts, the precise charge of which a
defendant is convicted is usually of little consequence except to set the statutory maximum sentence . . . . Thus, in order
to really control sentences through plea bargaining, a prosecutor must be willing to hide facts from the court. . . . The
truth is that most prosecutors, most of the time, play the sentencing game straight down the middle. To achieve plea
bargains, they will give defendants the benefit of close class on the provability of certain facts, or on the applicability of
certain enhancements to the undoubted facts of a given case. But they will not lie and they will not conceal evidence.
The consequence is that prosecutors, too, have had their discretion restrained by the Guidelines,” Bowman, The Quality
of Mercy Must Be Restrained, and Other Lessons in Learning to Love the Federal, Sentencing Guidelines, 1996
WISCONSIN LAW REVIEW 679, 727-28.
44 Commission Report at iii. The disparate impact of the federal sentencing practices, including mandatory minimums,
has been the subject to extensive debate; see e.g., Albonetti, The Effects of the “Safety Valve” Amendment on Length of
Imprisonment for Cocaine Trafficking/Manufacturing Offenders: Mitigating the Effects of Mandatory Minimum
Penalties and Offender’s Ethnicity, 87 IOWA LAW REVIEW 401 (2002); CRS Report 97-743, Federal Cocaine
Sentencing: Legal Issues, by Paul Starett Wallace Jr. (April 25, 2002); A “Second Look” at Crack Cocaine Sentencing
Policies: One More Try for Federal Equal Protection, 34 AMERICAN CRIMINAL LAW REVIEW 1211 (1997); Sklansky,
Cocaine, Race, and Equal Protection, 47 STANFORD LAW REVIEW 1283 (1995).
45 Commission Report at 26 (“Sentencing guidelines look to an array of indicators to determine offense seriousness,
including the offense of conviction, any relevant quantity determinant (e.g., the amount of drugs in a trafficking
offense, dollar loss in fraud offense), weapon use, victim injury or death, the defendant’s role in the offense, and
whether the defendant accepted responsibility for the offense or, on the other hand, obstructed justice. Mandatory
- uneven application deprives mandatory minimums of their potential to deter;46
- mandatory minimums breed disparity by transferring judicial discretion to the prosecution;47
- in contrast to the calibrated approach of the guidelines, mandatory minimums create cliffs 48
where minuscule factual differences can have enormous sentencing consequences;
- the amendment process of the sentencing guidelines makes them perpetually self-correcting, 49
while mandatory minimums are single-shot efforts at crime control; and
- the most efficient and effective way for Congress to exercise its powers to direct sentencing
policy is through the established process of sentencing guidelines, permitting the
sophistication of the guidelines structure to work, rather than through mandatory 50
minimums, in contrast, typically look to only one (or sometimes two) measurements of offense seriousness. . . . Thus,
for example, whether the defendant was a peripheral participant or the drug ring’s kingpin, whether the defendant used
a weapon, whether the defendant accepted responsibility or, on the other hand, obstructed justice, have no bearing on
the mandatory minimum to which each defendant is exposed”). These arguments would seem to be most persuasive in
the case of flat sentence mandatory minimums; in other instances the range between the mandatory minimum and the
statutory maximum would seem to provide ample room for the type of distinctions just mentioned.
46 Commission Report at iii (“While mandatory minimum sentences may increase severity, the data suggest that uneven
application may dramatically reduce certainty. The consequences of this bifurcated pattern is likely to thwart the
deterrent value of mandatory minimums”). Proponents might suggest that incapacitation and the prospect of minimal
punishment were always the principal objectives. Deterrence is at best challenging to judge; the fact that not all
possible cases receive mandatory minimum treatment is no reason to abandon incapacitation for those that are
ensnared; and the result is one more properly laid to the door of prosecutorial discretion than to mandatory minimums.
47 Commission Report at iii (“Since the power to determine the charge of conviction rests exclusively with the
prosecution for 85 percent of the cases that do not proceed to trial, mandatory minimums transfer sentencing power
from the court to the prosecution. To the extent that prosecutorial discretion is exercised with preference to some and
not to others, and to the extent that some are convicted of conduct carrying a mandatory minimum penalty while others
who engage in the same or similar conduct are not so convicted, disparity is reintroduced”). This presumes that
unwarranted disparity existed before the guidelines, that the guidelines have reduced or eliminated it, and that
mandatory minimums returned it to the system – three propositions upon which there is no consensus. Even if one
accepts all three, the question remains whether disparity, produced by plea agreements that make possible the
conviction of other wrongdoers, is unwarranted or appropriately laid to the door of mandatory minimums.
48 Commission Report at 29 (“The ‘Cliff’ Effect of Mandatory Minimums. Related to the proportionality problems
posed in mandatory minimums already described are the sharp differences in sentence between defendants who fall just
below the threshold of a mandatory minimum compared with those whose criminal conduct just meets the criteria of
the mandatory minimum penalty. Just as mandatory minimums fail to distinguish among defendants whose conduct and
prior records in fact differ markedly, they distinguish far too greatly among defendants who have committed offense
conduct of highly comparable seriousness”). Critics might suggest that such cliffs are natural, necessary, and frequently
occurring in the law (e.g., the age of majority, alcohol-blood levels, statutes of limitations) or that few cliffs are as high
as the one that stands between a crime committed the day before the effective date of the guidelines and one committed
the day after.
49 Commission Report at iv. Critics might note that the perpetual need for self-correction neither inspires great
confidence nor dilutes the prospect of disparity.
50 Commission Report at iv.
The Commission’s 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, 51
first-time, lower 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.
Defendants sentenced to mandatory minimum terms of imprisonment have challenged them on a
number of constitutional grounds ranging from cruel and unusual punishment through ex post
facto and double jeopardy to equal protection and due process. Each constitutional provision
defines outer boundaries that a mandatory minimum must be crafted to honor; none confine
legislative prerogatives in any substantial way.
Mandatory minimums implicate considerations under the Eighth Amendment’s cruel and unusual 52
punishments clause. The clause bars mandatory capital punishment statutes, Woodson v. North
Carolina, 428 U.S. 280 (1976). And although the case law is somewhat uncertain, it seems to
condemn punishment that is “grossly disproportionate” to the misconduct for which it is imposed,
Ewing v. California, 123 S.Ct. 1179 (2003); a standard which a sentence imposed under a
mandatory minimum statute might breach under extreme circumstances.
During the first century of its existence, there was little recourse to the Amendment’s protection,53
and the early cases involved its proscriptions against particular kinds of punishment rather than of 54
punishments of a particular degree of severity. In O’Neil v. Vermont, 144 U.S. 323 (1892),
however, three dissenting justices expressed the view that the cruel and unusual punishments
clause’s prohibitions extended to “all punishments which by their excessive length or severity are 55
greatly disproportionate to the offences charged.”
51 United States Department of Justice: An Analysis of Non-Violent Drug Offenders with Minimal Criminal Histories,
reprinted in, 54 CRIMINAL LAW REPORTER 2101 (1994).
52 The Eighth Amendment to the United States Constitution states in its entirety, “[e]xcessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
53 In Pervear v. Massachusetts, 72 U.S. (5 Wall.) 475 (1866), the Court held that the clause applied to the federal
government and not the states; the first substantive cruel and unusual punishment case apparently did not arrive before
the Supreme Court until Wilkerson v. Utah, 99 U.S. 130 (1878), Mulligan, Cruel and Unusual Punishment: The
Proportionality Rule, 47 FORDHAM LAW REVIEW 639, 642 (1979).
54 See, Wilkerson v. Utah, 99 U.S. 130 (1878) (challenging execution of the death penalty by firing squad); In re
Kemmler, 136 U.S. 436 (1889) (challenging execution of the death penalty by electrocution).
55 144 U.S. at 339-40 (Field, J.)(dissenting); see also, 144 U.S. at 371 (Harlan with Brewer, JJ.)(dissenting) (“The
judgment before us by which the defendant is confined at hard labor. . . for the term of. . . fifty-four years. . . inflicts
punishment, which, in view of the character of the offences committed must be deemed cruel and unusual”). O’Neil, a
mail order liquor dealer licensed in New York, was convicted for filling mail orders sent to Vermont where he had no
The views of the O’Neil dissenters gained further credence after they were quoted by the Court in
Weems v. United States, 217 U.S. 349, 371 (1910), when it invalidated a territorial sentencing 56
scheme which it found both disproportionate in degree and cruel in nature.
Perhaps because of the unusual nature of the penalties involved, the proportionality doctrine 57
suggested in Weems lay dormant for over sixty years. It reappeared in the capital punishment 58
cases following Furman v. Georgia, 408 U.S. 238 (1972).
When the capital punishment statutes enacted in response to Furman came before the Court, one
of the threshold questions was whether capital punishment was a per se violation of the cruel and
unusual punishments clause. For a plurality of the Court that question could only be answered by
determining whether capital punishment was of necessity “grossly out of proportion to the
severity of [any] crime,” Gregg v. Georgia, 428 U.S. 153, 173 (1976). “[W]hen a life has been
taken deliberately by the offender, [the Court could not] say that the punishment is invariably
disproportionate to the crime.” 428 U.S. at 187.
