7
Chapter 2
HISTORY OF MANDATORY MINIMUM PENALTIES AND
STATUTORY RELIEF MECHANISMS
A. INTRODUCTION
This chapter provides a detailed historical account of the development and evolution of
federal mandatory minimum penalties. It then describes the development of the two statutory
mechanisms for obtaining relief from mandatory minimum penalties.
B. MANDATORY MINIMUM PENALTIES IN THE EARLY REPUBLIC
Congress has used mandatory minimum penalties since it enacted the first federal penal
laws in the late 18th century. Mandatory minimum penalties have always been prescribed for a
core set of serious offenses, such as murder and treason, and also have been enacted to address
immediate problems and exigencies.
The Constitution authorizes Congress to establish criminal offenses and to set the
punishments for those offenses,
17
but there were no federal crimes when the First Congress
convened in New York in March 1789.
18
Congress created the first comprehensive series of federal offenses with the passage of
the 1790 Crimes Act, which specified 23 federal crimes.
19
Seven of the offenses in the 1790
Crimes Act carried a mandatory death penalty: treason, murder, three offenses relating to piracy,
forgery of a public security of the United States, and the rescue of a person convicted of a capital
crime.
20
One of the piracy offenses specified four different forms of criminal conduct, arguably
increasing to 10 the number of offenses carrying a mandatory minimum penalty.
21
Treason,
17
See U.S. Const. art. I, §8 (enumerating powers to “provide for the Punishment of counterfeiting the Securities and
current Coin of the United States” and to “define and punish Piracies and Felonies committed on the high Seas, and
Offences against the Law of Nations”); U.S. Const. art. III, § 3 (providing that “Congress shall have Power to
declare the Punishment of Treason”). In addition to powers specifically relating to criminal offenses, Congress
“routinely exercises its authority to enact criminal laws in furtherance of, for example, its enumerated powers to
regulate interstate and foreign commerce, to enforce civil rights, to spend funds for the general welfare, to establish
federal courts, to establish post offices, to regulate bankruptcy, to regulate naturalization, and so forth.” United
States v. Comstock, 130 S. Ct. 1949, 1957 (2010).
18
See United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812) (“The legislative authority of the Union must first
make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offence.”).
19
Act of Apr. 30, 1790, Chap. IX (the “1790 Crimes Act”), 1 Stat. 112.
20
See 1790 Crimes Act, §§ 1 (Treason), 3 (Murder), 8 (Piracy), 9 (Citizens as pirates), 10 (Accessory to piracy
before the fact), 14 (Forging public security of the United States), and 23 (Rescue of a person convicted of a capital
crime), 1 Stat. 112-115, 117.
21
See 1790 Crimes Act, § 8, 1 Stat. 112, 113-114. The conduct at section 8 was later separated into individual
statutes with each carrying a mandatory penalty, as discussed later. Several of those individual statutes still exist in
title 18, United States Code, and carry mandatory penalties. Compare § 8 with 18 U.S.C. §§ 1651 (Piracy under the
law of nations) and 1655 (Assault on commander as piracy), which carry mandatory life imprisonment. One of the
8
murder, and piracy remain punishable by a mandatory penalty today.
22
Thirteen of the crimes in
the 1790 Crimes Act were punishable by a term of imprisonment with a statutory maximum of
up to one year (three offenses
23
), three years (seven offenses
24
), or seven years (three offenses
25
).
The remaining three crimes were punishable by fines and corporal punishment
26
or left to the
court’s discretion.
27
The 1790 Crimes Act was consistent with a late 18th century movement among the states
to reduce the types of crimes punishable by death. The colonies, reflecting a more pronounced
trend in England, had increased the number of capital crimes throughout the 17th and 18th
centuries, making death the “standard penalty for all serious crimes.”
28
However, spurred by
Enlightenment ideals of utilitarianism and proportionality in punishment, the states reduced the
number of capital crimes in the decades following the American Revolution.
29
The 1790 Crimes
Act reflected this trend, imposing death for only seven of the enumerated offenses, and
establishing only maximum terms of imprisonment for others. Some of these other offenses,
such as manslaughter and larceny, were crimes commonly punished by death in the colonial
period.
30
Indeed, the debates over the 1790 Crimes Act in the House of Representatives show
statutes no longer carries a mandatory minimum penalty. Compare § 8 with 18 U.S.C. § 1656 (Conversion or
surrender of vessel) (10-year statutory maximum term of imprisonment).
22
See 18 U.S.C. §§ 2381 (Treason) (punishable by death or by imprisonment of not less than five years), 1111
(Murder) (first degree murder punishable by death or by imprisonment for life), 1651 (Piracy under the law of
nations) (requiring life imprisonment), and 1652 (Citizens as pirates) (requiring life imprisonment). Treason carried
the mandatory death penalty until 1862, when Congress amended the penalty to require death or, in the court’s
discretion, at least five years of imprisonment. See infra note 76 and accompanying text.
23
See 1790 Crimes Act, §§ 5 (Rescuing the body of an executed individual ordered for medical dissection by the
court), 22 (Obstruction of process), and 23 (Rescuing a person before conviction of a capital crime), 1 Stat. 112,
113, 117.
24
See 1790 Crimes Act, §§ 6 (Misprision of a felony), 7 (Manslaughter), 11 (Concealing a pirate or property taken
by a pirate), 12 (Manslaughter and confederacy to become pirates), 18 (Perjury), 26 (Instituting legal action against
a foreign ambassador), 28 (Violating safe conduct or assaulting a foreign ambassador), 1 Stat. 112,113-16, 118. The
punishment for perjury also included one hour standing in a pillory.
25
See 1790 Crimes Act, §§ 2 (Misprision of treason), 13 (Maiming), 15 (Falsifying court records), 1 Stat. 112, 115-
16.
26
See 1790 Crimes Act, §§ 16 (Larceny), 17 (Receiving stolen goods), 1 Stat. 112, 116. Both larceny and receiving
stolen goods were punishable by a fine of four times the value of the goods taken and not more than 39 stripes.
27
See 1790 Crimes Act, § 21 (Bribery), 1 Stat. 112, 117.
28
STUART BANNER, THE DEATH PENALTY: AN AMERICAN HISTORY 6-9, 23 (2002); see also Woodson v. North
Carolina, 428 U.S. 280, 289 (1976) (explaining the history of capital punishment in the colonial and post-
Revolutionary period). Although many crimes carried the death penalty in the colonial period, “the colonies used
the death penalty rather sparingly.” L
AWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 42
(1993). Pardons, lack of enforcement, the fiction of “benefit of clergy,” and jury nullification contributed to the lack
of executions in the colonies. See id. at 41-43.
