Sentencing Commission Criticizes Mandatory Minimums in Comprehensive New Report

What more is there to be said about mandatory minimums?  Everyone already knows they are bad sentencing policy.  Pursuant to congressional directive, however, the U.S. Sentencing Commission last week issued a comprehensive new report on federal mandatory minimums.  I doubt it’s a game-changer, but the report does include a wealth of interesting new data.

First, though, there are the Commission’s recommendations.  Here are the (eminently sound) overarching recommendations:

A strong and effective sentencing guidelines system best serves the purposes of the Sentencing Reform Act. . . . If Congress decides to exercise its power to direct sentencing policy by enacting mandatory minimum penalties, the Commission believes that such penalties should (1) not be excessively severe, (2) be narrowly tailored to apply only to those offenders who warrant such punishment, and (3) be applied consistently. Sentencing data and interviews with prosecutors and defense attorneys indicate that mandatory minimum penalties that are considered excessively severe tend to be applied inconsistently.  (xxx)


Some of the more specific recommendations for Congress are:

  • Consider creating safety valve for minimums outside drug context;
  • Request prison impact analysis from Commission early in legislative consideration of any new minimums;
  • Consider expanding existing safety valve to offenders with two or three criminal history points; and
  • Consider clarifying and limiting reach of the Armed Career Criminal Act and § 924(c).  (xxx-xxxi)
Also interesting are the Commission’s comments on the minimums for child pornography and identity theft:

The Commission’s preliminary review of the available sentencing data suggests that the mandatory minimum penalties for certain non-contact child pornography offenses may be excessively severe and as a result are being applied inconsistently. The Commission is undertaking a more comprehensive study of child pornography offenses and expects to issue a report in the near future.

The problems associated with certain mandatory minimum penalties are not observed, or are not as pronounced, in identity theft offenses. The Commission believes this is due, in part, to 18 U.S.C. § 1028A requiring a relatively short mandatory penalty and not requiring stacking of penalties for multiple counts. The statute is relatively new and is used in only a handful of districts, however, so specific findings are difficult to make at this time.  (xxxi)

The Commission’s program of incremental, but quite helpful, reforms reminds me of Paul Cassell and Erik Luna’s recent article on minimums, which I blogged about here.

I do have one reservation about the way the Commission has framed its recommendations.  The overriding normative value seems to be consistency.  Reading the recommendations, you might get the sense that the only thing that is really wrong with the federal minimums is that those darn lawyers and judges don’t apply them consistently; as an accommodation to the recalcitrant practitioners, we need to to adopt some reforms in order to get stronger buy-in.

This approach seems perfectly consistent with the obsession of federal sentencing policymakers since the 1980’s with disparity — what Marc Miller calls “sentencing equality pathology” — but it invites a quite different response than the reforms the Commission proposes.  Rather than fine-tuning the minimums, one might reasonably think the best way to deal with recalcitrant judges and prosecutors is to reduce their discretion and/or replace them with new judges and prosecutors who will enforce the minimums more vigorously.

No, the real problem with statutes like the Armed Career Criminal Act needs to be addressed more forthrightly: the minimums are simply too harsh and cannot be justified under any credible theory of punishment.  The judges and prosecutors who use their discretion to minimize the impact of such statutes are not the villains of the story, but the heroes (assuming, of course, that the discretion is exercised in an honest, lawful fashion).

In any event, here are some of the data presented by the Commission:

More than one-quarter of the 73,239 offenders sentenced in the federal courts in fiscal year 2010 (27.2%, n=19,896) included in this analysis were convicted of an offense carrying a mandatory minimum penalty.

Almost half (46.7%) of offenders convicted of an offense carrying a mandatory minimum penalty were relieved from the application of such a penalty at sentencing because they provided substantial assistance to the government or qualified for the safety valve provision, or both.

Only 14.5 percent of all federal offenders were subject to a mandatory minimum penalty at sentencing.

Receiving relief from an applicable mandatory minimum sentence made a significant difference in the sentence ultimately imposed. Offenders who were convicted of an offense carrying a mandatory minimum penalty and remained subject to that penalty at sentencing received an average sentence of 139 months, compared to 63 months for those offenders who received relief from a mandatory penalty.

75,579 (39.4%) of the 191,757 offenders in BOP custody as of September 30, 2010, were subject to a mandatory minimum penalty at sentencing.  (xxvii-xxix)

And a few more tidbits:

A proliferation of mandatory minimum penalties has occurred over the past 20 years.  Since 1991, the number of mandatory minimum penalties has more than doubled, from 98 to 195 today.

New types of offenses have become subject to mandatory minimum penalties. For example, in fiscal year 1991, the percentage of child pornography offenders convicted of violating a statute carrying a mandatory minimum penalty was 2.8 percent. By fiscal year 2010, six years after the enactment of mandatory minimum penalties for certain child pornography offenses, more than half (50.1%) of child pornography offenders were convicted of violating a statute carrying a mandatory minimum penalty. Similarly, in fiscal year 1991, the percentage of sexual abuse offenders convicted of violating a statute carrying a mandatory minimum penalty was 3.8 percent. By fiscal year 2010, 52.5 percent of sexual abuse offenders were convicted of an offense carrying a mandatory minimum penalty.