In Coker v. Georgia, a plurality of the Court found “that death is indeed a disproportionate
penalty for the crime of raping an adult woman,” 433 U.S. 583, 597 (1977). It did so after
considering the general repudiation of the death penalty in such cases by the legislatures of other
jurisdictions; the infrequency with which juries in Georgia had been willing to impose the death
penalty for rape of adult woman; and the comparative severity Georgia used to punish other
equally or more serious crimes. The Court employed much the same method of analysis in later 59
capital punishment cases which raised the proportionality doctrine.
license. The majority opinion disposed of the case on jurisdictional grounds and did not reach the Eighth Amendment
56 Weems was convicted of falsifying public documents for which he was sentenced to fifteen years imprisonment and
“accessories” which meant that while imprisoned he would “carry a chain at the ankle, hanging from the wrists, . . .
[would] be employed at hard and painful labor, and receive no assistance whatsoever from without the institution” and
that after release he would forever continue under a form of civil death during which he could not vote or hold public
office or receive a pension, could not hold or dispose of property, and would be subject to lifelong probation. 217 U.S.
The Court pointed out that the sentence was more severe than might be imposed for some degrees of homicide, for
misprision of treason, inciting rebellion, conspiracy to destroy the government, robbery, larceny, or forgery. 217 U.S. at
From the Court’s perspective the legislation establishing the sentencing scheme had “no fellow in American legislation.
. . . It is cruel in its excess of imprisonment and that which accompanies and follows imprisonment. It is unusual in its
character. Its punishments come under the condemnation of the bill of rights, both on account of their degree and kind.”
217 U.S. at 377.
57 There are a few cases in the interim in which the Court may have applied the proportionality doctrine, sub silentio,
because it found no infirmity in the sentences challenged, see e.g., Graham v. West Virginia, 224 U.S. 616 (1912);
Badders v. United States, 240 U.S. 391 (1916). Statements in Trop that might be thought to confirm the doctrine’s
existence are dicta suggesting the Court’s awareness, although not necessarily its endorsement, of the doctrine, Trop v.
Dulles, 356 U.S. 86, 99-100 (1958) (“Since wartime desertion is punishable by death, there can be no argument that the
penalty of denationalization is excessive in relation to the gravity of the crime . . . . Fines, imprisonment and even
execution may be imposed depending upon the enormity of the crime.”).
58 In Furman, the Court found that the Eighth Amendment’s cruel and unusual punishments clause, made binding upon
the states by the due process clause of the Fourteenth Amendment, precluded imposition of the death penalty at the
unguided discretion of the judge or jury.
59 In Enmund v. Florida, 458 U.S. 782 (1982), the Court held that the death penalty was a disproportionate punishment
for a felony murder in which the defendant neither killed nor intended to kill and whose culpability was limited to
Initial efforts to carry the proportionality doctrine to noncapital cases proved unsuccessful.
Shortly after Coker, a petitioner, convicted under a recidivist statute which called for an
automatic life sentence upon a third felony conviction, sought to persuade the Court that the
Eighth Amendment precluded such a sentence based upon a comparative analysis of the severity
of the treatment of recidivism in other jurisdictions, Rummel v. Estelle, 445 U.S. 263 (1980). The
majority of the Court was not persuaded. The proportionality doctrine had only been employed in
capital punishment cases and Weems, it noted. Both involved punishments, different in nature,
from those in Rummel, 445 U.S. at 272-74.
Moreover, the petitioner had failed to convincingly establish any objective criteria to evidence
gross disproportionality. Without some objectively identifiable “bright light” marking
disproportionality, the Court feared application of the proportionality doctrine would constitute
subjective policy making, a task more appropriately left to the legislative bodies, 445 U.S. at 60
Any thoughts that the proportionality doctrine might have been abandoned were dashed almost
immediately by Solem v. Helm, 463 U.S. 277 (1983). Solem declared that imposition of a
mandatory term of life imprisonment under a state recidivist statute constituted cruel and unusual
punishment. The “objective criteria” which guided a proportionality analysis included, “(i) the
gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on the other
criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same 61
crime in other jurisdictions,” 463 U.S. at 292.
Individualized consideration. Consideration of the defendant’s unique circumstances is one of the
foundations of the Court’s Eighth Amendment jurisprudence in capital punishment cases. Furman
found that the Eighth Amendment’s cruel and unusual punishments clause, made binding upon
participation in the predicate felony. On the other hand, defendants who were major participants in the predicate felony
and who acted with at least reckless indifference to the risk to human life thereby created might be sentenced to death
without breaching the proportionality doctrine, Tison v. Arizona, 481 U.S. 137 (1982). In both instances, the Court
examined the practices in other jurisdictions and the seriousness of the defendant’s conduct.
60 See also, Hutto v. Davis, 454 U.S. 370, 372-73 (1982), which summarized Rummel as follows: “Like the respondent
in this case, Rummel argued that the length of his imprisonment was so ‘grossly disproportionate’ to the crime for
which he was sentenced that it violated the ban on cruel and unusual punishment of the Eighth and Fourteenth
Amendments. In rejecting that argument, we distinguished between punishments – such as the death penalty – which
by their very nature differ from all other forms of conventionally accepted punishments, and punishments which differ
from others only in duration. This distinction was based upon two factors. First, this ‘Court’s Eighth Amendment
judgments should neither be nor appear to be merely the subjective views of individual Justices.’ And second, the
excessiveness of one prison term as compared to another is invariably a subjective determination, there being no clear
way to make ‘any constitutional distinction between one term of years and a shorter or longer term of years.’ Thus, we
concluded that ‘one could argue without fear of contradiction by any decision of this Court that for crimes concededly
classified and classifiable as felonies, . . . the length of the sentence actually imposed is purely a matter of legislative
prerogative.’ Accordingly, we held that Rummel’s life sentence did not violate the constitutional ban on cruel and
61 Rummel with prior two nonviolent felony convictions was sentenced to life imprisonment for obtaining $120 under
false pretenses. Helms, the Solem defendant with six prior nonviolent felony convictions was sentenced to life
imprisonment for uttering a $100 “no account” check. The Court distinguished Solem from Rummel on at least two
grounds. Solem was ineligible for parole, while Rummel enjoyed the advantage of a fairly liberal early release scheme;
in Solem the life sentence without possibility of parole was imposed as a matter of judicial discretion, while the life
sentence in Rummel was required as a matter of legislative policy, 463 U.S. at 300-303.
the states by the due process clause of the Fourteenth Amendment, precluded imposition of the
death penalty at the unguided discretion of the judge or jury.
The states initially travelled one of two paths to avoid the problems of unguided discretion
identified in Furman. Some eliminated discretion; others provided guidance. The second
approach passed constitutional muster, Gregg v. Georgia, 428 U.S. 153 (1976); the first did not,
Woodson v. North Carolina, 428 U.S. 280 (1976).
Mandatory capital punishment offended the Eighth Amendment on three grounds, Woodson
declared. It was contrary to the evolving standards of decency which mark the threshold of the
Amendment’s protection, 428 U.S. at 288-301. It failed to address the objections of Furman to
imposition of the death penalty at the unguided discretion of the judge or jury, 428 U.S. at 302.
And it failed to permit consideration of individual characteristics of the crime and offender:
A process that accords no significance to relevant facets of the character and record of the
individual offender or the circumstances of the particular offense excludes from consideration
in fixing the ultimate punishment of death the possibility of compassionate or mitigating
factors stemming from the diverse frailties of humankind. It treats all persons convicted of a
designated offense not as uniquely individual human beings, but as members of a faceless,
undifferentiated mass to be subjected to the blind infliction of the penalty of death. . . .
Consideration of both the offender and the offense in order to arrive at a just and appropriate
sentence has been viewed as a progressive and humanizing development. While the
prevailing practice of individualizing sentencing determinations generally reflects simply
enlightened policy rather than a constitutional imperative, we believe that in capital cases the
fundamental respect for humanity underlying the Eighth Amendment, requires consideration
of the character and record of the individual offender and the circumstances of the particular
offense as a constitutionally indispensable part of the process of inflicting the penalty of 62
death. 428 U.S. at 304 (citations omitted).
The Court regularly and consistently recognized the individual considerations requirement in 6364
subsequent capital punishment cases. Although the language cited above and other dicta would
seem to apply with similar force in noncapital cases, the Court emphasized that the doctrine was 65
limited to capital cases. Although the gravity of the offense appears to the most critical factor in
non-capital cases, the seriousness of the offense maybe judged at least in part by the record of the
individual who committed it.
62 Woodson’s rejection of mandatory capital punishment seemed to lose none of its force because two members of the
five justice majority considered all capital punishment – discretionary or mandatory, guided or unguided – contrary to
the demands of the Eighth Amendment. The two justices in question, Brennan and Marshall, subsequently joined in a
majority opinion holding a Nevada mandatory death penalty statute unconstitutional for failure to adhere to the
individualized capital sentencing doctrine, Sumner v. Shuman, 483 U.S. 66 (1987).
63 See e.g., Roberts v. Louisiana, 431 U.S. 633 (1977); Lockett v. Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma,
455 U.S. 104 (1982); Skipper v. South Carolina, 477 U.S. 1 (1986); Hitchcock v. Dugger, 481 U.S. 393 (1987);
Sumner v. Shuman, 483 U.S. 66 (1987).
64 “The futility of attempting to solve the problems of mandatory death penalty statutes by narrowing the scope of the
capital offense stems from our society’s rejection of the belief that every offense in a like legal category calls for an
identical punishment without regard to the past life and habits of a particular offender,” Roberts v. Louisiana, 428 U.S.
at 333; Sumner v. Shuman, 483 U.S. at 75 n.3.
