In a 645-page report prepared by the U.S. Sentencing Commission for Congress, released in October 2011, the Commission found that federal “mandatory minimum” sentences are harsh and unjust – especially in cases where there is no physical harm or threat of physical harm. The study was the first thorough examination of mandatory minimums on the federal level in two decades.

“While there is a spectrum of views on the Commission regarding mandatory minimum penalties, the Commission unanimously believes that certain mandatory minimum penalties apply too broadly, are excessively severe, and are applied inconsistently across the country,” said Commission chairwoman Patti B. Saris, a U.S. District Court Judge in Massachusetts.

The study comprised a review of 73,239 federal criminal cases in fiscal year 2010, of which over one-quarter (27.2%) of the defendants were “convicted of an offense carrying a mandatory minimum penalty.” The vast majority of such convictions involved drug offenses (77.4%), while mandatory minimums also apply to certain federal firearm, identity theft and child sex-related crimes.

The Commission’s report indicated that black offenders are the demographic least likely to obtain relief from mandatory minimum sentences. This should come as no surprise to those familiar with the racial breakdown in the U.S. Bureau of Prisons (BOP), as a disproportionate number of federal prisoners are black relative to their percentage of the general population in the United States.

Blacks also received the lowest rate of relief under “safety valve” provisions for federal mandatory minimum sentences, either due to their criminal history or the use of a firearm in the commission of a drug offense. Safety valve relief is a method by which low-level, non-violent, first-time offenders can be sentenced below a mandatory minimum; the safety valve provisions were enacted in 1994.

Statistics for defendants who obtained relief from mandatory minimums by cooperating with the government (providing “substantial assistance”) were broken down along racial lines as follows: Blacks, 34.9%; whites, 46.5%; Hispanics, 55.7%; and other races, 58.9%. The figures for federal prisoners who obtained relief through safety valve provisions were: Blacks, 11.1%; whites, 26.7%; Hispanics, 42.8%; and other races, 36.6%.

The Sentencing Commission also made other key findings. For example, defendants who received a mandatory minimum sentence received an average sentence of 139 months, compared to an average 63-month sentence for of-fenders who received relief from mandatory minimums.

Additionally, in fiscal year 2010, federal drug offenders convicted under a statute carrying a mandatory minimum sentence went to trial more than twice as often (4.5%) as drug offenders not convicted of an offense with a mandatory minimum (1.6%). Still, this indicates that the vast majority of cases are resolved through plea bargains, and one contributing factor is that federal prosecutors can use mandatory minimums for leverage to encourage defendants to plead guilty.

Further, although mandatory minimum sentences were intended to punish major drug dealers or kingpins, the study found that often is not the case. “The Commission’s analysis of a 15-percent sample of fiscal year 2009 cases indicates that the mandatory minimum penalties for drug offenses sweep more broadly than Congress may have intended.” In fact, of federal drug offenders subject to mandatory minimums, 23% were classified as couriers and 17.2% as street-level dealers, while only 10.9% were high-level suppliers or importers.

The Commission’s study is just one of many recent reports and public comments that share a common theme: The federal sentencing guidelines are not only too harsh, but are inequitably applied. Most objective studies have found that drug use in the general population is holding steady across all racial groups; thus, the practice of disproportionately dispensing mandatory minimum sentences to blacks, while disproportionately denying them safety valve relief, is indefensible.

With the BOP’s population at a record high of more than 218,900 prisoners as of October 2012, and most BOP facilities operating at 20% or more above their rated capacities, a review of federal sentencing practices is long overdue. But so long as federal prosecutors can hold the threat of excessively long mandatory minimum sentences over defendants if they choose to exercise their constitutional right to a jury trial, the BOP’s population will continue to grow.

“The number of federal prisoners has tripled in the last 20 years,” noted Chairwoman Saris. “Although the commission recognizes that mandatory minimum penalties are only one of the factors that have contributed to the increased capacity and cost of inmates in federal custody (an increase in immigration cases is another), the commission recommends that Congress request prison impact analyses from the commission as early as possible in the legislative process when Congress considers enacting or amending federal criminal penalties.”

The Sentencing Commission’s study concluded by making a number of recommendations to Congress, including “possible legislative reforms to strengthen and improve the sentencing guidelines system.” Also, should Congress enact additional mandatory minimum sentences, the Commission stated 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.”

Of course, those caveats should apply to the mandatory minimum sentences that are currently on the books, too. The Sentencing Commission’s report is available at www.ussc.gov or on PLN’s website.

Sources: National Law Journal; www.justicefellowship.org; www.famm.org; “Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System,” U.S. Sentencing Commission (October 2011)

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