Since fiscal year 1990, not only has there been an increased reliance on statutes carrying mandatory minimum penalties (excluding immigration offenses), but defendants now are convicted of violating statutes that carry longer mandatory minimum penalties. In fiscal year 1990, slightly more than half (51.8%) of offenders convicted of an offense carrying a mandatory minimum penalty were convicted for violating a statute carrying a mandatory minimum penalty of five years of imprisonment. That percentage declined to 39.9 percent in fiscal year 2010. In contrast, the percentage of offenders convicted of violating a statute carrying a mandatory minimum penalty of ten years of imprisonment increased from 34.4 percent to 40.7 percent between fiscal years 1990 and 2010. There also has been a slight increase in the percentage of offenders convicted of violating a statute carrying a mandatory minimum penalty greater than ten years of imprisonment, from 9.0 percent in fiscal year 1990 to 11.9 percent in fiscal year in 2010.

Because the number of offenders in the federal prison population who were convicted of violating statutes with and without mandatory minimum penalties both increased at similar rates, the percentage of offenders in the custody of BOP who were convicted of violating a statute carrying a mandatory minimum penalty has varied little. . . . The percentage of offenders in BOP custody subject to a mandatory minimum penalty at sentencing decreased from 41.1 percent as of September 30, 1995, to 39.4 percent as of September 30, 2010, a decrease of 4.1 percent.

The federal prison appropriations have increased from $1.36 billion for fiscal year 1991 to $6.09 billion for fiscal year 2010.

Notwithstanding the increases in number of facilities and budget, the BOP is currently operating at 35 percent over its rated capacity.  (Note: all of the foregoing data comes from chapter four of the report.)

A final noteworthy aspect of the report is its in-depth analysis of practices in thirteen districts, based on extensive interviews with practitioners in the districts.  In general, these interviews revealed that mandatory minimums play a very important role in charging decisions, both in deciding whether to take a case and, if so, what to charge:

A fairly consistent theme emerged during the interviews of prosecutors about the overall role of mandatory minimum penalties in charging decisions. The ability to charge an offense carrying a mandatory minimum penalty appears to be a threshold consideration in determining whether to exercise federal jurisdiction over certain types of criminal cases. Prosecutors in four of the 13 districts told the Commission that mandatory minimum penalties play a “significant role” in charging decisions. Prosecutors in five other districts related that they charge the “most serious, readily provable offense,” which is defined as the offense “that generates[s] the most substantial sentence under the Sentencing Guidelines, unless a mandatory minimum sentence or count requiring a consecutive sentence would generate a longer sentence.”  Prosecutors in the remaining four districts asserted that although the evidence drives their charging decisions, they file charges carrying a mandatory minimum penalty whenever applicable. . . .

For the most part, defense attorneys in each of the 13 districts concurred with the overall view that prosecutors charge an offense carrying a mandatory minimum penalty if available. . . . In some districts, defense attorneys noted that some changes resulted from a change in the United State Attorney. In five districts, however, the defense attorneys related that offenses carrying a mandatory minimum penalty were not charged consistently. Some noted that the inconsistencies in application arose from decisions made by individual prosecutors; others noted variations in charging practices within different divisions located in the same district. In only one district where such inconsistencies in application were noted by defense attorneys did the prosecutors also suggest that individual prosecutors might vary in their charging practices.  (107-08)

Similarly, a prosecutorial hardline also seemed to be the norm in plea bargaining:

Respondents were asked whether dismissing a count carrying a mandatory minimum penalty, or charge bargaining, was part of their practice in negotiating guilty pleas. Most of the prosecutors interviewed related that charge bargaining was the exception, rather than the rule, in their district. Typically, the decision to dismiss a charge carrying a mandatory minimum penalty was tied to the quality of the evidence underlying that count rather than to any deal negotiated by the parties. Some prosecutors did identify notable exceptions to this general practice: cooperation agreements, requests by other agencies involved in an investigation, and plea agreements with peripheral players in drug conspiracies. However, those exceptions were described as rare. In most of the districts, prosecutors related that the policy against charge bargaining was applied consistently office-wide.

Prosecutors in several districts noted possible variations in charge bargaining practices as a result of decisions made by individual prosecutors. In one of those districts, prosecutors related that charges carrying a mandatory minimum penalty might be dismissed if that penalty was not appropriate for the offender or if the offender made some concessions as part of the plea negotiations. In that district, the practice appears to be tied more closely to the individual case considerations, rather than a general policy.

Notwithstanding the general prohibition against charge bargaining in most districts, exceptions for particular offense types were noted. For example, prosecutors reported wide variations in the practices surrounding the filing of section 851 notices seeking enhanced mandatory minimum penalties. Likewise, prosecutors reported variations in plea negotiation practices relating to violations of 18 U.S.C. § 924(c). . . .

In most districts, defense attorneys also viewed charge bargaining as the exception, rather than the rule. Most also concurred that the policy was enforced office-wide.  (108)

Significant interdistrict variations were also found as to substantial assistance policies and the use of 11(c)(1)(C) plea agreements.

And one last tidbit from the interviews:

The Commission asked defense attorneys whether their clients were aware of mandatory minimum penalties.  Most defense attorneys categorically stated that their clients had no knowledge of the possible mandatory minimum penalties applicable to their crime prior to its commission.  (115)

If the defense attorneys are correct about this, that fact would completely undermine any claimed deterrence benefit from mandatory minimums.