65 “We recognize that, in noncapital cases, the established practice of individualized sentences rests not on
constitutional commands, but on public policy enacted into statutes,” Lockett v. Ohio, 438 U.S. at 604-605.
Gravity of the offense. The defendant in Harmelin v. Michigan, 501 U.S. 957 (1991), was a first
time offender convicted of possession of 672 grams of cocaine, enough for possibly as many as
65,000 individual doses. Under the laws of the State of Michigan, the conviction carried with it a
mandatory sentence of life imprisonment without the possibility of parole.
Harmelin contended that the sentence violated both the individual consideration and
proportionality doctrines of the Eighth Amendment. A majority of the Court rejected the
individual considerations argument and a plurality refused to accept the proportionality assertion.
The Court noted that in its opinions “[t]he penalty of death differs from all other forms of
criminal punishment. . . . in its total irrevocability,” inter alia, 501 U.S. at 995, quoting Furman v.
Georgia, 408 U.S. at 306 (Stewart, J.)(concurring). In view of the differences, the majority saw
no reason “to extend this so-called individualized capital-sentencing doctrine to an individualized
mandatory life in prison without parole sentencing doctrine.” 501 U.S. at 995 (citations omitted).
The proportionality question proved somewhat more difficult. Justice Scalia and Chief Justice
Rehnquist simply refused to recognize an Eighth Amendment proportionality requirement, at least
in noncapital cases, 501 U.S. at 994. For three other justices, Kennedy, O’Connor and Souter, a
sentence which satisfies the first of the Solem tests, seriousness of the offense, need not survive or
even face comparisons with sentences for other crimes in the same jurisdiction and for the same
crime in other jurisdictions, 501 U.S. at 1004.
More precisely, the plurality emphasized that “the Eighth Amendment does not require strict
proportionality between crime and sentence. Rather, it forbids only extreme sentences that are 66
grossly disproportionate to the crime,” 501 U.S. at 1001. In the case of Harmelin, the sentence
was not grossly disproportionate because of the severity of his crime, i.e., “the pernicious effects
of the drug epidemic in this country. . . demonstrate that the. . . legislature could with reason
conclude that the threat posed to the individual and society by possession of this large an amount
66 Four principles dictate a high proportionality threshold for a plurality of the Court: “The first. . . is that the fixing of
prison terms for specific crimes involves a substantive penological judgment that, as a general matter, is properly
within the province of legislatures, not courts. . . . The efficacy of any sentencing system cannot be assessed absent
agreement on the purposes and objectives of the penal system. And the responsibility for making these fundamental
choices and implementing them lies with the legislature. . . .
“The second principle is that the Eighth Amendment does not mandate adoption of any one penological theory. The
principles which have guided criminal sentencing. . . have varied with the times. The federal and state criminal systems
have accorded different weights at different times to the penological goals of retribution, deterrence, incapacitation, and
rehabilitation. And competing theories of mandatory and discretionary sentencing have been in varying degrees of
ascendancy or decline since the beginning of the Republic.
“Third, marked divergences both in underlying theories of sentencing and in the length of prescribed prison terms are
the inevitable, often beneficial, result of the federal structure. . . . State sentencing schemes may embody different
penological assumptions, making interstate comparison of sentences a difficult and imperfect enterprise. And even
assuming identical philosophies, differing attitudes and perceptions of local conditions may yield different, yet rational,
conclusions regarding the appropriate length of prison terms for particular crimes. Thus, the circumstance that a State
has the most severe punishment for a particular crime does not by itself render the punishment grossly disproportionate.
. . Absent a constitutionally imposed uniformity inimical to traditional notions of federalism, some State will always
bear the distinction of treating particular offenders more severely than any other State.
“The fourth principle. . . is that proportionality review by federal courts should be informed by objective factors to the
maximum possible extent. . . . [O]ur decisions recognize that we lack clear objective standards to distinguish between
sentences for different terms of years. . . . Although no penalty is per se constitutional, the relative lack of objective
standards concerning terms of imprisonment has meant that outside the context of capital punishment, successful
challenges to the proportionality of particular sentences are exceedingly rare,” 501 U.S. at 998-1001 (citations omitted).
of cocaine—in terms of violence, crime, and social displacement—is momentous enough to
warrant the deterrence and retribution of a life sentence without parole,” 501 U.S. at 1003.
The plurality opinion also contains several useful observations about the constitutionality of 67
mandatory sentences per se.
Deference to legislative judgment notwithstanding, when the Court later applied the same gross
disproportionality standard in an excessive fines context, it seemed to imply that misconduct
legislatively classified as a fairly serious crime (a felony) might lack the gravity to support
boundless sanctions. United States v. Bajakajian, 524 U.S. 321 (1998), involved the confiscation
of $357,144 as a consequence of trying to carry it out of the United States without reporting it, a
willful act punishable by imprisonment for not more than 5 years, 31 U.S.C. 5322. In the eyes of
the Court, the crime involved a “minimal level of culpability.” Moreover, “[t]he harm . . . caused
was also minimal. Failure to report this currency affected only one party, the Government, and in
a relatively minor way. . . . Had his crime gone undetected, the Government would have been
deprived only of the information that $357,144 had left the country . . . . Comparing the gravity of
respondent’s crime with the $357,144 forfeiture the Government seeks, we conclude that such a
forfeiture would be grossly disproportional to the gravity of his offense,” 524 U.S. at 338-40.
Did this mean that long mandatory minimum terms of imprisonment triggered by misconduct that
a court might treat as a misdemeanor under California’s three strikes law might fall because it
could result in gross disproportionate sentences? Four justices said yes, but three said no, and
they were joined by two others who said the law survived constitutional scrutiny regardless of
The question arose from the sentencing of an oft-convicted defendant to imprisonment for not
less than 25 years pursuant to the California recidivist statute as a result of his attempt to steal 68
three golf clubs valued at just under $400 a piece, Ewing v. California, 538 U.S. 11 (2003).
67 “It is beyond question that the legislature ‘has the power to define criminal punishments without giving the courts
any sentencing discretion,’ Chapman v. United States, [500 U.S. 453, 467 (1991)]. Since the beginning of the Republic,
Congress and the States have enacted mandatory sentencing schemes. To set aside petitioner’s mandatory sentence
would require rejection not of the judgment of a single jurist, as in Solem, but rather the collective wisdom of the
Michigan Legislature and, as a consequence, the Michigan citizenry. We have never invalidated a penalty mandated by
a legislature based only on the length of sentence, and, especially with a crime as severe as this one, we should do so
only in the most extreme circumstance.
“In asserting the constitutionality of this mandatory sentence, I offer no judgment on its wisdom. Mandatory sentencing
schemes can be criticized for depriving judges of the power to exercise individual discretion when remorse and
acknowledgment of guilt, or other extenuating facts, present what might seem a compelling case for departure from the
maximum. On the other hand, broad and unreviewed discretion exercised by sentencing judges leads to the perception
that no clear standards are being applied, and that the rule of law is imperiled by sentences imposed for no discernible
reason other than the subjective reactions of the sentencing judge. The debate illustrates that, as noted at the outset,
arguments for and against particular sentencing schemes are for legislatures to resolve,” 501 U.S. at 1006-1007.
68 Ewing was sentenced to life imprisonment, but would be eligible for parole after serving 25 years, 538 U.S. at 16, 20.
His case came to the court directly from the California appellate courts. At the same time but without reaching the
merits, the Court disposed of another California three strikes case that reached it by way of habeas review from the
Ninth Circuit, Lockyer v. Andrade, 538 U.S. 63 (2003). The habeas statute binds the federal courts to any state court
interpretation of a constitutional issue unless the decision of the state courts was “contrary to, or involved an
unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States,”
28 U.S.C. 2254(d)(1). Relying on Rummel, the California courts had rejected Andrade’s Eighth Amendment challenge
of his sentence under the three strikes law. In doing so, a majority of the Court concluded that the California appellate
decision foreclosed federal habeas review, since the California decision was neither contrary to the Court’s Eighth
Amendment jurisprudence nor unreasonably applied it, 538 U.S. at 74-7.
Under California law, the trial court might have chosen to avoid the three strikes statute either by
sentencing the attempted theft as a misdemeanor or by ignoring the nature of the earlier
convictions, 538 U.S. at 16-7. It chose not to. The California appellate courts rejected Ewing’s
Eighth Amendment challenges, 538 U.S. at 20. As did a majority of the Members of the Supreme
Justices Scalia and Thomas “concluded that the Eighth Amendment’s prohibition of ‘cruel and
unusual punishments’ [is] not a ‘guarantee’ against disproportionate sentences” and that Ewing’s
entence did not constitute cruel and unusual punishment in violation of the Eight Amendment,
538 U.S. 31-2 (Scalia, J. concurring in the judgement); 538 U.S. at 32 (Thomas, J. concurring in
the judgment). Justice O’Connor, joined by Justice Kennedy and Chief Justice Rehnquist, believe
that the cruel and unusual punishments clause includes a “narrow proportionality principle that
applies to noncapital sentences,” 538 U.S. at 20. They note that standing alone the theft of
property valued at nearly $1,200 “should not be taken lightly,” 538 U.S. at 28. Moreover, “[i]n
weighing the gravity of Ewing’s offense, we must place in the scales not only his current felony, 69
but also his long history of felony recidivism,” 538 U.S. at 29. Thus, “Ewing’s sentence of 25
years to life in prison, for the offense of felony grand theft under the three strikes law, is not
grossly disproportionate and therefore does not violate the Eighth Amendment’s prohibition on
cruel and unusual punishments,” 538 U.S. at 30-1.