29
BANNER, supra note 28, at 88-100.
30
Id. at 5.
9
the House’s concern with utility and proportionality in assigning punishments. The House
debated at length whether certain crimes should mandate medical dissection in addition to death,
and whether merely passing (as opposed to producing) counterfeit public securities should
mandate death.
31
In both instances, opponents argued that the more severe punishments were
disproportional to the offense and thus unnecessary; supporters countered that the punishments
served needful purposes and fit the severity of the crime.
32
Although Congress ultimately
elected to impose the more severe penalties,
33
the debates and Congress’s decision to impose
death for seven offenses and discretionary terms of imprisonment for the others was a departure
from the prevalent use of mandatory death penalties during the colonial period.
Congress enacted the first mandatory minimum terms of imprisonment at the close of the
18th century as part of its response to strained relations between the United States and France.
Following the XYZ Affair
34
and in preparation for a possible war with France, Congress passed
the Sedition Act of 1798, which among other provisions created a new offense of opposing or
impeding a federal officer by means of insurrection, riot, or unlawful assembly.
35
The offense
carried a mandatory minimum penalty of at least six months of imprisonment.
36
Congress again
used a mandatory minimum penalty in 1799 with its passage of the Logan Act.
37
The Logan Act
provided that any citizen who, without the consent of the United States, corresponded with a
foreign power about “disputes or controversies with the United States” with the intent to
influence the foreign government or “to defeat the measures of the United States” was to be
imprisoned for at least six months.
38
The Sedition Act contained a sunset provision and
automatically expired on March 3, 1801, on the last day of President John Adams’ term in
31
13 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS OF THE UNITED STATES OF AMERICA, DEBATES IN
THE
HOUSE OF REPRESENTATIVES 968-74 (Helen E. Veit et al. eds, 1994); see also Banner, supra note 28, at 76-77
(describing dissection as a method of “intensifying” a death sentence, and noting that “[b]y adding dissection to a
death sentence the state could simultaneously furnish bodies to physicians and deter crime”).
32
Id.
33
See 1790 Crimes Act §§ 3 & 14, 1 Stat. 112, 113, 115.
34
The XYZ Affair refers to an incident occurring in 1798 during which three French agents (identified as X,Y, and
Z) demanded that American diplomatic emissaries pay a bribe and other concessions in return for the continuance of
peace talks between the two nations. See U.S. Department of State, Office of the Historian, The XYZ Affair and the
Quasi-War with France, 1798-1800, available at http://history.state.gov/milestones/1784-1800/XYZ.
35
Act of July 14, 1798, ch. LXXIV, § 1, 1 Stat. 596; see Dwight F. Henderson, Treason, Sedition and Fries’
Rebellion, 14 A
M. J. LEGAL HIST. 308, 308-09 (1970); David Jenkins, The Sedition Act of 1798 and the
Incorporation of Seditious Libel into First Amendment Jurisprudence, 45 A
M. J. LEGAL HIST. 154, 155-56 (2001).
36
Act of July 14, 1798, ch. LXXIV, § 1, 1 Stat. 596.
37
See Act of Jan. 30, 1799, ch. I, 1 Stat. 613.
38
Id. Congress passed the Logan Act following an unauthorized attempt by Dr. George Logan, a private citizen, to
conduct diplomacy with French authorities. See Kevin M. Kearney, Comment, Private Citizens in Foreign Affairs:
A Constitutional Analysis, 36 E
MORY L.J. 285, 292-94 (1987).
10
office.
39
The offense created in the Logan Act remains in force, but no longer carries a
mandatory minimum penalty.
40
Congress also used mandatory minimum penalties in its efforts to end the importation of
slaves. The Constitution prohibited Congress from curtailing or abolishing the importation of
slaves before 1808.
41
In advance of the 1808 date, and with President Thomas Jefferson’s
urging, Congress passed an Act prohibiting the importation of slaves in February 1807.
42
Among other provisions, the 1807 Act prohibited citizens from bringing slaves into the United
States or serving on a vessel that transported slaves.
43
These offenses carried mandatory
minimum penalties of at least five years and two years of imprisonment, respectively.
44
However, the mandatory minimum penalties were much less severe than the mandatory death
penalty many in the House of Representatives wanted to attach to these offenses, on grounds that
importing human beings was a crime of morality and akin to murder.
45
Other offenses created
by the 1807 Act, such as outfitting slave vessels and purchasing or selling illegally imported
slaves, carried only fines.
46
In 1818, Congress enacted additional mandatory minimum penalties for slave-related
offenses in response to a number of problems caused by illegal slave trafficking. First, illegal
slave smuggling and piracy in territories near New Orleans necessitated the use of military force
against the smugglers.
47
Second, slave trafficking interfered with the United States’ policy of
neutrality in the ongoing wars between Spain and its colonies in the Americas, as these
smugglers operated under revolutionary flags but used primarily crews of United States citizens
and vessels outfitted in United States ports.
48
In response to these problems, Congress enacted a
law that proscribed outfitting vessels for use in the slave trade, citizens from transporting slaves,
and importing slaves to the United States – all subject to mandatory minimum terms of
39
Act of July 14, 1798, ch. LXXIV, § 4, 1 Stat. 596, 597.
40
See 18 U.S.C. § 953.
41
U.S. Const. art. I, §9.
42
DWIGHT F. HENDERSON, CONGRESS, COURTS, AND CRIMINALS: THE DEVELOPMENT OF FEDERAL CRIMINAL LAW,
1801-1829, at 166-67 (1985).
43
See Act of Mar. 2, 1807, ch. XXII, §§ 5 (Citizens bringing slaves to the United States) and 7 (Individuals serving
on vessels holding slaves), 2 Stat. 426, 427-428.
44
Id.
45
HENDERSON, supra note 42, at 168-69.
46
See Act of Mar. 2, 1807, ch. XXII, §§ 2 (Outfitting vessels for the slave trade) and 6 (Purchasing or selling
illegally imported slaves), 2 Stat. 426, 426-28.
47
HENDERSON, supra note 42, at 175-80.
48
Id. at 126-43.
11
imprisonment of three years.
49
These penalties did not stop the trade in slaves, however,
50
leading Congress in 1820 to declare that persons who served on the crew of a vessel used for
trading slaves or who forcibly confined individuals for the slave trade were pirates and subject to
mandatory death.
51
In 1825, Congress passed another crimes act
52
that created new offenses and amended
some of the offenses and penalties established 35 years earlier in the 1790 Crimes Act. The 1825
Crimes Act is notable for its lack of mandatory minimum penalties. Then-Representative Daniel
Webster, Chairman of the House Judiciary Committee responsible for drafting the bill, explained
that “the present bill would be found, upon the whole, to be a mitigation of the laws as they
previously stood.”
