Twenty years ago, the U.S. Sentencing Commission issued a landmark report that highlighted the injustices caused by mandatory minimum penalties. Since then several developments have helped mitigate those injustices. In 1994 Congress enacted a "safety valve" provision that allows low-risk, first-time offenders to escape mandatory minimums. In 2005 the U.S. Supreme Court held in U.S. v. Booker that the commission's sentencing guidelines (as opposed to mandatory minimums required by statute) should be treated as advisory because they hinged on facts that were not determined by a jury. In 2007 the commission changed its guidelines to reduce recommended sentences for crack cocaine offenses. In 2010 Congress passed the Fair Sentencing Act, which shrank the senseless sentencing disparity between crack and cocaine powder. Last month the commission issued a follow-up report on mandatory minimum sentences that reflects the improvements made by some of these changes but also shows that federal criminal penalties remain excessively harsh and rigid.
The report confirms that the safety valve, championed by Families Against Mandatory Minimums (FAMM), is having a significant impact. In fiscal year 2010, drug offenders accounted for two-thirds of federal defendants convicted of offenses that carried mandatory minimums, but they qualified for shorter sentences about half the time. According to the report, "One-quarter (26.1%) of these offenders received relief through operation of the safety valve alone, 19.3 percent by providing substantial assistance to the government; and 9.0 percent through both the safety valve and substantial assistance provisions."
The report also shows that judges are taking advantage of the leeway allowed by Booker. "In fiscal year 2010," the commission says, "courts imposed a sentence within the applicable guideline range in fewer than half (43.7%) of all cases involving an offense carrying a mandatory minimum penalty. In 28.3 percent of such cases, the sentence was below the applicable guidelines range at the request of the government because the offender had provided substantial assistance to the government in the investigation of another offense." That means that in most cases where judges departed from the recommended range, they did so at their own initiative, presumably because they deemed the minimum suggested sentence too severe.
This report does not include data for all crack sentences (just the ones involving mandatory minimums), but another report shows the average crack sentence in fiscal year 2009 was 115 months, compared to 87 months for cocaine powder. That's a difference of about 32 percent, substantially smaller than the gaps seen in the 1990s and early 2000s (56 percent in 2000, for example). The Fair Sentencing Act, which took effect toward the end of fiscal year 2010, should reduce the gap further.
Despite such modest progress, it's clear from the commission's report that federal sentences are still out of whack. From interviews with prosecutors and defense attorneys, for example, "the Commission learned that inconsistencies in application of mandatory minimum penalties exist between districts, and often within districts, where individual prosecutors exercise their discretion differently. In part, these differences may have developed to avoid the overly severe consequences that result from certain mandatory minimum penalties applying in individual cases." In other words, prosecutors are exercising the discretion that once belonged to judges, effectively determining offenders' sentences by deciding how to charge them.
The commission also found that "mandatory minimum penalties for drug offenses sweep more broadly than Congress may have intended." The most common function among offenders subject to mandatory minimums was courier (23 percent), followed by wholesaler (21 percent), street-level dealer (17 percent), and high-level supplier/importer (11 percent). That breakdown suggests mandatory minimums continue to hit low-level offenders more often than "drug kingpins."
The irrationality is not confined to drug offenses. The share of federal sex offenders subject to mandatory minimums has risen dramatically in the last decade, from 5 percent in 2001 to 51 percent in 2010. And unlike drug offenders, they rarely qualify for lower sentences. Most sex offenders (72 percent in 2010) are charged with child pornography offenses, primarily (58 percent) possession only. The average sentence for child porn offenders subject to mandatory minimums is 11 years. "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 report says. "The Commission is undertaking a more comprehensive study of child pornography offenses and expects to issue a report in the near future."
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