The Constitution demands that no person “be held to answer for a capital or otherwise infamous
crime, unless on a presentment or indictment of a grand jury” and that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,”
U.S.Const. Amends. V, VI. Moreover, due process requires that the prosecution prove beyond a
reasonable doubt “every fact necessary to constitute the crime” with which an accused is charged,
In re Winship, 397 U.S. 358, 364 (1970). After Winship, the question arose whether a statute
might authorize or require a more severe penalty for a particular crime based on a fact – not
included in the indictment, not found by the jury, and not proven beyond a reasonable doubt.
Pennsylvania passed a law under which various serious crimes (rape, robbery, kidnapping and the
like) were subject to a mandatory minimum penalty of imprisonment for five years, if the judge
after conviction found by a preponderance of the evidence that the defendant had been in visible 70
possession of a firearm during the commission of the offense. Had the Pennsylvania statute
created a new series of crimes? For example, had it supplemented its crime of rape with a new
crime of rape while visible in possession of firearm? And if so, did the fact of visible possession 71
have to be proven to the jury beyond a reasonable doubt?
69 Prior to his three strike triggering conviction for stealing the golf clubs, Ewing had been convicted of: theft in 1984,
grand theft auto in 1988, petty theft in 1990, battery in 1992, burglary in January of 1993, possession of drug
paraphernalia in February of 1993, appropriating lost property in July of 1993, trespassing and unlawful possession of a
firearm in September of 1993, robbery and three counts of burglary in December of 1993, 538 U.S. at 18-9.
The four dissenting Justices found the proportionality standard applicable and would have found Ewing’s sentence
grossly disproportionate to the gravity of his offense consequently in violation of the Eight Amendment, 538 U.S. at 32
(Breyer, J, with Stevens, Souter, and Ginsburg, dissenting).
70 42 Pa.Cons.Stat. 9712 (1982), reprinted in McMillan v. Pennsylvania, 477 U.S. 79, 81-2 n.1 (1986).
71 The right to grand jury indictment was not implicated since the Sixth Amendment right to grand jury indictment
applies only to federal prosecutions, Alexander v. Louisiana, 405 U.S. 625, 633 (1972).
The Supreme Court concluded that visible possession of a firearm under the statute was not an
element of a new series of crimes, but was instead a sentencing consideration that had been given
a legislatively prescribed weight, McMillan v. Pennsylvania, 477 U.S. 79 (1986). As such, the
Pennsylvania statutory scheme neither offended due process nor triggered any right to a separate
jury finding, 477 U.S. at 84, 93.
There followed a number of state and federal statutes under which facts that might earlier have
been treated as elements of a new crime were simply classified as sentencing factors. In some
instances, the new sentencing factor permitted imposition of a penalty far in excess of that
otherwise available for the underlying offense. For instance, the Supreme Court found no
constitutional defect in a statute which punished a deported alien for returning to the United
States by imprisonment for not more than 2 years, but which permitted the alien to be sentenced
to imprisonment for not more than 20 years upon a post-trial, judicial determination that the alien
had been convicted of a serious crime following deportation, Almendarez-Torres v. United States,
Perhaps uneasy with the implications, the Court soon made it clear that, “under the Due Process
Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment,
any fact (other than prior conviction) that increases the maximum penalty for a crime must be
charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt,” Apprendi v.
New Jersey, 530 U.S. 466, 476 (2000)(emphasis added). Side opinions questioned the continued 72
vitality of McMillan’s mandatory minimum determination in light of the Apprendi.
A majority of the Members of the Court, however, are unwilling to extend Apprendi to mandatory
minimums, Harris v. United States, 536 U.S. 545, 568 (2002):
Reaffirming McMillan and employing the approach outlined in that case, we conclude that
the federal provision at issue, 18 U.S.C. §924(c)(1)(A) (ii), is constitutional. Basing a 2-year
increase in the defendant’s minimum sentence on a judicial finding of brandishing does not
evade the requirements of the Fifth and Sixth Amendments. Congress “simply took one
72 “Thus, the Court appears to hold that any fact that increases or alters the range of penalties to which a defendant is
exposed – which, by definition, must include increases or alterations to either the minimum or maximum penalties –
must be proved to a jury beyond a reasonable doubt. In McMillan, however, we rejected such a rule to the extent it
concerned those facts that increase or alter the minimum penalty to which a defendant is exposed. Accordingly, it is
incumbent on the Court not only to admit that it is overruling McMillan, but also to explain why such a course of action
is appropriate under normal principles of stare decisis,” 530 U.S. at 533 (O’Connor, with Kennedy, Breyer, JJ., and
Rehnquist, Ch.J., dissenting).
“[T]his traditional understanding – that a crime includes every fact that is by law a basis for imposing or increasing th
punishment – continued well into the 20 century, at least until the middle of the century. . . . I think it clear that the
common-law rule would cover the McMillan situation of a mandatory minimum sentence. . . . [A defendant’s] expected
punishment has increased as a result of the narrowed range and that the prosecution is empowered, by invoking the
mandatory minimum, to require the judge to impose a higher punishment than he might wish. The mandatory minimum
entitles the government to more than it would otherwise be entitled . . . . Thus, the fact triggering the mandatory
minimum is part of the punishment sought to be inflicted; it undoubtedly enters into the punishment so as to aggravate
it, and is an act to which the law affixes punishment. Further . . . it is likely that the change in the range available to the
judge affects his choice of sentences. Finally, in numerous cases . . . the aggravating fact raised the whole range – both
the top and bottom. Those courts, in holding that such a fact was an element, did not bother with any distinction
between changes in the maximum and the minimum. What mattered was simply the overall increase in the punishment
provided by law,” 530 U.S. at 518, 521-22 (Thomas, J., concurring); see also, Rethinking Mandatory Minimums After
Apprendi, 96 NORTHWESTERN UNIVERSITY LAW REVIEW 811 (2002); Levine, The Confounding Boundaries of
“Apprendi-land”: Statutory Minimums and the Federal Sentencing Guidelines, 29 AMERICAN JOURNAL OF CRIMINAL
LAW 377 (2002).
factor that has always been considered by sentencing courts to bear on punishment . . . and
dictated the precise weight to be given that factor.” McMillan, 477 U.S. at 89-90. That factor
need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable 73
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,” Loving v. United States,
517 U.S. 748, 757 (1996), the Supreme Court has observed that “Congress has the power to
define criminal punishments without giving the courts any sentencing discretion,” United States v.
Chapman, 500 U.S. 453, 467 (1991). Thus, the lower federal courts have regularly upheld 74
mandatory minimum statutes when challenged on separation of powers grounds, and the
Supreme Court has denied any separation of powers infirmity in the federal sentencing guideline
system which might be thought to produce its own form of mandatory minimums, Mistretta v. 75
United States, 488 U.S. 361 (1989).
The equal protection objections to the mandatory minimums that attach to the sale and possession
of cocaine base (crack), 21 U.S.C. 841, 844, flow from the disparate treatment afforded the two
forms of cocaine. The penalties for possession with intent to distribute 50 grams of crack are the
same as those for possession with intent to distribute 5,000 grams of cocaine powder, 21 U.S.C.
73 Of course, Harris was not meant to serve as either an endorsement or condemnation of mandatory minimum
sentencing as such: “The Court is well aware that many question the wisdom of mandatory minimum sentencing.
Mandatory minimums, it is often said, fail to account for the unique circumstances of offenders who warrant a lesser
penalty. These criticisms may be sound, but they would persist whether the judge or the jury found the facts given rise
to the minimum,” 530 U.S. at 568.
“I do not mean to suggest my approval of mandatory minimum sentences as a matter of policy. During the past two
decades, as mandatory minimum sentencing statutes have proliferated in number and importance, judges, legislators,
lawyers, and commentators have criticized those statutes, arguing that they negatively affect the fair administration of
the criminal law, a matter concern to judge sand to legislators alike.
“Mandatory minimum statutes are fundamentally inconsistent with Congress’ simultaneous effort to create a fair,
honest, and rational sentencing system through the use of Sentencing Guidelines. Unlike Guideline sentences, statutory
mandatory minimums generally deny the judge the legal power to depart downward, no matter how unusual the special
circumstances that call for leniency. They rarely reflect an effort to achieve sentencing proportionality – a key element
of sentencing fairness that demands that the law punish a drug ‘kingpin’ and a ‘mule’ differently. They transfer
sentencing power to prosecutors, who can determine sentences through the charges they decide to bring, and who
thereby have reintroduced much of the sentencing disparity that Congress created Guidelines to eliminate. They rarely
are based upon empirical study. And there is evidence that they encourage subterfuge leading to more frequent
downward departures (on a random basis), thereby making them comparatively ineffective means of guaranteeing
tough sentences,” 530 U.S. at 570-71 (Breyer, J., concurring in part and concurring in the judgment).