53
United States Attorney General Benjamin Franklin Butler argued before the
Supreme Court that Congress passed the 1825 Crimes Act, in part, because “[t]he penalties
imposed by the [1790 Crimes Act] were found to be too heavy.”
54
Of the 21 crimes enumerated
in the 1825 Crimes Act, only the debasement of United States gold and silver coins by a United
States treasury employee carried a mandatory minimum penalty, requiring a term of
imprisonment of at least one year.
55
Although the 1825 Crimes Act punished three offenses with
mandatory death (burning a dwelling house on a military post, committing certain felonies on the
high seas, and setting fire to a vessel of the United States),
56
it also repealed the 1790 Crime
Act’s mandatory death penalty for counterfeiting certificates and public securities of the United
States, which the 1825 Crimes Act replaced with a sentence of up to 10 years of imprisonment.
57
49
See Act of Apr. 20, 1818, ch. XCI, §§ 3 (Outfitting vessels for the slave trade), 4 (Citizens transporting slaves),
and 6 (Importing slaves to the United States), 3 Stat. 450, 451-52.
50
Justice Joseph Story, charging a federal jury in Maryland in his role as a Circuit Justice, explained in 1819 that
one would expect the severe penalties Congress imposed for engaging in slave smuggling would “extinguish[]” the
slave trade because “virtuous men would, by their abhorrence, stay its polluted march, and wicked men would be
overawed by its potent punishment.” He lamented, though, that “unfortunately the case is far otherwise. We have
but too many melancholy proofs from unquestionable sources, that it is still carried on with all the implacable
ferocity and insatiable rapacity of former times.” 1 L
IFE AND LETTERS OF JOSEPH STORY 339-40 (William W. Story
ed., 1851).
51
See Act of May 15, 1820, ch. CXIII, §§ 4 (Crew of foreign vessel seizing persons for the slave trade) and 5
(Persons forcibly confining individuals destined for slave trade), 3 Stat. 600, 600-01.
52
See Act of Mar. 3, 1825, ch. LXV (the “1825 Crimes Act”), 4 Stat. 115.
53
1 REG. DEB. 156 (1825).
54
United States v. Coombs, 37 U.S. (12 Pet.) 72, 73 (1838).
55
See 1825 Crimes Act, § 24 (Debasement of U.S. gold or silver coins), 4 Stat. 115, 122.
56
See 1825 Crimes Act, §§ 1 (Burning of a dwelling house), 4 (Murder and rape committed on the high seas), and
11 (Setting fire to a vessel of the United States), 4 Stat. 115-18.
57
Compare 1825 Crimes Act, §§ 17, 4 Stat. 115, 119-20 with 1790 Crimes Act, § 14, 1 Stat. 115. The 1825 Crimes
Act also amended the punishment for receiving stolen goods from a fine of four times the value of the goods
involved and 39 stripes to a term of imprisonment not exceeding three years. Compare 1825 Crimes Act, § 8, 4 Stat.
115, 116 with 1790 Crimes Act, § 17, 1 Stat. 112, 116.
12
The remaining 17 crimes were punishable by terms of imprisonment of up to six months,
58
one
year,
59
three years,
60
five years,
61
and 10 years.
62
Congress relied heavily on mandatory minimum penalties when establishing crimes for
the District of Columbia. The 1831 District of Columbia Crimes Act included 18 offenses with
punishments for conduct occurring in the District of Columbia, fifteen of which carried
mandatory minimum penalties.
63
For example, receiving stolen goods carried a mandatory
minimum penalty of at least one year of imprisonment.
64
Fifteen of the offenses also specified
mandatory minimum penalties for a second or subsequent offense.
65
A second conviction for
receiving stolen goods carried a mandatory minimum penalty of at least two years of
imprisonment.
66
In some instances, Congress prescribed mandatory minimum penalties for
offenses committed in the District of Columbia even where analogous federal offenses of general
application did not carry such penalties. The first offense for receiving stolen goods in the
District of Columbia carried a mandatory minimum penalty of one year of imprisonment and a
maximum term of five years of imprisonment, but under other federal law the offense of
receiving stolen goods carried no mandatory minimum penalty and a statutory maximum term of
imprisonment of three years.
67
58
See 1825 Crimes Act, § 10 (Abandoning a mariner), 4 Stat. 115, 117.
59
See 1825 Crimes Act, § 12 (Extortion by officer of the United States), 4 Stat. 115, 118.
60
See 1825 Crimes Act, §§ 8 (Receiving stolen goods), 19 (Forging ship’s certificates), 21 (Forging copper United
States coins), and 22 (Assault at sea), 4 Stat. 115, 116, 120-22.
61
See 1825 Crimes Act, § 7 (Breaking and entering a vessel) and the two offenses at § 13, (Perjury) and (Procuring
perjury), 4 Stat. 115, 116, 118.
62
See 1825 Crimes Act, §§ 2 (Burning of a non-dwelling house), 6 (Attacking a vessel of the United States), 9
(Plundering a vessel in distress), 16 (Embezzlement of Bank of the United States funds), 17 (Forging a public
security issued by the United States), 18 (Forging a financial instrument), 20 (Forging gold or silver United States
coins), and 23 (Conspiracy to destroy a vessel), 4 Stat. 115, 115-16, 118-22.
63
See 1831 DC Crimes Act, §§ 2 (Manslaughter, Assault with intent to kill), 3 (Arson), 4 (Rape), 5 (Assault and
battery with intent to rape), 6 (Burglary, Robbery), 7 (Horse stealing, Mayhem, Bigamy), 8 (Perjury), 9 (Larceny),
11 (Forgery), 12 (Obtaining goods by false pretenses, Keeping a gaming table), 4 Stat. 448, 448-50.
64
See 1831 DC Crimes Act, § 10, 4 Stat. 448, 449.
65
See 1831 DC Crimes Act, §§ 2 (Manslaughter, Assault with intent to kill), 3 (Arson), 4 (Rape), 5 (Assault and
battery with intent to rape), 6 (Burglary, Robbery), 7 (Horse stealing, Mayhem, Bigamy), 8 (Perjury), 9 (Larceny),
11 (Forgery), 13 (Petty larceny), 4 Stat. 448, 448-50.
66
See 1831 DC Crimes Act, § 10, 4 Stat. 449.
