The federal sentencing guidelines and the pursuit of fair and just sentences.

• Author: Cappellino, Anjelica
• Position: IV. Mandatory Minimums for Drug Offenses: Incongruence and Conflict With the Federal Sentencing Guidelines through VI. Conclusion, with footnotes, p. 800-824 - Miscarriages of Justice

4. MANDATORY MINIMUMS FOR DRUG OFFENSES: INCONGRUENCE AND CONFLICT WITH THE FEDERAL SENTENCING GUIDELINES

   1. Mandatory Minimum Sentences for Drug Offenses: A Historical Context

      Despite the advisory nature of the Guidelines post-Booker, judges are oftentimes limited in their own discretion because of statutory mandatory minimum sentences. Mandatory minimum penalties mandate a certain time period of incarceration for a defendant based on the particular crime with which he is charged. (228) In contrast to the advisory nature of the Guidelines, these statutory mandates severely limit a judge's discretion in sentencing. In general, statutory mandatory minimum sentences limit the court's authority, may lack a congruency with the severity of the offense, and cause a whole range of social ills and concerns.

      While mandatory minimum sentences have long been a part of United States history, and are applicable to other offenses such as the use of a firearm (229) or explosives during the commission of a crime, (230) arguably their harshest impact has been on federal drug offenses, which are therefore the focus of the following section. As stated in the Introduction, nearly half of the federal prison population is currently incarcerated for drug offenses while less than five percent are serving time for violent crimes. (231) In comparison, it is estimated that only seventeen percent of the United States total state prison population is incarcerated for drug offenses (53% of state inmates are incarcerated for violent crimes). (232) These numbers indicate that federal statutory mandatory minimums for drug offenses, along with the growing "federalization" of these crimes, have been the greatest contributor to the unprecedented increase in the federal prison population over the last thirty years.

      In response to heightened drug use, specifically the increasing use of crack cocaine, and publicized incidents, most notably the overdose death of University of Maryland basketball star Len Bias, the Anti-Drug Abuse Act of 1986 (the 1986 Act) was enacted, (233) which established the currently applicable mandatory minimum sentences for federal drug offenses. (234) Due to the apparent urgency of this issue, "Congress bypassed much of its usual deliberative legislative process" and did not hold committee hearings or produce reports on the Act. (235)

      As indicated by floor statements, the intent of the 1986 Act was to create a "two-tiered penalty structure" for drug traffickers where "serious" traffickers received five-year mandatory minimum penalties and "major" traffickers received ten-year mandatory penalties. (236)

      Senator Robert Byrd, the Senate Minority Leader at the time, explained:

      For the kingpins--the masterminds who are really running these operations--and they can be identified by the amount of drugs with which they are involved--we require a jail term upon conviction. If it is their first conviction, the minimum term is 10 years.... Our proposal would also provide mandatory minimum penalties for the middle-level dealers as well. Those criminals would also have to serve time in jail. The minimum sentences would be slightly less than those for the kingpins, but they nevertheless would have to go to jail--a minimum of 5 years for the first offense and 10 years for the second. (237) Pursuant to the 1986 Act, a "trafficker" was identified and categorized by the quantity and type of drug. (238) The 1986 Act distinguished powder cocaine from "crack cocaine" (cocaine base), establishing higher mandatory minimums for crack cocaine while the same quantity of powder cocaine would have a lower mandatory sentence. (239) Specifically, the "100-to-1" ratio of the 1986 Act established a five-year mandatory minimum penalty for offenses involving five grams of crack cocaine, whereas it would take an offense involving five hundred grams of powder cocaine to receive that penalty. (240) The Fair Sentencing Act of 2010 subsequently altered this disparity "by repealing the mandatory minimum penalty for simple possession of crack cocaine and by increasing the quantities required to trigger the five- and ten-year mandatory minimum penalties for crack cocaine trafficking offenses from five to 28 grams and 50 to 280 grams, respectively." (241) Furthermore, the Omnibus Anti-Abuse Act (the "1988 Act") established mandatory minimum penalties for drug trafficking conspiracies, essentially broadening the federal government's reach to all individuals involved in drug trafficking organizations. (242)

      Under 21 U.S.C. [section] 841(a), it is unlawful "(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance." (243) It is also unlawful to attempt or conspire to commit these offenses under 21 U.S.C. [section] 846. (244) Other drug trafficking offenses include the importation (245) or exportation (246) of a controlled substance, or the attempt or conspiracy of said importation or exportation. (247) Under 21 U.S.C. [section] 841(b), the penalties for violating [section] 841(a) vary according to drug type and quantity. (248) Under 21 U.S.C. [section] 841(b)(1)(A), a mandatory minimum of ten years' imprisonment is imposed for cases involving one kilogram or more of heroin, five kilograms or more of cocaine, 280 grams or more of cocaine base (crack), and one thousand kilograms or more of marijuana. (249) Furthermore, the mandatory minimum of ten years increases to twenty years if "death or serious bodily injury results from the use of such substance" or the defendant has a prior felony drug offense conviction. (250) If the defendant has two or more prior felony drug offense convictions, the mandatory minimum is life imprisonment. (251) 21 U.S.C. [section] 841(b)(1)(B) applies to drug quantities of a lesser amount--one hundred grams or more of heroin, five hundred grams or more of cocaine, twenty-eight grams or more of cocaine base, and one hundred kilograms or more of marijuana--and imposes a five-year mandatory minimum which will increase to twenty years if death or serious bodily injury results, or ten years if the defendant has a prior felony drug offense conviction. (252) A mandatory life sentence is imposed if there is a prior felony drug offense conviction and death results. (253) Under 21 U.S.C. [section] 960(b), the same sentencing structure is applied to the importation and exportation of controlled substances. (254) When a defendant charged under said statutes has a prior felony drug offense conviction, the prosecutor may file a "prior felony information" under 21 U.S.C. [section] 851, (255) which enables the prosecutor to charge the defendant with the higher mandatory minimum penalty. (256)

   2. The Two Ways to Evade Mandatory Minimums: Safety Valves and Cooperation

      1. The Safety Valve Provision

         After realizing that many first time, nonviolent drug offenders were receiving mandatory minimum sentences for offenses that were relatively low-level, Congress enacted a "safety valve" provision to the Guidelines in order to ameliorate the harsh time served by low-level drug offenders. (257) Under 18 U.S.C. [section] 3553(f), and imposed in accordance with the Guidelines section 5C1.2, a defendant may be sentenced "without regard to any statutory minimum sentence," if the court finds the following five factors are met:

         (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. (258)

         According to a survey conducted by the Commission, the fifth prong of the safety valve requirements--whether a defendant has truthfully provided information to the government--is oftentimes the subject of dispute between prosecutors and criminal defense attorneys. (259) Furthermore, "[o]nly about 25% of federal drug offenders are currently able to take advantage of the 'safety valve' to earn reduced sentences." (260) This is partly due to the fact criminal history points steadily can accumulate for minor offenses, thereby disqualifying a defendant from safety valve eligibility. (261)

         In response to the frequency of safety valve disqualification, bipartisan legislation was introduced on March 20, 2013 by Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Senator Rand Paul (R-Ky.) that would amend 18 U.S.C. [section] 3553 and expand the current safety valve provision to all federal crimes subject to mandatory minimum penalties. (262) The bill would authorize judges to sentence defendants below the mandatory minimum penalties if a lower sentence would fulfill the goals of sentencing as listed in 18 U.S.C. [section] 3553(a), regardless of whether the crime was one of the "qualifying" crimes for safety valve under 18 U.S.C. [section] 3553(f). (263)

         The bill's purpose is to prevent "unjust...