74 United States v. Kaluna, 192 F.3d 1188, 1199 (9th Cir. 1999); United States v. Rasco, 123 F.3d 222, 226-27 (5th Cir.
1997); United States v. Washington, 109 F.3d 335, 338 (7th Cir. 1997); United States v. Prior, 107 F.3d 654, 660 (8th
75 Mistretta, sentenced under the guidelines to 18 months’ imprisonment for conspiracy to distribute cocaine, argued
that the guidelines constituted an unconstitutional delegation of Congress’ legislative authority and that the service of
judges upon the Commission constituted extrajudicial service at odds with the separation of powers doctrine. The Court
rejected both arguments concluding “that in creating the Sentencing Commission . . . Congress neither delegated
excessive legislative power nor upset the constitutionally mandated balance of powers among the coordinate
Branches,” 488 U.S. at 412.
841(b)(1)(A)(ii), (iii). The 100:1 ratio between the two continues through the federal sentencing
structure with one exception. There is no mandatory minimum for simple possession of powder
cocaine, but simple possession of 5 grams or more of crack is punishable by imprisonment for not
less than 5 years, 21 U.S.C. 844. The sentencing difference has a racially disparate impact that 76
invites equal protection analysis.
The Fifth Amendment due process clause embodies an equal protection component confining
federal action in the manner that the Fourteenth Amendment equal protection clause confines 77
state action, United States v. Armstrong, 517 U.S. 456, 464 (1996). Statutes are subject to strict
scrutiny under the equal protection clause when they contain express racial classifications as well
as when, though race neutral on their face, they are motivated by a racial purpose or object, Miller
v. Johnson, 515 U.S. 900, 913 (1995). Although insufficient on its own, a racially adverse impact
is one factor to be considered in the determination of whether a facially neutral statute is racially
motivated, Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264
(1977). A statute will survive strict scrutiny only if narrowly tailored to serve a compelling
governmental interest, Miller v. Johnson, 515 U.S. at 920. A statutory classification that is not
racially motivated or similarly suspect and thus not subject to strict scrutiny will pass
constitutional muster if it is based on some rational justification, Heller v. Doe, 509 U.S. 312, 320
One federal court concluded that the disparate penalties had a disparate racial impact, were
subject to, and could not withstand equal protection strict scrutiny, United States v. Clary, 846
F.Supp. 768 (E.D.Mo. 1994). The decision was overturned on appeal under an analysis that
rejected, as have other courts, strict scrutiny in favor of a rational basis standard, United States v. th78
Clary, 34 F.3d 709 (8 Cir. 1994).
76 United States Sentencing Commission, Cocaine and Federal Sentencing Policy, 62-63 (2002)(Blacks make up
30.5% of powder cocaine offenders and 84.7% of crack offenders).
77 “No person shall . . . be deprived of life, liberty, or property, without due process of law . . . .” U.S.Const. Amend.V.
“ . . . [N]or shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S.Const.
Amend. XIV, §1.
The exercise of prosecutorial discretion on the basis of race offends equal protection, 571 U.S. at 464-65. In Armstrong,
the defendant sought discovery in order to determine whether racial factors influenced the decision of which crack
defendants should be tried in federal court and which to be left to the less severe jeopardy of state law. The Court held
that in order to be entitled to discovery, a defendant must show that similarly situated offenders of other races were not
78 Each of the federal circuits has rejected equal protection challenges to the 100:1 cocaine sentencing scheme: United
States v. Eirby, 262 F.3d 31, 41 (1st Cir. 2001); United States v. Moore, 54 F.3d 92, 96-9 (2d Cir. 1995); United States th
v. Frazier, 981 F.2d 92, 95 (3d Cir. 1992); United States v. Perkins, 108 F.3d 512, 518-19 (4 Cir. 1997); United States thth
v. McKinney, 53 F.3d 664, 678 (5 Cir. 1995); United States v. Washington, 127 F.3d 510, 516-18 (6 Cir. 1997); thth
United States v. Jones, 54 F.3d 1234, 1293-294 (7 Cir. 1995); United States v. Patterson, 258 F.3d 788, 791 (8 Cir. th
2001); United States v. Jackson, 84 F.3d 1154, 1161 (9 Cir. 1996); United States v. Williams, 45 F.3d 1481, 1485-486 thth
(10 Cir. 1995); United States v. Matthews, 168 F.3d 1234, 1250-251 (11 Cir. 1999); United States v. Johnson, 40
F.3d 436, 439-41 (D.C.Cir. 1994).
The Minnesota Supreme Court has held that a 10:3 crack/powder sentencing ratio found in state law fails to satisfy the
rational basis standard of the Minnesota equal protection clause, State v. Russell, 477 N.W. 886 (Minn. 1991). See
generally, CRS Report 97-743, Federal Cocaine Sentencing: Legal Issues, by Paul Starett Wallace Jr. (May 4, 1999).
Double jeopardy bans trying a defendant twice for the same offense79 and ex post facto bars 80
retroactive criminal statutes. More precisely, the double jeopardy clause “protects against
successive prosecutions for the same offense after acquittal or conviction and against multiple
criminal punishments for the same offense,” Monge v. California, 524 U.S. at 727-28. The ex post
facto clauses, on the other hand, preclude laws that “retroactively alter the definition of crimes or
[retroactively] increase the punishment for criminal acts,” California Dept. of Corrections v.
Morales, 514 U.S. 499, 504 (1995).
Some argue that recidivist mandatory minimums offend both the double jeopardy and ex post
facto clauses. They are contrary to double jeopardy, it is said, because by using a first conviction
to justify an increased penalty for a second conviction they are in effect punishing the first
offense twice. They contravene ex post facto proscription when they are used to sentence a
defendant whose first conviction predates the recidivist statute, or so it is contended. The courts
have rejected both arguments.
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,” see e.g., Nichols v. United States, 511 U.S. 738, 747 (1994)(noting that repeat-
offender laws “penaliz[e] only the last offense committed by the defendant”). 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.” Monge v. California, 524 U.S. at 728 (some
Courts confronted with ex post facto challenges to recidivist statutes have similarly focused upon 81
the “latest crime” and not upon the first.
79 “. . .[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb. . . .” U.S.Const.
Amend.V; the double jeopardy clause is binding on the states through the due process clause of the Fourteenth
Amendment, Monge v. California, 524 U.S. 721, 727 (1998).
80 “No . . . ex post facto law shall be passed . . . .” U.S.Const. Art.I, §9. “No state shall . . . pass any . . . ex post facto
law . . .” U.S.Const. Art.I, §10.
81 Gryger v. Burke, 334 U.S. 728, 732 (1948)(“Nor do we think the fact that one of the convictions that entered into the
calculations by which petitioner became a fourth offender occurred before the Act was passed, makes the Act invalidly th
retroactive. . . .”); United States v. Kaluna, 152 F.3d 1069, 1073 (9 Cir. 1998); United States v. Rasco, 123 F.3d 222, thth
227 (5 Cir. 1997); United States v. Washington, 109 F.3d 335, 337-38 (7 Cir. 1997); United States v. Farmer, 78 th
F.3d 836, 839-41 (8 Cir. 1996).
(* Mandatory Minimum Term of Imprisonment or a Fine)82
(+ Safety Valve Offenses)
2 U.S.C. 390* (contempt of Congress in a contested election case: imprisonment for not less than
7 U.S.C. 13a* (failure to comply with certain Commodities Futures Exchange Commission cease
and desist orders: a fine of not more than $500,000 or imprisonment for not less than 6
months nor more than 1 year or both) (+ imprisonment at the discretion of the court)
7 U.S.C. 13b* (failure to comply with certain Commodities Futures Exchange Commission cease
and desist orders: a fine of not more than the higher of $100,000 or 3 times the monetary
gain, or imprisonment for not less than 6 months nor more than 1 year or both) (+
imprisonment at the discretion of the court)
7 U.S.C. 15b (violation of regulations relating to cotton futures contracts: a fine of not less than
$100 nor more than $500 and at the discretion of the court imprisonment for not less than 30
nor more than 90 days)
7 U.S.C. 195* (failure to comply with certain orders of the Secretary under the Packers and
Stockyards Act: a fine of not less than $500 nor more than $10,000, or imprisonment for not
less than 6 months nor more than 5 years or both) (+ imprisonment at the discretion of the
7 U.S.C. 2024 (2d conviction for fraudulent use of a food stamp access device worth between
$100 and $5,000: imprisonment for not less than 6 months nor more than 5 years)
within the U.S.: a fine and imprisonment for not less than 3 nor more than 10 years (1 and
2d violations) and imprisonment for not less than 5 nor more than 15 years (3d and
8 U.S.C. 1534* (disclosure of classified information by a special attorney in immigration removal
cases: imprisonment for not less than 10 nor more than 25 years)
12 U.S.C. 617* (price fixing by officers of corporations organized to do foreign banking: a fine of
not less than $1,000 nor more than $5,000 or imprisonment for not less than 1 nor more than
82 The lists do not include offenses under the Uniform Code of Military Justice, the District of Columbia Code, or any
of the criminal codes of the various territories, commonwealths, or possessions over which Congress has authority.