67
Compare 1831 DC Crimes Act, § 10, 4 Stat. 448, 449 with Crimes Act of 1825, § 8, 4 Stat. 115, 116. Also
compare 1831 DC Crimes Act §§ 8 (Perjury) (punishable by a term of imprisonment of not less than two nor more
than 10 years) and 11 (Forgery) (punishable by a term of imprisonment of not less than one nor more than to seven
years), 4 Stat. 448, 449 with 1825 Crimes Act § 13 (Perjury) (punishable by a term of imprisonment of a term not
exceeding five years) and either § 20 (forgery of U.S. gold or silver coins) or § 21 (U.S. copper coins) (punishable
by a term of imprisonment not to exceed 10 or three years, respectively), 4 Stat. 115, 118, 121.
13
In subsequent years, Congress continued to enact criminal laws that addressed specific
needs, and these new laws sometimes imposed mandatory minimum penalties. In 1835,
Congress enacted statutes concerning mutiny, encouragement of mutiny, and mistreatment of a
ship’s crew by the ship’s master or officers, which carried terms of imprisonment not to exceed
ten, five, and five years, respectively.
68
In doing so, however, Congress also repealed the 1790
Crimes Act’s mandatory death penalty for mutiny.
69
In 1840, Congress enacted legislation to
provide for the collection and safeguarding of public revenue, which included a mandatory
minimum penalty of at least six months of imprisonment for embezzlement of funds by an
officer charged with custody of public funds.
70
In the late 1850s, Congress enacted a mandatory
minimum penalty of at least three years of imprisonment for offenses related to the forgery of
land titles in California and forging military land-warrants.
71
C. MANDATORY MINIMUM PENALTIES IN THE CIVIL WAR ERA
In the 1860s, as the federal government responded to the Civil War and its aftermath,
Congress enacted mandatory minimum penalties targeting individuals allied with the
Confederacy. In 1861, Congress created an offense intended to punish individuals who
conspired to overthrow the Government of the United States with a mandatory minimum penalty
of at least six months of imprisonment.
72
A second offense punished individuals recruiting
personnel for military service against the United States with a mandatory minimum penalty of at
least one year of imprisonment, and also punished the recruit by the same mandatory minimum
penalty.
73
In 1862, Congress enacted a law mandating death for certain Confederate spies.
74
A
second offense created by the 1862 Act provided a mandatory minimum penalty of five years of
imprisonment for kidnapping a freed person with intent to sell the person into slavery.
75
The
1862 Act also amended the penalty for treason created in the 1790 Crimes Act, reducing it from
mandatory death to “death; or, at the discretion of the court, . . . imprison[ment] at hard labor for
68
See Act of Mar. 3, 1835, ch. XL, §§ 1 (Mutiny), 2 (Endeavoring to mutiny), and 3 (Mistreatment of ship’s crew),
4 Stat. 775, 775-77.
69
See Act of Mar. 3, 1835, ch. XL, § 1 (Mutiny), 4 Stat. 775, 776.
70
See Act of July 4, 1840, ch. XLI, § 17 (Embezzlement), 5 Stat. 385, 389. Congress repealed this Act the
following year but re-enacted a similar embezzlement offense with the same mandatory minimum. See Act of Aug.
13, 1841, ch. VII, §§ 1 (repealing Act of July 4, 1840), 2 (Embezzlement), 5 Stat. 439, 439-40.
71
See Act of May 18, 1858, ch. XL, 11 Stat. 290, 290-91; Act of Feb. 5, 1859, ch. XXIII, 11 Stat. 381, 381.
72
See Act of July 31, 1861, ch. XXXIII, 12 Stat. 284, 284.
73
See Act of Aug. 6, 1861, ch. LVI, 12 Stat. 317, 317.
74
See Act of Feb. 13, 1862, ch. XXV, § 4, 12 Stat. 339, 340.
75
See Act of Apr. 16, 1862,ch. LIV, § 8, 12 Stat. 376, 378. The maximum penalty was 20 years of imprisonment.
14
not less than five years.”
76
In 1863, Congress prohibited communications with the “present pretended rebel
Government” intended to affect the operations of the federal government without its permission
and punished such communications with a mandatory minimum penalty of not less than six
months of imprisonment.
77
This offense was similar to the Logan Act of 1799, discussed supra,
which imposed a mandatory minimum penalty for like conduct with a foreign government. The
same year, Congress passed legislation regulating the drafting of men into military service that
included a mandatory minimum penalty of at least six months of imprisonment for anyone
encouraging desertion or sheltering a deserter.
78
Fraud against the government carried a
mandatory minimum penalty of at least one year of imprisonment.
79
In 1864, Congress created an offense targeting individuals who entice or aid seamen to
desert from the United States Navy and provided a mandatory minimum penalty of at least six
months of imprisonment.
80
Other offenses enacted during the war carrying mandatory minimum
penalties included embezzlement by an officer or agent of a national bank, which carried a
mandatory minimum penalty of at least five years of imprisonment;
81
creating or circulating
forged notes or possessing counterfeit engraving plates, which carried a mandatory minimum
penalty of at least five years of imprisonment;
82
and damaging post office boxes, which carried a
mandatory minimum penalty of one year of imprisonment.
83
For some other offenses, Congress
set mandatory minimum penalties of imprisonment for two years,
84
six months,
85
or three
months.
86
In the period immediately following the war, Congress established several more
76
See Act of July 17, 1862, ch. CXCV, § 1, 12 Stat. 589, 589-90. Regardless of whether the offender was punished
with death or imprisonment, the Act required that “all his slaves, if any, shall be declared and made free.” Id.
77
See Act of Feb. 25, 1863, ch. LX, 12 Stat. 696, 696.
78
See Act of Mar. 3, 1863, ch. LXXV, § 24, 12 Stat. 731, 735.
79
See Act of Mar. 2, 1863, ch. LXVII, § 3, 12 Stat. 696, 698.
80
See Act of July 1, 1864, ch. CCIV, 13 Stat. 343, 343.
81
See Act of Feb. 25, 1863, ch. LVIII, § 52 (Embezzlement), 12 Stat. 665, 680; see also Act of June 3, 1864, ch.
CVI, § 55 (Embezzlement), 13 Stat. 99, 116; Act of Mar. 3, 1869, ch. CXLV, 15 Stat. 339, 339 (extending penalties
to those who aid or abet such embezzlement). The maximum penalty was 10 years of imprisonment.
82
See Act of Feb. 25, 1863, ch. LVIII, §§ 57-58, 12 Stat. 665, 680-81. The maximum term of imprisonment was 15
years. See also Act of June 3, 1864, ch. CVI. §§ 59-60, 13 Stat. 99, 117.
83
See Act of Mar. 3, 1865, ch. LXXXIX, § 13, 13 Stat. 504, 506-07. The maximum term of imprisonment was
three years.
84
See Act of July 3, 1866, ch. CLXII, § 2, 14 Stat. 81, 81-82 (death caused by transporting nitroglycerine in a
passenger conveyance; no maximum).
