Order Code RS20306
August 19, 1999
CRS Report for Congress
Received through the CRS Web
Federal Mandatory Minimum Sentencing Statutes:
Introductory Comments to a List with Captions
American Law Division
Federal mandatory minimum sentencing statutes (mandatory minimums) demand
that execution or incarceration follow criminal conviction. They cover drug dealing,
murdering federal officials, and using a gun to commit a federal crime. 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 sentencing and a
certain means of incapacitating the criminally dangerous.
There are several varieties of mandatory minimums: the “not less than” statute, the
flat sentence statute, the piggy-back statute, and the guideline constructed mandatory
minimum. The Eighth Amendment cruel and unusual punishment clause condemns
statutes that impose a mandatory minimum penalty of death or a penalty that is grossly
disproportionate to the offense. Few federal mandatory minimums are imperiled under
this standard and fewer still are susceptible to constitutional attack on the grounds of
separation of power, equal protection, ex post facto, or double jeopardy.
This is an abridged version, without footnotes or citations of the introductory
comments in Federal Mandatory Minimum Sentencing Statutes: A List of Citations with
Captions, Introductory Comments, and Bibliography, CRS Report RL30281 (1999);
Federal Mandatory Minimum Sentencing Statutes: An Overview of Legislation in the
106th Congress, CRS Report RS20307 (1999) is a sketch of related legislative
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. Some
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are triggered by the nature of the offense, others by the criminal record of the offender.
A few members of this category are some less mandatory than others. Several of the drugrelated mandatory minimums in this category, for instance, are subject to a “safety valve”
that may make their minimum penalties less than mandatory for small time, first time
offenders. A handful 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.
A second generally recognized category of mandatory minimums consists of the flat
or single sentence statutes. Closely related are the capital punishment statutes that require
imposition of either the death penalty or imprisonment 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 statute with mandatory minimums or
The final and least obvious group is comprised of statutes whose violation results 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. Most federal criminal laws do not mention a mandatory minimum
sentence, they simply establish a maximum fine and a maximum term of imprisonment and
indicate that subject to those maximum levels the court may sentence an offender to either
a fine or a term of imprisonment or both. The sentencing guidelines convert many of these
simple-maximum-fine\maximum-term-of-imprisonment\or-both statutes into what might
reasonably be considered mandatory minimum sentencing statutes.
The federal sentencing guidelines are designed to eliminate unwarranted sentencing
disparity. They establish a scorecard system that presents sentencing courts with a narrow
range within which the sentence to be imposed must fall. The bottom of the applicable
range for most crimes calls for imprisonment. Constraints on the option of probation make
a sentence other than incarceration even more rare. A court may depart from the sentence
the guidelines dictate if the case before it involves mitigating or aggravating factors
overlooked in the guidelines. Such departures are expected to occur only highly
Under the current guidelines and absent grounds for departure, federal courts must
impose a sentence of imprisonment following conviction for any crime carrying a
maximum of fifteen years or higher. They will enjoy no greater discretion in most ten year
felony cases or in many five year felony cases.
Mandatory Minimums and the Sentencing Guidelines
Even though the guidelines work to reduce judicial sentencing discretion and in fact
might be characterized as creating a host of new members of the species, mandatory
minimums have been criticized as incompatible with the federal sentencing guidelines.
Perhaps most prominent among its critics was the Sentencing Commission itself which
found that mandatory minimums contributed to unwarranted sentencing disparity and
lacked the precision that would have otherwise been possible under the guidelines.
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 had cooperated fully with
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.
Cruel and Unusual Punishment. Mandatory minimums implicate considerations
under the Eighth Amendment’s cruel and unusual 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, Harmelin v.
Michigan, 501 U.S. 957 (1992).
In Solem v. Helm, 463 U.S. 277 (1983), the Court 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 crime in other jurisdictions,” 463 U.S. at 292.
Furman found that the Eighth Amendment’s cruel and unusual punishment 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.
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.
The Court regularly and consistently recognized the individual considerations
requirement in subsequent capital punishment cases. Although the logic would seem to
apply with similar force in noncapital cases, the Court emphasized that the doctrine was
limited to capital cases.
Harmelin: Harmelin, a first time offender, was 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
The Court noted that in its opinions “[t]he penalty of death differs from all other
forms of criminal punishment. . . . in its total irrevocability.” 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.
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 grossly disproportionate to the crime,” 501 U.S. at 1001.
After Harmelin: Since Harmelin, the lower federal courts have regularly and uniformly
rejected Eighth Amendment challenges to mandatory minimums in most of their variant
forms including: the piggyback mandatory minimums of 18 U.S.C. 924(c); the deathresulting, death penalty or mandatory imprisonment for life, 18 U.S.C. 34; the armed
career criminal mandatory minimum, 18 U.S.C. 924(e); the three strikes, recidivist
mandatory minimum, 18 U.S.C. 3559(c); the mandatory minimum for drug dealing by
repeat offenders, 21 U.S.C. 841(b); and the drug kingpin, one sentence mandatory
minimum, 21 U.S.C. 848(b).
Separation of Powers
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 mandatory minimum statutes challenged on separation of powers
grounds, and the Supreme Court has denied any separation of powers infirmity in the
federal sentencing guideline system which produces its own form of mandatory minimums,
Mistretta v. United States, 488 U.S. 361 (1989).
Crack and Equal Protection
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 5000 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.
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. 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. A statute will survive strict scrutiny only if
narrowly tailored to serve a compelling governmental interest. 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 (1993).
Only one lower federal court has 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 a rational basis standard.
Recidivism, Ex Post Facto and Double Jeopardy
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 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, “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’.” 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, 118 S.Ct. at 2250-251 (some citations
Courts confronted with ex post facto challenges to recidivist statutes have similarly
focused upon the “latest crime” and not upon the first.
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