imprisonment for not less than 2 nor more than 10 years)
15 U.S.C. 8* (trusts in restraint of import trade: a fine of not less than $100 nor more than $5000
and imprisonment, in the discretion of the court, for a term not less than three months nor
exceeding twelve months)
15 U.S.C. 1245 (possession of a ballistic knife during the commission of a federal crime of
violence: imprisoned not less than five years and not more than ten years, or both)
16 U.S.C. 413* (damaging structures or vegetation on a national military park: a fine of not more
than $1000 or imprisonment for not less than 5 nor more than 30 days or both)
16 U.S.C. 414* (trespassing for hunting purposes on a national military park: a fine of not more
than $1000 or imprisonment for not less than 5 nor more than 30 days or both)
18 U.S.C. 33 (destruction of commercial motor vehicles or their facilities involving high-level
radioactive waste: any term of years but not less than 30 years)
18 U.S.C. 175c(c)(1)(unlawful possession of variola virus: imprisonment for not less than 25
years or for life)
imprisonment for not less than 30 years or for life)
18 U.S.C. 225 (continuing financial crimes enterprise: imprisonment for not less than 10 years
and “may be life”)
18 U.S.C. 844(f)* (burning or bombing federal property: imprisonment for not less than 5 years
nor more than 20 years; not less than 7 nor more than 40 years’ imprisonment if the offense
involves personal injury or a substantial risk of personal injury; if death results, death or
imprisonment for not less than 20 years or life)
during the commission of a federal felony: imprisonment for 10 years’ imprisonment for 1
offense, 20 for the second and any subsequent offense)
18 U.S.C. 844(i)* (burning or bombing property affecting interstate commerce: imprisonment for
not less than 5 years nor more than 20 years; not less than 7 nor more than 40 years’
imprisonment if the offense involves personal injury or a substantial risk of personal injury; if
death results, death or imprisonment for not less than 20 years or life)
18 U.S.C. 844(o) (transfer of explosives knowing they will be used to commit a crime of violence
or drug trafficking offense: imprisonment for 10 years)
18 U.S.C. 924(c)(1) (use of or possession of a firearm during the commission of a crime of
violence or drug trafficking: imprisonment for not less 5 years generally; imprisonment for
not less than 7 years if the firearm is brandished; imprisonment for not less than 10 years if
the firearm is discharged or involves a short-barreled rifle or shotgun; imprisonment for not
less than 25 years for second or subsequent offenses; imprisonment for not less than 30 years
for a machinegun or silencer; life imprisonment for second or subsequent machinegun or
not less than 15 years’ imprisonment)
18 U.S.C. 929 (use of armor piercing ammunition during the commission of a crime of violence
or drug trafficking: not less than 5 years)
18 U.S.C. 1121(b) (killing a state law enforcement officer by a federal prisoner or while
transferring a prisoner interstate: not less than 20 years and may be punishable by death or
18 U.S.C. 1591 (sex trafficking using force or children, imprisonment for any term of years not
less than 10 years or for life; not less than 15 years or for life if the child is under 14 years of
age at the time)
imprisonment for not less than 10 years)
18 U.S.C. 1917* (interfering with civil service examinations: imprisonment for not less than 10
days nor more than 1 year or a fine of not less than $100 or both)(+ imprisonment at the
discretion of the court)
imprisonment for any term of years not less than 30 or for life)
18 U.S.C. 2113(e) (killing or hostage taking during the course of robbing a federally insured
bank: not less than 10 years; death or life imprisonment if death results)
imprisonment for not less than 5 years nor more than 30 years)
18 U.S.C. 2251 (sexual exploitation of children: imprisonment for not less than 15 nor more than
upon a 3d conviction, imprisonment for not less than 35 years nor more than life; where death
results, death or imprisonment for any term of years not less than 30 years or life)
18 U.S.C. 2252(b) (trafficking in material related to sexual exploitation of children: imprisonment
for not less than 5 nor more than 15 years; 2d and subsequent offenses, not less than 15 years
nor more than 30 years)
18 U.S.C. 2252A(b)(1) (trafficking in material related to sexual exploitation of children including
by computer: imprisonment for not less than 5 nor more than 15 years; 2d and subsequent
offenses, not less than 15 years nor more than 30 years)
imprisonment for not less than nor more than 10 years)
18 U.S.C. 2257 (2d and subsequent violation of the recordkeeping requirements concerning
sexual exploitation of children: imprisonment for not less than 2 nor more than 10 years)
18 U.S.C. 2257A (2d and subsequent violation of the recordkeeping requirements concerning
simulated sexual activity: imprisonment for not less than 2 nor more than 10 years)
18 U.S.C. 2260(a) (production material involving sexual exploitation of children for importation
into the U.S.: imprisonment for not less than 15 nor more than 30 years; upon a 2d
conviction, imprisonment for not less than 25 nor more than 50 years; upon a 3d conviction,
imprisonment for not less than 35 years nor more than life; where death results, death or
imprisonment for any term of years not less than 30 years or life)
18 U.S.C. 2260(b) (trafficking in material related to sexual exploitation of children for
importation into the U.S: imprisonment for not less than 5 nor more than 15 years; 2d and
subsequent offenses, not less than 15 years nor more than 30 years)
18 U.S.C. 2260A (federal sex offenses by registered sex offenders: imprisonment for a
consecutive 10 years)
18 U.S.C. 2332g(c)(1) (unlawful possession of an anti-aircraft missile: imprisonment for not less
than 25 years or for life)
18 U.S.C. 2332g(c)(2)(use, attempted used, or possession and threat to use an anti-aircraft
missile: imprisonment for not less than 30 years or for life)
18 U.S.C. 2332h(c)(1)( unlawful possession of a radiological dispersal device: imprisonment for
not less than 25 years or for life)
18 U.S.C. 2332h(c)(2)(unlawful use, attempted used, or possession and threat to use an
radiological dispersal device: imprisonment for not less than 30 years or for life)
18 U.S.C. 2422 (coercing or entice a child to engage in sexual activity: imprisonment for not less
than 10 years or for life)
18 U.S.C. 2423 (transportation of a child for immoral purpose: imprisonment for not less than 10
years or for life)
18 U.S.C. 3559(c) (3 strikes: an offender convicted of a serious violent felony after having been
convicted for 2 or more serious violent felonies or serious drug offenses must be sentenced to
18 U.S.C. 3559(e) (2 strikes: an offender convicted of a serious sex offense against a child after
having been convicted of an earlier serious sex offense must be sentenced to life
19 U.S.C. 283 (failure to pay duty on saloon stores: not less than 3 months nor more than 2 years
21 U.S.C. 212* (offenses involving the practice of pharmacy in the consular districts of China: a
fine of not less than $50 nor more than $100 or imprisonment for not less than 1 month nor
more than 60 days, or both) (+ imprisonment at the discretion of the court)
21 U.S.C. 841(b)(1)(A)+ (drug trafficker where the offender has 2 or more prior convictions for
violation of 21 U.S.C. 849(drug dealing at a truck stop), 859 (dealing to minors), 860 (dealing
near a school), 861 (using minors to deal): mandatory life imprisonment)
21 U.S.C. 841(b)(1)(A)*+ (drug trafficking in very substantial amounts of controlled substances
(e.g., a kilogram or more of heroin: imprisonment for not less than 10 years nor more than
life; imprisonment for not less than 20 years nor more than life if the offender has a prior
felony drug conviction or if death or serious bodily injury results)
100 grams of heroin: imprisonment for not less than 5 nor more than 40 years; imprisonment
for not less than 20 years nor more than life if death or serious bodily injury results;
imprisonment for not less than 10 years nor more than life if the offender has a prior drug
21 U.S.C. 841(b)(1)(C)*+ (drug trafficking in schedule I or II controlled substances or 1 gram of
flunitrazepam: imprisonment for not less than 20 years nor more than life if death or serious
bodily injury results; imprisonment for not less than 10 years nor more than life if the
offender has a prior drug felony conviction; imprisonment for life if the offender has a prior
drug felony conviction and death or serious bodily injury results)
21 U.S.C. 844*+ (simple possession of a controlled substance: imprisonment for not less than 5
nor more than 20 years for possession of cocaine base (crack); imprisoned not less than 90
days nor more than 3 years if the offender has 2 or more prior drug convictions;
imprisonment for not less than 15 days nor more than 2 years if the offender has a prior drug
21 U.S.C. 846 *+(attempts and conspiracies to violate any of the offenses in the Controlled
Substances Act carry the same sentences as the underlying offenses)
21 U.S.C. 848(a) (drug kingpin - continuing criminal enterprise violations: imprisonment for not
less than 30 years nor more than life for previous offenders, not less than 20 years nor more
than life otherwise)
21 U.S.C. 848(e)(1) (killing in furtherance of a serious drug trafficking violations or killing a law
enforcement official in furtherance of a controlled substance violation: death, life
imprisonment, or imprisonment for a term of years not less than 20 years)
imprisonment for not more than twice the otherwise applicable maximum term, but not less
than the greater of the otherwise applicable minimum term or 1 year imprisonment; three
times the otherwise applicable maximum term for 2d offenders)
21 U.S.C. 860 (distribution of controlled substances near schools and colleges: imprisonment for
not more than twice the otherwise applicable maximum term, but not less than the greater of
the otherwise applicable minimum term or 1 year imprisonment; three times the otherwise
applicable maximum term but not less than the greater of the otherwise applicable minimum
term or 3 years’ imprisonment for 2d offenders)
21 U.S.C. 861 (distribution to a pregnant person or use of those under 21 years of age to distribute
controlled substances: imprisonment for not more than twice the otherwise applicable