85
See Act of Mar. 3, 1863, ch. LXXXI, § 2, 12 Stat. 755, 755 (federal officer’s disobeying a judicial order to
discharge a prisoner; no maximum).
86
See, e.g., Act of Mar. 3, 1865, ch. LXXIX, § 17, 13 Stat. 487, 489-90 (enlisting a person not eligible to serve, or
depriving a soldier of a bounty earned for service; maximum two years).
15
mandatory minimum penalties, most commonly with a minimum term of one year of
imprisonment.
87
D. THE REVISED STATUTES: MANDATORY MINIMUM PENALTIES AFTER THE CIVIL WAR
In the 1870s, Congress codified federal law, resulting in the Revised Statutes, a
predecessor of the current United States Code.
88
The absence of a prior codification makes it
difficult to state with precision how many mandatory minimum penalties were in effect at any
particular time because Congress tended to overwrite old laws with new ones and repealed an
uncertain number of provisions by implication. The Revised Statutes thus provide a snapshot of
all federal crimes and penalties in force in 1878.
89
At least 108 offenses codified in the Revised Statutes carried a mandatory penalty. Of
these 108 offenses, 16 mandated death. Those capital offenses included murder, piracy, various
maritime crimes, and arson.
90
Murder, piracy, and slave trafficking had carried the death penalty
87
For statutes carrying a mandatory minimum penalty of one year of imprisonment, see, e.g., Act of July 13, 1866,
ch. CLXXXIV, § 45, 14 Stat. 98, 163 (for trafficking in distilled spirits, either imprisonment for not less than three
months or a fine); Act of Mar. 2, 1867, ch. CXCIII, 14 Stat. 557, 557 (for robbery or larceny of property of the
United States, either imprisonment at hard labor from one year to 10 years, or a fine, or both); Act of Mar. 2, 1867,
ch. CLXIX, § 26, 14 Stat. 471, 483-84 (for unlawful claims settlement by a revenue officer, maximum 10 years of
imprisonment); Act of July 14, 1870, ch. CCLIV, § 1, 16 Stat. 254, 254 (for perjury in connection with immigration,
maximum five years of imprisonment).
For statutes carrying mandatory minimum penalties of other lengths, see, e.g., Act of July 13, 1866, § 38,
14 Stat. 98, 159 (for fraudulent packaging of distilled spirits, imprisonment for a minimum of two years and a
maximum of five years); Act of Mar. 2, 1867, ch. CLXIX, §§ 9, 28, 29, 14 Stat. 471, 473, 484 (for evading liquor or
tobacco taxes, imprisonment for a minimum of 60 days and a maximum of two years; for impersonating a revenue
officer, imprisonment for a minimum of six months and a maximum of two years; for unlawfully mixing or selling
illuminating oils, imprisonment for a minimum of six months and a maximum of three years); Act of July 20, 1868,
ch. CLXXVI, §§ 44, 45, 48, 57, 71-72, 15 Stat. 125, 142-44, 149-50, 156-57 (for various offenses involving liquor
and tobacco taxes, imprisonment for minimum terms ranging from 10 days to two years); Act of Dec. 22, 1869, ch.
III, § 5, 16 Stat. 59, 60 (for hindering a member of the reconstructed legislature of Georgia from attending or
participating at session, imprisonment at hard labor for a minimum of two years and a maximum of 10 years); Act
of July 14, 1870, ch. CCLIV, § 2, 16 Stat. 254, 254-55 (for immigration fraud, either imprisonment at hard labor
from one year to five years, or a fine, or both); and Act of Mar. 3, 1871, ch. CXX, § 3, 16 Stat. 544, 570 (for making
an unlawful contract with Indians, imprisonment for a minimum of six months (with no maximum)).
88
See Ralph H. Dwan & Ernest R. Feidler, The Federal Statutes—Their History and Use, 22 MINN. L. REV. 1008,
1012-16 (1938). Congress enacted the first Revised Statutes of the United States in June 22, 1874, thereby
consolidating all of the general and permanent laws into a single act. See Act of June 22, 1874, §§ 5595-96, 18 Stat.
1, 1091. However, because of errors in that version, Congress authorized the publication of a second edition of the
Revised Statutes, which became law in 1878. See Act of Mar. 2, 1877, 19 Stat. 268, 268-69; Dwan & Feidler,
supra, at 1014-16.
89
See Revised Statutes (1878) [hereinafter the Revised Statutes or Rev. Stat.].
90
Rev. Stat. §§ 5323 (accessory before the fact to piracy), 5339 (murder), 5345 (rape in maritime jurisdiction),
5365 (owner destroying his vessel at sea), 5366 (person other than owner destroying a vessel at sea), 5368 (piracy
under the laws of nations), 5369 (seaman laying violent hands upon his commander), 5370 (robbery upon the high
seas), 5371 (robbery on shore by crew of piratical vessel), 5372 (murder upon the high seas), 5373 (piracy under
color of a foreign commission), 5374 (piracy by subjects or citizens of a foreign state), 5375 (piracy in confining,
16
since the 1790 Crimes Act or, in the case of slave trafficking, since the 1820s. The Revised
Statutes repealed the mandatory death penalty for counterfeiting, one of the original capital
crimes established in the 1790 Crimes Act.
91
The Revised Statutes also reflected Congress’s
1863 amendment to the treason offense, which was punishable by death or, in the court’s
discretion, by a term of at least five years of imprisonment.
92
Of the 108 offenses codified in the Revised Statutes that carried a mandatory penalty, at
least 92 of those offenses carried a mandatory minimum term of imprisonment.
93
Only one
offense — robbery of United States mail — required life imprisonment, but even then only upon
a second conviction; otherwise, the offense carried a mandatory minimum penalty of five years
of imprisonment.
94
The remaining offenses required mandatory minimum penalties ranging
from 10 days (for offenses relating to the destruction of tobacco package tax stamps) to five
years of imprisonment (for counterfeiting national bank notes).
Over half (50) of the offenses in the Revised Statutes that carried a mandatory minimum
penalty involved internal revenue taxation, primarily aimed at preventing fraud in the collection
and payment of excise taxes on tobacco and alcohol. Shortly after the Civil War began, the
federal government levied excise taxes — for the first time since the late 18th century — on
alcohol, tobacco, and other goods in order to raise funds for the costly war effort.
95
Excise taxes
constituted a large percentage of the federal government’s overall revenue, and therefore
thorough collection was a crucial goal, but it proved difficult.
96
As one of many efforts aimed at
increasing compliance with the alcohol and tobacco duties, Congress enacted a variety of
mandatory minimum penalties.
