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The drug offenses reside principally in the Controlled Substances Act or the Controlled Substances Import and Export Act. The drug-related firearms offenses involve the possession and use of firearms in connection with serious drug offenses and instances in which prior drug convictions trigger mandatory sentences for unlawful firearms possession.
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Proposals to amend drug-related mandatory minimum sentence provisions surfaced during the 114th Congress. In the 115th Congress, Senator Grassley introduced the successor to those proposals for himself and a bi-partisan list of co-sponsors as S. 1917, the Sentencing Reform and Corrections Act of 2017. Many of the same issues are addressed in H.R. 4261 introduced by Representative Scott of Virginia. This is an overview of the law from which those proposals spring.
This report is available in an abridged version, CRS Report R45075, Mandatory Minimum Sentencing of Federal Drug Offenses in Short, without the citations to authority and origin of quotations found here.
As a general rule, federal judges must impose a minimum term of imprisonment upon defendants convicted of various controlled substance (drug) offenses and drug-related offenses. The severity of those sentences depends primarily upon the nature and amount of the drugs involved, the defendant's prior criminal record, any resulting injuries or death, and in the case of the related firearms offenses, the manner in which the firearm was used.
The minimum sentences range from imprisonment for a year to imprisonment for life. Although the sentences are usually referred to as mandatory minimum sentences, a defendant may avoid them under several circumstances. Prosecutors may elect not to prosecute. The President may choose to pardon the defendant or commute his sentence. The defendant may qualify for sentencing for providing authorities with substantial assistance or under the so-called "safety valve" provision available to low-level, nonviolent, first-time offenders.
Over time, defendants, sentenced to mandatory terms of imprisonment for drug-related offenses, have challenged Congress's legislative authority to authorize them and the government's constitutional authority to enforcement. The challenges have met with scant success. Generally, courts have concluded that the provisions fall within congressional authority under the Commerce, Necessary and Proper, Treaty, and Territorial Clauses of the Constitution. By and large, courts have also found no impediment to imposition of mandatory minimum sentences under the Due Process, Equal Protection, or Cruel and Unusual Punishment Clauses, or the separation-of-powers doctrine.
This is a brief discussion of the law associated with the mandatory minimum sentencing provisions of federal controlled substance (drug) laws and drug-related federal firearms and recidivist statutes.1 These mandatory minimums, however, are not as mandatory as they might appear. The government may elect not to prosecute the underlying offenses. Federal courts may disregard otherwise applicable mandatory sentencing requirements at the behest of the government.2 The federal courts may also bypass some of them for the benefit of certain low-level, nonviolent offenders with virtually spotless criminal records under the so-called "safety valve" provision.3 Finally, in cases where the mandatory minimums would usually apply, the President may pardon offenders or commute their sentences before the minimum term of imprisonment has been served.4 Be that as it may, sentencing in drug cases, particularly mandatory minimum drug sentencing, has contributed to an explosion in the federal prison population and attendant costs. Thus, the federal inmate population at the end of 1976 was 23,566, and at the end of 1986 it was 36,042.5 On January 4, 2018, the federal inmate population was 183,493.6 As of September 30, 2016, 49.1% of federal inmates were drug offenders and 72.3% of those were convicted of an offense carrying a mandatory minimum.7 In 1976, federal prisons cost $183.914 million; in 1986, $550.014 million; and in 2016, $6.751 billion (est.).8
Federal mandatory minimum sentencing statutes have existed since the dawn of the Republic. When the first Congress assembled, it enacted several mandatory minimums, each of them a capital offense.9 The drug mandatory minimums are of more recent origins. The first arrived in 1914, when Congress established a mandatory minimum of five years for the manufacture of opium for smoking purposes.10 Shortly after mid-century, Congress began adding to the number of drug-related mandatory minimums. Prior to enactment of the Controlled Substances Act and the Controlled Substances Import and Export Act in 1970,11 federal law included mandatory minimums for violations of the narcotics or marijuana tax regimes;12 smuggling narcotics or marijuana;13 distributing heroin to a child;14 possession of narcotics aboard a U.S. vessel;15 and violations of federal drug laws using communications facilities.16 The 1970s legislation eliminated them all.17 Left in their place were only the mandatory minimums in the continuing criminal enterprise (drug kingpin) section.18
Then, in 1984, Congress enacted the Sentencing Reform Act that created the United States Sentencing Commission and authorized it to promulgate then binding sentencing guidelines.19 In many instances, the resulting Guidelines operated essentially, but briefly, to establish a mandatory minimum term of imprisonment where none had existed before.20 Soon thereafter, Congress began to repopulate federal drug laws with mandatory minimums, the bulk of which Congress inserted using the Anti-Drug Abuse Act of 1986.21 The 1986 legislation, however, included substantial assistance provisions which allow the courts to disregard the mandatory minimums in the case of cooperative defendants.22 In addition, shortly thereafter, Congress instructed the Sentencing Commission to provide it with a detailed report on federal mandatory minimum statutes.23
The commission's 1991 report24 observed that from 1984 to 1990 four drug-related statutes accounted for roughly 94% of the mandatory minimum offenses regularly prosecuted.25 The commission's initial 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, low-level drug offenders.26 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.27
The hate crime legislation enacted in 2009 directed the U.S. Sentencing Commission to submit a second report on federal mandatory minimums.28 The commission presented its second report in October 2011.29 A number of things had changed between the first and second Commission reports. Sentencing under the Guidelines had been in place for only a relatively short period of time when the first report was written. By the time of the second report, the number of defendants sentenced by federal courts had grown to almost three times the number sentenced under the Guidelines when the commission wrote its first report.30 The judicial landscape has changed as well. When the commission issued its first report, the Guidelines were considered binding upon sentencing judges.31 After the Supreme Court's Booker decision and its progeny, the Guidelines became but the first step in the sentencing process.32 In addition, the Fair Sentencing Act, passed in 2010, reduced the powder cocaine-crack cocaine ratio from 100 to 10 to roughly 18 to 1.33
The second Commission report recommended that Congress consider expanding eligibility for the safety valve, and adjusting the scope, severity, and the prior offenses that trigger the recidivist provisions under firearm statute34 and the two principal drug statutes, (21 U.S.C. 841 and 960).35
In October 2017, the commission issued a third report devoted exclusively to mandatory minimum penalties for drug offenses, in which it made no recommendations.36 Instead, the report provided an extensive statistical analysis, summarized in ten findings:
3. Offenses carrying a drug mandatory minimum penalty were used less often, as the number and percentages of offenders convicted of an offense carrying a mandatory minimum penalty has decreased since fiscal year 2010.
7. Additionally, drug mandatory minimum penalties appear to provide criminal defendants with a significant incentive to provide substantial assistance to the government pursuant to 18 U.S.C. 3553(e) and the related guideline provisions of USSG 5K1.1.
8. However, neither the statutory safety valve provision at 18 U.S.C. 3553(f), nor the substantial assistance provision of 18 U.S.C. 3553(e) fully ameliorate the impact of drug mandatory minimum penalties on relatively low-level offenders.
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