Federal Mandatory Minimum Sentencing Statutes: An Abbreviated Overview

Federal Mandatory Minimum Sentencing
Statutes: An Abbreviated Overview
Charles Doyle
Senior Specialist
American Law Division
Federal mandatory minimum sentencing statutes (mandatory minimums) demand
that execution 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 discretion, although they impose no limitations
upon prosecutorial discretion, or upon the 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 sentence and a certain
means of incapacitating the criminally dangerous. The Sentencing Commission and
others argue that mandatory minimums undermine the Sentencing Guidelines and
introduce disparity into the federal sentencing scheme. Still others respond that no
introduction is necessary; the guideline system already creates and tolerates considerable
Mandatory minimums come in several varieties: the “not-less-than,” the flat
sentence, and piggy-back versions. In any form, they are not per se unconstitutional,
although in rare instances they might be so grossly disproportionate as to offend the
Eighth Amendment’s cruel and unusual punishments clause.
This is an abbreviated version of CRS Report RL32040, Federal Mandatory
Minimum Sentencing Statutes, stripped of its citations, footnotes and appendices.
Types of Mandatory Minimums. Mandatory minimum statutes 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 “not less than” a
designated term of imprisonment. A few members of this “not less than” category are less
“mandatory” than others. 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 than mandatory, or at least less severe. Some of the other “not-
less-than” statutes permit the court to sentence an offender to a fine rather than to a

mandatory term of imprisonment. Moreover, prosecutors may negate the not-less-than
statutory minimums for a defendant they feel has provided “substantial assistance.”
A second generally recognized category of mandatory minimums consists of the flat
or single sentence statutes, the vast majority of which call for life imprisonment. Closely
related are the capital punishment statutes that require imposition of either the death
penalty or imprisonment either for some term of years or for life. 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 that
impose mandatory minimums.
Until the Supreme Court intervened in Booker v. United States to eliminate the
binding effect of the Sentencing Guidelines,1 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 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 continue to tilt heavily towards
Mandatory Minimums and the Sentencing Guidelines. 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, sketched the arguments traditionally offered in
support of mandatory minimums:
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

1 543 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).

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.
The report argued, however, that:
- only 4 of the 60 mandatory minimums were regularly prosecuted;
- mandatory minimums induce new sentencing disparities [others contend the extent
of earlier disparity was exaggerated and that disparity under the guidelines
- due to plea bargaining, 35% of the defendants who might have been charged and
sentenced under mandatory minimums were not;
- disparate application of mandatory minimum sentences . . . appears to be related
to race [some critics point to the crack-powdered cocaine sentencing distinction
rather than its attendant mandatory minimums as the culprit];
- 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 sentencing uniformity [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];
- uneven application deprives mandatory minimums of their potential to deter
[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
- mandatory minimums breed disparity by transferring judicial discretion to the
prosecution [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];
- in contrast to the calibrated approach of the guidelines, mandatory minimums
create cliffs where minuscule factual differences can have enormous sentencing
consequences [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];

- the amendment process of the Sentencing Guidelines makes them perpetually self-
correcting, 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 minimums.
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, 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.
Constitutional Boundaries. 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 confines legislative prerogatives
in any substantial way.
Mandatory minimums implicate considerations under the Eighth Amendment’s cruel
and unusual punishments clause. The clause bars mandatory capital punishment statutes.
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, a standard which
a sentence imposed under a mandatory minimum statute is likely to breach under extreme
The Fifth and Sixth Amendments insist 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.” 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. Yet the Court has declared that a fact, such as
a defendant’s criminal record or the brandishing of a firearm during the commission of
the offense, upon which imposition of a mandatory minimum rests need not be alleged
in the indictment, submitted to the jury, or proved beyond a reasonable doubt.
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,” the Supreme
Court has observed that “Congress has the power to define criminal punishments without
giving the courts any sentencing discretion.” Thus, the lower federal courts have regularly
upheld 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.

The equal protection objections to the mandatory minimums that attach to the sale
and possession of cocaine base (crack) 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. 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. The sentencing difference has a racially disparate
impact that invites equal protection analysis. One federal court concluded that the
disparate penalties had a disparate racial impact, was subject to, and could not withstand
equal protection strict scrutiny. The decision was overturned on appeal under an analysis
that rejected, as have other courts, strict scrutiny in favor of a rational basis standard.
Double jeopardy bans trying a defendant twice for the same offense and ex post facto
bars 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.” 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.” 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.”
Courts confronted with ex post facto challenges to recidivists statutes have similarly
focused upon the “latest crime” and not upon the first.