97
Of these mandatory minimum penalties, only one required
more than one year of imprisonment (a two-year mandatory minimum penalty for affixing false
detaining, or transferring Negros on vessels for the purpose of slavery), 5385 (arson of a dwelling house within a
United States fort), 5387 (arson of a United States vessel of war), 5400 (rescue of an individual sentenced to death).
91
See Rev. Stat. § 5415.
92
See Rev. Stat. § 5332.
93
See Table C-1 (mandatory minimums penalties in the 1878 revised statutes) in Appendix C of this Report.
94
Rev. Stat. § 5472.
95
See Report of the Commissioner of Internal Revenue, at iv–vii (1875).
96
See ALBERT SIDNEY BOLLES, A FINANCIAL HISTORY OF THE UNITED STATES, FROM1861 TO 1885, at 421 (1886)
(“The frauds began soon after enacting the law, and quickly reached gigantic proportions. A congressional
investigating committee, in 1868, declared that if the tax were honestly paid, $200,000,000 would be collected
annually, when, in truth, not much more than one-eighth of that sum had been received.”). See Report of the
Commissioner of Internal Revenue for the Fiscal Year Ended June 30, 1875, at xiv–xx (1875) (detailing the nature
of the distilled spirits fraud and the government’s collection efforts).
97
These mandatory minimums were largely enacted in 1868. See Act of July 20, 1868, 15 Stat. 125. The Secretary
of the Treasury viewed the new legislation as an improvement over former law, in part because it was “more
rigorous in its punishment of offenders,” but cautioned that “its successful operation must depend upon the vigilance
and fidelity of the local officers. The corruption of storekeepers, gaugers, and assistant assessors . . . will always
open sources of ruin to honest tax-payers and loss to the treasury, which neither the wisest legislation nor the most
stringent regulations of the department can close.” Annual Report of the Secretary of the Treasury 480 (1868).
17
tobacco stamps); eight required one year of imprisonment; 26 required at least six months of
imprisonment; eight required at least three months of imprisonment; and the remaining seven
required from 10 days to one month of imprisonment.
98
However, evidence suggests that while
criminal prosecutions were a key feature of combating tax evasion,
99
these mandatory minimum
penalties resulted in relatively few offenders being imprisoned
100
and did not effectively increase
compliance with the revenue laws.
101
Moreover, widespread evasion of the excise taxes ended
by the mid-1880s, apparently due not to the mandatory minimum penalties, but to advances in
the government’s ability to monitor alcohol output and reforms in the hiring and supervision of
revenue officers.
102
Beyond revenue offenses, the Revised Statutes primarily employed mandatory minimum
penalties for offenses involving counterfeiting and forgery, piracy, and slave trafficking, in
addition to misconduct by government agents and interference with governmental functions.
The use of mandatory minimum penalties for offenses relating to counterfeiting, piracy, and
slave trafficking is unsurprising because they all were historically punishable by death.
Moreover, the mandatory minimum penalties in effect in 1878 were relatively short compared to
98
See Table C-1 of this Report.
99
Annual Report of the Secretary of the Treasury on the State of the Finances, at xxxv-xxxvii (1875) (“The
Secretary considers it important to the future collection of the revenue, that all parties engaged in persistent and
systemic frauds shall be visited with the severest penalties of the law. To this end, instructions have been repeatedly
given . . . to render all proper assistance to the officers of the Department of Justice in the prosecution of the cases
now pending, and in the detection and punishment of such guilty parties as have not yet been indicted.”).
100
In 1889, the Attorney General reported to Congress that there were 14,588 federal criminal prosecutions, of
which 5,648 were brought under the internal revenue laws. Although the 14,588 prosecutions yielded 3,158
convictions, the federal government received only 29 prisoners that year who “were committed for violation of the
revenue laws.” Annual Report of the Attorney General of the United States, at vii to viii, xii (1889). Data for earlier
years is apparently unavailable for, as the Attorney General reported in 1873, it was difficult and costly to collect
imprisonment data from the wardens of the many state penitentiaries that held federal prisoners. See Annual Report
of the Attorney General of the United States for the Fiscal Year Ending June 30, 1873, at 5 (1873). However, based
on the data the Attorney General was able to collect in 1873, of the 16,201 persons in federal custody, 1,117 were
convicted of miscellaneous offenses (a category that apparently included those imprisoned for internal revenue
crimes in addition to many other types of offenses). See id. at 36-39.
101
See BOLLES, supra note 96, at 424-25 (“To destroy these frauds, which had grown to enormous dimensions, and
stretched their strong roots in so many directions, was not easy. The harder Congress tried to combat them, the more
they grew. Every remedy proved unavailing.”); United States v. Ulrici, 28 F. Cas. 328, 331 (C.C. Mo. 1875)
(“Notwithstanding the heavy penalties denounced against crimes which go to defraud the government of its revenue
from internal taxes, and notwithstanding the minuteness and particularity in the description of these crimes, and
notwithstanding all of the aids which Congress has given by legislation to the enforcement of the revenue laws, they
have been very imperfectly executed, and that the government is cheated out of perhaps one-half of its revenue,
especially that from the tax on whisky and tobacco.”).
102
See Report of the Commissioner of Internal Revenue for the Fiscal Year Ended June 30, 1882, at xv (1882).
(declaring a “successful close of the struggle to establish and maintain the internal-revenue laws of the United
States” and that “[f]rauds in the manufacture and sale of whisky and tobacco in the districts where they have hitherto
most prevailed have become the exception rather than the rule”); B
OLLES, supra note 96, at 437 (attributing the
“marked improvement” in the collection of alcohol excise taxes to “[t]he method adopted in 1868 of measuring the
product at the still, and of requiring the payment of a tax on that quantity, together with the selection of better
officers for administering the law”).
18
those Congress enacted in the 20th century, discussed infra. Only 19 of the 42 statutes carrying
a mandatory minimum penalty for offenses unrelated to revenue required a term of imprisonment
of more than one year, and most of those 19 offenses were lesser versions of capital slave
trafficking and maritime offenses.
103
Only nine offenses carried a mandatory minimum penalty
of three years of imprisonment, and only two offenses carried a mandatory minimum penalty of
five years of imprisonment. Thus, many of the mandatory minimum penalties in the Revised
Statutes applied to offenses that historically had carried severe penalties, and the mandatory
minimum penalties in the Revised Statutes were generally shorter than the mandatory minimum
penalties that are most commonly applied today.
E. THE 1909 CRIMINAL CODE AND SUBSEQUENT CODIFICATIONS IN THE FIRST HALF OF
THE
20TH CENTURY
In the late 1800s, Congress initiated a chain of events that led to the repeal of some of the
mandatory minimum penalties codified in the Revised Statutes. In 1897, Congress created the
Commission to Revise and Codify the Criminal and Penal Laws of the United States.