maximum term, but not less than the greater of the otherwise applicable minimum term or 1
year imprisonment; three times the otherwise applicable maximum term)
21 U.S.C. 960(b)(1)*+ (illicit drug importing/exporting of very substantial amounts of controlled
substances (e.g., a kilogram or more of heroin): imprisonment for not less than 10 years nor
more than life; imprisonment for not less than 20 years nor more than life if the offender has
a prior felony drug conviction or if death or serious bodily injury results)
21 U.S.C. 960(b)(2)*+ (illicit drug importing/exporting of substantial amounts of controlled
substances (e.g., 100 grams of heroin): imprisonment for not less than 5 nor more than 40
years; imprisonment for not less than 20 years nor more than life if death or serious bodily
injury results; imprisonment for not less than 10 years nor more than life if the offender has a
prior drug felony conviction)
21 U.S.C. 960(b)(3)*+ (illicit drug importing/exporting of schedule I or II controlled substances
or 1 gram of flunitrazepam: imprisonment for not more than 20 years, but not less than 20
years nor more than life if death or serious bodily injury results; imprisonment for not more
than 30 years if the offender has a prior drug felony conviction; imprisonment for life if the
offender has a prior drug felony conviction and death or serious bodily injury results)
21 U.S.C. 963*+ (attempt or conspiracy to commit any of the drug import/export offenses are
subject to the same penalties as the underlying offense)
22 U.S.C. 422l (perjury before consular officers: imprisonment for not less than 1 nor more than 3
33 U.S.C. 410* (violation of floating timber regulations: a fine of not less than $500 nor more
than $2,500 or imprisonment for not less than 30 days nor more than 1 year, or both in the
discretion of the court)
33 U.S.C. 411* (certain navigable waters offenses: a fine of not more than $2,500 or
imprisonment for not less than 30 days nor more than 1 year, or both in the discretion of the
33 U.S.C. 441* (deposit of refuse in various harbors: a fine of not less than $250 nor more than
$2,500 or imprisonment for not less than 30 days nor more than 1 year, or both “as the judge
before whom conviction is obtained shall decide”) (+ imprisonment at the discretion of the
33 U.S.C. 447 (bribery of harbor employees: not less than 6 months’ nor more than 1 year
46 U.S.C. App. 1228* (violations of the Merchant Marine Act: a fine or “imprisonment for not
less than one year or more than five years, or by both fine and imprisonment”)
47 U.S.C. 13 (refuse to afford telegraph service: a fine of not more than $1000 and imprisonment
for not less than 6 months)
47 U.S.C. 220* (false entries in communication common carrier records: a fine of not less than
$1,000 nor more than $5000 or imprisonment for not less than 1 nor more than 3 years)
18 U.S.C. 245* (discriminatory obstruction of enjoyment federal protected activities where death
18 U.S.C. 924(j)(1) (murder while in possession of a firearm during the commission of a crime of
violence or drug trafficking)
18 U.S.C. 2241 (aggravated sexual assault of a child under 12 years of age in the special maritime
and territorial jurisdiction of the U.S.: death, imprisonment for any term of years not less than
18 U.S.C. 2283 (unlawful maritime transportation of explosive, biological, chemical, radioactive
or nuclear material where death results)
18 U.S.C. 3559(f) (murder of a child in violation of federal law: death, life imprisonment or
imprisonment for not more than 30 years)
18 U.S.C. 34 (destruction of aircraft, commercial motor vehicles or their facilities where death
18 U.S.C. 115 (kidnapping with death resulting of the member of the family of a federal official
or employee to obstruct or retaliate)
18 U.S.C. 115 (1st degree murder of the member of the family of a federal official or employee to
obstruct or retaliate)
18 U.S.C. 1111 (1st degree murder within the special maritime and territorial jurisdiction of the
18 U.S.C. 1716 (mailing injurious articles with intent to injury or damage property where death
18 U.S.C. 1958* (use of interstate facilities in furtherance of a murder-for-hire where death
18 U.S.C. 3559 (federal violent felony or violation of 18 U.S.C. 2422 (coercing or enticing
interstate travel for sexual purposes), 2423(transporting minors for sexual purposes), or
18 U.S.C. 115 (kidnapping or conspiring to kidnap the member of the family of a federal official
or employee to obstruct or retaliate)
18 U.S.C. 115 (2d degree murder of the member of the family of a federal official or employee to
obstruct or retaliate)
18 U.S.C. 115 (conspiracy to murder the member of the family of a federal official or employee to
obstruct or retaliate)
18 U.S.C. 241* (conspiracy against civil rights involving attempts to kill, or kidnap, attempted
kidnapping, sexual assault or attempted sexual assault)
attempted kidnaping, sexual assault or attempted sexual assault)
18 U.S.C. 245* (discriminatory obstruction of enjoyment federal protected activities involving
attempts to kill, or kidnap, attempted kidnapping, sexual assault or attempted sexual assault)
18 U.S.C. 831 (prohibited transactions in nuclear material where death or serious bodily injury
18 U.S.C. 924(o) (conspiracy to violate 18 U.S.C. 924(c)(use of or possession of a machinegun or
firearm equipped with a silencer during the commission of a crime of violence or drug
18 U.S.C. 1111 (2d degree murder within the special maritime and territorial jurisdiction of the
18 U.S.C. 1117 (conspiracy to commit murder in violation of 18 U.S.C. 1111 (within the special
maritime and territorial jurisdiction of the U.S.), 1114 (of a federal officer or employee), 1116
(of a foreign dignitary), or 1119 (of an American by an American overseas)
18 U.S.C. 1584* (sale into involuntary servitude involving kidnapping or rape or where death
18 U.S.C. 1952 (Travel Act violations (interstate travel in aid of racketeering enterprises) where
18 U.S.C. 2242 (sexual abuse committed in special maritime or territorial jurisdiction of the
18 U.S.C. 3559(f)(2)(kidnapping or maiming of a child in violation of federal law: imprisonment
for any term of years or for life but not less than 25 years)
18 U.S.C. 3559(f)(3)(a crime of violence involving serious injury or use of a dangerous weapon
committed against a child in violation of federal law: imprisonment for any term of years or
fore life but not less than 10 years)
49 U.S.C. 46503 (interfering with airport security screening personnel while armed with a
18 U.S.C. 924(c) (2d conviction for commission of a crime of violence or drug trafficking while
armed with a machinegun or firearm with a silencer)
18 U.S.C. 1963 (racketeer and corrupt influenced organization (RICO) offenses where the
18 U.S.C. 2332h(c)(3)( unlawful possession of a radiological dispersal device where death
18 U.S.C. 2 (aiding and abetting any of the offenses listed – offenders are treated as principals in
the predicate offense)
18 U.S.C. 2247 (doubles the otherwise applicable penalties for sexual abuse violations if the
offender has a prior sex offense conviction)
18 U.S.C. 2426 (doubles the otherwise applicable penalties for Mann Act (transportation for
illegal sexual activity) violations if the offender has a prior sex offense conviction)
21 U.S.C. 846 (attempts or conspiracies to violate any provision of the Controlled Substance Act
is subject to the same penalties as the completed offense)
21 U.S.C. 860(c) (use of one under 21 years of age to distribution of controlled substances near
schools and colleges: imprisonment for not more than three times the otherwise applicable
21 U.S.C. 962 (violation of the drug import/export law by an offender with a prior conviction for
violation of those provisions is punishable by imprisonment for twice the term otherwise
21 U.S.C. 963 (attempts or conspiracies to violate any provision of the Controlled Substance
Import and Export Act are subject to the same penalties as the completed offense)
Albonetti, The Effects of the “Safety Valve” Amendment on Length of Imprisonment for Cocaine
Trafficking/Manufacturing Offenders: Mitigating the Effects of Mandatory Minimum Penalties
and Offender’s Ethnicity, 87 IOWA LAW REVIEW 401 (2002)
Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND (1765)
Blumstein, Cohen, Martin & Tonry, RESEARCH ON SENTENCING: THE SEARCH FOR REFORM
Bottomley, Parole in Transition: A Comparative Study of Origins, Developments, and Prospects
for the 1990s, 12 CRIME & JUSTICE: A REVIEW OF RESEARCH 319 (1990)
Bowman, The Quality of Mercy Must be Restrained and Other Lessons in Learning to Love the
Federal Sentencing Guidelines, 1996 WISCONSIN LAW REVIEW 679 (1996)
Bradley, Proportionality in Capital and Non-Capital Sentencing: An Eighth Amendment Enigma,
Cassell, Too Severe?: A Defense of the Federal Sentencing Guidelines (And a Critique of Federal
Mandatory Minimums), 56 STANFORD LAW REVIEW 1017 (2004)
Chitty, A PRACTICAL TREATISE ON CRIMINAL LAW (1836)
Davis, DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY (1969)
Dershowitz, Background Paper, FAIR AND CERTAIN PUNISHMENT: REPORT OF THE TWENTIETH
CENTURY FUND (1976)
Dubber, Recidivist Statutes as A Rational Punishment, 43 BUFFALO LAW REVIEW 689 (1995)
Farabee, Disparate Departures Under the Federal Sentencing Guidelines: A Tale of Two
Districts, 30 CONNECTICUT LAW REVIEW 569 (1998)
Federal Courts Study Committee, REPORT OF THE FEDERAL COURTS STUDY COMMITTEE (1990)
Federal Judicial Center, The Consequences of Mandatory Minimum Prison Terms: A Summary of
Recent Findings (1994)
Frankel, CRIMINAL SENTENCES: LAW WITHOUT ORDER (1973)
__, Lawlessness in Sentencing, 41 UNIVERSITY OF CINCINNATI LAW REVIEW 1 (1972)
Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of
Sentencers, 101 YALE LAW JOURNAL 1681 (1992)
Frost, SENTENCING REFORM: EXPERIMENTS IN REDUCING DISPARITY (1982)
Gardner, The Determinate Sentencing Movement and the Eighth Amendment: Excessive
Punishment Before and After Rummel v. Estelle, 1980 DUKE LAW JOURNAL 1103
Granucci, “Nor Cruel and Unusual Punishments Inflicted:” The Original Meaning, 57
CALIFORNIA LAW REVIEW 839 (1969)
Hall, THEFT, LAW AND SOCIETY (1952)
Hart, The Aims of the Criminal Law, 23 LAW AND CONTEMPORARY PROBLEMS 401 (1958)
Hatch, The Role of Congress in Sentencing: The United States Sentencing Commission,
Mandatory Minimum Sentences, and the Search for a Certain and Effective Sentencing System,
Herman & Murphy, Mandatory Minimum Drug Sentences – Can They Be Any Less Draconian?