104
Congress initially charged the Revision Commission with revising and codifying the federal
criminal and penal codes,
105
but before the Revision Commission submitted its report, Congress
expanded its duties to include a complete revision and codification of all federal laws.
106
In its reports to Congress, the Revision Commission recommended the abolition of
mandatory minimum penalties for many crimes not punishable by death.
107
The Revision
Commission explained in a 1901 interim report that prescribing only statutory maximum
sentences instead of mandatory minimum penalties embraced “the more enlightened practice [of]
fit[ting] the punishment to the criminal” rather than assigning penalties based solely on the
offense committed.
108
The Revision Commission further explained in its final report in 1906 that
it had changed criminal penalties “in some instances to mitigate the severity that characterized
former times, and in others to respect the principle of proportioning the punishment to the
relative gravity of the offenses.”
109
103
See Table C-1 of this Report.
104
See Act of June 4, 1897, 30 Stat. 11, 58 [hereinafter the Revision Commission].
105
Id. at 58.
106
See S. REP. NO. 60–10, pt. 1, at 1-2 (1908).
107
See Revision Commission to Revise and Codify the Laws of the United States, Final Report of the Commission
to Codify and Revise the Laws of the United States (1906). The Revision Commission’s revisions and codifications
of the criminal code did not include the mandatory minimum penalties relating to internal revenue enforcement. See
id. Thus, the Revision Commission’s final report left those penalties in place. See id.
108
See Revision Commission to Revise and Codify the Criminal and Penal Laws of the United States, Report on the
Penal Code of the United States, at xxii (1901). The Revision Commission also favored a parole system but
recognized that such a system was impractical because most federal prisoners were then housed in state rather than
federal institutions. See id. at xxxii–xxxiii.
109
See Revision Commission to Revise and Codify, supra note 107, at 100.
19
In 1907, Congress established a Special Joint Committee on the Revision of the Laws,
which it directed “to examine, consider, and submit to Congress recommendations upon the
revision and codification of the laws reported by the statutory [R]evision [C]omission.”
110
The
Committee first took up the portion of the Revision Commission’s work dealing with criminal
offenses, resulting in the enactment in 1909 of a new criminal code [hereinafter the 1909
Criminal Code].
111
The Special Joint Committee largely agreed with the Revision Commission’s
opposition to mandatory minimum penalties.
112
In its report, the Special Joint Committee on the Revision of the Laws gave the following
reasons for repealing mandatory minimum penalties:
The committee has also adopted a uniform method of fixing in all offenses
not punishable by death the maximum punishment only, leaving the minimum to
the discretion of the trial judge.
The criminal law necessarily subjects to its corrective discipline all who
violate its provisions. The weak and the vicious, the first offender and the
atrocious criminal, the mere technical transgressor and the expert in crime are
alike guilty of the same offense. In the one case the utmost severity of
punishment can scarcely provide the protection to which society is entitled; in the
other anything except a nominal punishment may effectually prevent the
reclamation of the offender.
The argument most frequently urged against leaving the minimum
punishments to the discretion of the trial judge is that it affords parties convicted
of a crime of a heinous character an opportunity to obtain immunity because of
the weakness or dishonesty of judges. It has been well said by a distinguished
authority upon this subject that—
Instances of the former are rare, and of the latter none is believed
by us ever to have existed. The purity of our judiciary is one of the
things which calumny has yet left untouched.
This recommendation will be found in accordance with the humane spirit
of advanced criminal jurisprudence. The early English statutes were proverbially
cruel; the gravest crimes and the most trivial offenses alike invoked the penalty of
death. Our own crimes act of 1790 reflected this barbarous spirit and denounced
the death penalty for thirteen distinct offenses, but this spirit of vindictive
retribution has entirely disappeared. We have abolished the punishment of death
in all but three cases—treason, murder, and rape—and have provided that even in
these cases it may be modified to imprisonment for life; and as humane judges in
England availed themselves of the most technical irregularities in pleadings and
proceedings as an excuse for discharging prisoners from the cruel rigors of the
110
See S. REP. NO. 60–10, pt. 1, at 1 (1908); H.R.J. Res. 19, 59th Cong., 34 Stat. 1423, 1423 (1907).
111
See Act of Mar. 4, 1909, ch. 321, 35 Stat. 1088.
112
See S. REP. NO. 60–10, pt. 1, at 14 (1908).
20
common law, so jurors here often refuse to convict for offenses attended with
extenuating circumstances rather than submit the offender to what in their
judgment is the cruel requirement of a law demanding a minimum punishment.
113
The 1909 Criminal Code repealed at least 31 of the mandatory minimum terms of
imprisonment codified in the Revised Statutes, representing mandatory minimum penalties for
offenses including misconduct by government employees, counterfeiting and forgery, and slave
trafficking.
114
Although the Revision Commission had recommended the repeal of additional
mandatory minimum penalties as part of its codification of all federal law, Congress enacted
only the Revision Commission’s work on the Criminal Code and the Judicial Code.
115
Thus,
mandatory minimum penalties with respect to offenses that were not included in the Criminal
Code remained in force after 1909. The substantial majority of the remaining mandatory
minimum penalties related to internal revenue collection, discussed supra.
116
In addition to eliminating some mandatory minimum penalties, Congress in enacting the
1909 Criminal Code reduced the penalties for various offenses from mandatory death to
mandatory life imprisonment. Those offenses were detaining or transferring slaves aboard a
vessel, seizing slaves on foreign shores, piracy, a seaman laying violent hands upon his
commander, robbery on shore by a piratical crew, piracy under color of foreign commission, and
piracy by aliens—all of which had been punishable by death since the early republic.
117
The
1909 Criminal Code replaced the mandatory death penalty for rescuing a condemned person and
arson with statutory maximum terms of up to 25 and 20 years of imprisonment, respectively.
118
113
See S. REP. NO. 60–10, pt. 1, at 14 (1908).
114
Compare 1909 Criminal Code § 341 (enumerating repealed sections of the Revised Statutes), with Table C-1
(Mandatory Minimum Penalties in the 1878 Revised Statutes) in Appendix C of this Report.
115
See Dwan & Feider, supra note 88, at 1018.
116
The evidence indicates that the mandatory minimum penalties relating to internal revenue collection were rarely
used in the late-19th century. Revenue officials observed as early as 1882 that the government had successfully
ended widespread fraud in collection of excise taxes, and incarceration statistics from the post-Reconstruction era
show that not many defendants were imprisoned for committing internal revenue offenses. See supra notes 96 to
104 and accompanying text. This trend continued into the 20th century. For example, in 1910, the Attorney
General reported that there were 15,371 completed criminal prosecutions nationwide. While 4,355 of those
prosecutions involved internal revenue offenses, only 161 of newly-incarcerated federal prisoners were held on
account of violating the internal revenue laws. See Annual Report of the Attorney General of the United States for
the Year Ended June 30, 1910, at 36, 67 (1910). The same year, fines totaling $278,746.58 were assessed in internal
revenue criminal cases. See id. at 67.