Kadish, Legal Norm and Discretion in the Police and Sentencing Processes, 75 HARVARD LAW
REVIEW 904 (1962)
Kennedy, The State, the Criminal Law, and Racial Discrimination: A Comment, 107 HARVARD
LAW REVIEW 1255 (1994)
Klein & Steiker, The Search for Equality in Criminal Sentencing, 2002 SUPREME COURT REVIEW
Kobil, The Quality of Mercy Strained: Wrestling the Pardoning Power from the King, 69 TEXAS
LAW REVIEW 569 (1991)
Levine, The Confounding Boundaries of “Apprendi-land”: Statutory Minimums and the Federal
Sentencing Guidelines, 29 AMERICAN JOURNAL OF CRIMINAL LAW 377 (2002)
Lindsay, Indeterminate Sentence and the Parole System, 16 JOURNAL OF CRIMINAL LAW &
CRIMINOLOGY 9 (1925)
Lowenthal, Mandatory Sentencing Laws: Undermining the Effectiveness of Determinate
Sentencing Reform, 81 CALIFORNIA LAW REVIEW 61 (1993)
Luna, Gridland: An Allegorical Critique of Federal Sentencing, 96 JOURNAL OF CRIMINAL LAW
& CRIMINOLOGY 25 (2005)
Mackey, Rationality Versus Proportionality: Reconsidering the Constitutional Limits on Criminal
Sanctions, 51 TENNESSEE LAW REVIEW 623 (1984)
Marvell & Moody, The Lethal Effects of Three-Strike Laws, 30 JOURNAL OF LEGAL STUDIES 89
National Center for State Courts, CLEMENCY: LEGAL AUTHORITY, PROCEDURE, AND STRUCTURE
Newman, CONVICTION: THE DETERMINATION OF GUILT OR INNOCENCE WITHOUT TRIAL (1966)
Oberdorfer, Mandatory Sentencing: One Judge’s Perspective – 2002, 40 AMERICAN CRIMINAL
LAW REVIEW 11 (2003)
O’Donnell, Churgin & Curtis, TOWARD A JUST AND EFFECTIVE SENTENCING SYSTEM: AGENDA
FOR LEGISLATIVE REFORM (1977)
Ogletree, The Death of Discretion? Reflections on the Federal Sentencing Guidelines, 101
HARVARD LAW REVIEW 1938 (1988)
O’Hear, The Original Intent of Uniformity in Federal Sentencing, 74 UNIVERSITY OF CINCINNATI
LAW REVIEW 749 (2006)
Packer, THE LIMITS OF THE CRIMINAL SANCTION (1968)
Payne, Does Inter-Judge Disparity Really Matter? An Analysis of the Effects of Sentencing
Reforms in Three Federal District Courts, 17 INTERNATIONAL REVIEW OF LAW AND ECONOMICS
Pound, CRIMINAL JUSTICE IN AMERICA (1930)
Ristroph, Desert, Democracy, and Sentencing Reform, 96 JOURNAL OF CRIMINAL LAW &
CRIMINOLOGY 1293 (2006)
Rubin, THE LAW OF CRIMINAL CORRECTION (2d ed. 1973)
Saris, Below the Radar Screens: Have the Sentencing Guidelines Eliminated Disparity? One
Judge’s Perspective, 30 SUFFOLK UNIVERSITY LAW REVIEW 1027 (1997)
Schulhofer, Rethinking Mandatory Minimums, 28 WAKE FOREST LAW REVIEW 199 (1993)
Schultz, No Joy in Mudville Tonight: The Impact of “Three Strike” Laws on State and Federal
Correctional Policy, Resources, and Crime Control 557 (2000)
Singer, JUST DESERTS: SENTENCING BASED ON EQUALITY AND DESERT (1979)
Sklansky, Cocaine, Race, and Equal Protection, 47 STANFORD LAW REVIEW 1283 (1995)
Spade, Beyond the 100:1 Ratio: Towards a Rational Cocaine Sentencing Policy, 38 ARIZONA
LAW REVIEW 1233 (1996)
Sporkin, Hutchinson, & Roberts, Debate: Mandatory Minimums in Drug Sentencing: A Valuable
Weapon in the War on Drugs or a Handcuff on Judicial Discretion? 36 AMERICAN CRIMINAL
LAW REVIEW 1279 (1999)
Stephen, HISTORY OF THE CRIMINAL LAW OF ENGLAND (1883)
Stewart, Sentencing in the States: The Good, the Bad, and the Ugly, 39 OSGOODE HALL LAW
JOURNAL 413 (2001)
Stith & Cabranes, FEAR OF JUDGING: SENTENCING GUIDELINES IN THE FEDERAL COURTS (1998)
__, Judging Under the Federal Sentencing Guidelines, 91 NORTHWESTERN UNIVERSITY LAW
REVIEW 1247 (1997)
Tappan, Sentencing Under the Model Penal Code, 23 LAW AND CONTEMPORARY PROBLEMS 528
Tonry, SENTENCING MATTERS (1996)
Turnbladh, A Critique of the Model Penal Code Sentencing Proposals, 23 LAW AND
CONTEMPORARY PROBLEMS 544 (1958)
United States General Accounting Office, Federal Drug Offenses: Departures from Sentencing
Guidelines and Mandatory Minimum Sentences, Fiscal Years 1999-2001, GAO-04-105 (Oct.
United States Sentencing Commission, Guidelines Manual (2007)
__, Federal Sentencing Statistics by State, District & Circuit (2006)
__, Special Report to the Congress: Cocaine and Federal Sentencing Policy (1997)
__, Special Report to the Congress: Downward Departures from the Federal Sentencing
__, Special Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal
Justice System (1991)
Villa, Retooling Mandatory Minimum Sentencing: Fixing the Federal “Statutory Safety Valve” to
Act as an Effective Mechanism for Clemency in Appropriate Cases, 21 HAMLINE LAW REVIEW
Weinstein, Fifteen Years After the Federal Sentencing Revolution: How Mandatory Minimums
Have Undermined Effective and Just Narcotics Sentencing, 40 AMERICAN CRIMINAL LAW
REVIEW 87 (2003)
Wheeler, Toward a Theory of Limiting Punishment: An Examination of the Eighth Amendment, 24
STANFORD LAW REVIEW 838 (1972)
Whiteside, The Reality of Federal Sentencing: Beyond the Criticism, 91 NORTHWESTERN
UNIVERSITY LAW REVIEW 1574 (1997)
Wilkins, Newton & Steer, Competing Sentencing Policies in a “War on Drugs” Era, 28 WAKE
FOREST LAW REVIEW 305 (1993)
Zalman, The Rise and Fall of the Indeterminate Sentence, 24 WAYNE LAW REVIEW 45 (1977)
Do Judicial “Scarlet Letters” Violate the Cruel and Unusual Punishments Clause of the Eighth
Amendment, 16 HASTINGS CONSTITUTIONAL LAW QUARTERLY 115 (1988)
The Eighth Amendment, Becarria, and the Enlightenment: An Historical Justification for the
Weems v. United States Excessive Punishment Doctrine, 24 BUFFALO LAW REVIEW 783 (1975)
Interpretation of the Eighth Amendment—Rummel, Solem and the Venerable Case of Weems v.
United States, 1984 DUKE LAW JOURNAL 789
Mandatory Minimum Sentences: Exemplifying the Law of Unintended Consequences, 28
FLORIDA STATE UNIVERSITY LAW REVIEW 935 (2001)
Rethinking Mandatory Minimums After Apprendi, 96 NORTHWESTERN UNIVERSITY LAW REVIEW
The “Safety Valve” Provision: Should the Government Get an Automatic Shut-Off Valve? 2002
UNIVERSITY OF ILLINOIS LAW REVIEW 529
Solem v. Helm: The Supreme Court Extends the Proportionality Requirement to Sentences of
Imprisonment, 1984 WISCONSIN LAW REVIEW 1401
United States v. Pho: Reasons and Reasonableness in Post-Booker Appellate Review, 115 YALE
LAW JOURNAL 2183 (2006)
The Verdict Is In: Throw Out Mandatory Sentences, 79 AMERICAN BAR ASSOCIATION JOURNAL
Senior Specialist in American Public Law