117
See 1909 Criminal Code §§ 246 (confining, detaining or transferring slaves aboard a vessel, punished by life
imprisonment), 247 (seizing slaves on foreign shores, punished by life imprisonment), 290 (piracy under the law of
nations, punished by life imprisonment), 294 (seaman laying violent hands upon his commander, punished by life
imprisonment), 302 (robbery on shore by a piratical crew, punished by life imprisonment), 304 (piracy under color
of foreign commission, punished by life imprisonment), 305 (piracy by aliens, punished by life imprisonment); see
also supra note 90 (mandatory capital crimes in the Revised Statutes).
118
See 1909 Criminal Code §§ 142 (rescue of a condemned person going to or at an execution), 285 (arson of a
dwelling house in the maritime or territorial jurisdiction), 286 (arson of another building or a vessel in the maritime
or territorial jurisdiction).
21
First degree murder and rape remained mandatory capital crimes in the 1909 Criminal Code;
119
second degree murder, obstructing the escape of a shipwrecked person, and holding out a false
light to a vessel in distress carried mandatory minimum penalties of 10 years of imprisonment;
120
destruction of a vessel required imprisonment for life or a “term of years”;
121
and treason
continued to carry an alternative penalty structure requiring either death or a mandatory
minimum of five years of imprisonment.
122
Congress subsequently enacted offenses carrying mandatory minimum penalties in the
Prohibition Era. Congress passed the Volstead Act in October 1919, in anticipation of the
ratification of the Eighteenth Amendment.
123
The Act placed significant restrictions on the
unlawful manufacture or sale of alcohol and punished some violations with mandatory minimum
penalties. A first offense for unlawful manufacture or sale received a maximum penalty of six
months of imprisonment; a second or subsequent offense received a mandatory minimum penalty
of at least one month but not more than five years of imprisonment.
124
Additional mandatory
minimum penalties were prescribed for maintaining a premise where alcohol was unlawfully
sold
125
(at least 30 days of imprisonment) and contempt for violating an injunction concerning
any provision of the Volstead Act
126
(at least 30 days of imprisonment). These mandatory
minimum penalties were as short-lived as Prohibition itself; Congress repealed the Volstead Act
and its penalty provisions upon ratification of the Twenty-First Amendment.
127
In 1948, with the enactment of Title 18 of the United States Code, Congress changed the
punishment for rape from mandatory death to “death, or imprisonment for any term of years or
for life,”
128
but added a mandatory minimum penalty of 10 years of imprisonment for homicide
or kidnapping during a bank robbery or larceny.
129
Congress also reduced the applicable penalty
119
See 1909 Criminal Code §§ 275 (first degree murder), 278 (rape).
120
See 1909 Criminal Code §§ 275 (second degree murder), 297 (obstructing escape of a shipwrecked person), 297
(holding out false light to a vessel in distress).
121
See 1909 Criminal Code §§ 300 (owner destroying vessel at sea), 301 (other person destroying, or attempting to
destroy, a vessel at sea).
122
See 1909 Criminal Code § 2 (treason).
123
See National Prohibition (Volstead) Act, Pub. L. No. 66–66, 41 Stat. 305 (1919); Amendment to the
Constitution, 40 Stat. 1941, 1941-42 (1919) (certifying the ratification of the Eighteenth Amendment).
124
See Pub. L. No. 66–66, § 29, 41 Stat. 305, 316 (1919).
125
See Pub. L. No. 66–66, § 3, 41 Stat. 305, 306 (1919).
126
See Pub. L. No. 66–66, § 24, 41 Stat. 305, 315 (1919).
127
See U.S. Const. amend. XXI; see also Liquor Law Repeal and Enforcement Act, Pub. L. No. 74–347, 49 Stat.
872 (1935) (repealing titles I and II, and amending title III, of the Volstead Act).
128
See 18 U.S.C. § 2031 (1948), 62 Stat. 683, 795.
129
See 18 U.S.C. § 2113(e) (1948).
22
for seizing persons on foreign shores to sell into slavery and holding slaves aboard a vessel from
mandatory life imprisonment to indefinite terms of imprisonment of up to seven or four years,
respectively.
130
F. MANDATORY MINIMUM PENALTIES FROM THE MID-TWENTIETH CENTURY
1. Introduction
As detailed herein, beginning in 1951, Congress changed how it used mandatory
minimum penalties in three significant ways. First, Congress enacted more mandatory minimum
penalties. Second, Congress expanded its use of mandatory minimum penalties to offenses not
traditionally covered by such penalties. Before 1951, mandatory minimum penalties typically
punished offenses concerning treason, murder, piracy, rape, slave trafficking, internal revenue
collection, and counterfeiting. Today, the majority of convictions under statutes carrying
mandatory minimum penalties relate to controlled substances, firearms, identity theft, and child
sex offenses. Third, the mandatory minimum penalties most commonly used today are generally
lengthier than mandatory minimum penalties in earlier eras.
In the second half of the 20th century, Congress reversed its prior policy of disfavoring
mandatory minimum penalties to combat what it perceived as widespread problems resulting
from drug trafficking and related crime. In 1951, Congress enacted a mandatory minimum
penalty of two years of imprisonment for violating the Narcotic Drugs Import and Export Act,
which broadly prohibited the importation, sale, purchase, and receipt of controlled substances.
131
Second and third violations of the Act carried mandatory minimum penalties of five and 10 years
of imprisonment, respectively.
132
And when Congress created additional controlled substances
offenses in 1956, it set a mandatory minimum penalty of 10 years of imprisonment for selling
heroin to a juvenile and five years of imprisonment for a first offense of possessing narcotics on
a vessel.
133
By the late 1960s, however, as mandatory minimum penalties for drug offenses became
increasingly unpopular, the Nixon administration proposed a sweeping reform of the controlled
substance sentencing laws.
134
As a result, Congress enacted the Comprehensive Drug Abuse
Prevention and Control Act of 1970,
135
which repealed nearly all mandatory minimum penalties
for drug offenses. Congress believed that changes in the existing penalties, “particularly through
elimination of mandatory minimum sentences,” would establish “a more realistic, more flexible,
130
See 18 U.S.C. §§ 1585 (Seizure, detention, transportation or sale of slaves), 1587 (Possession of slaves aboard
vessel) (1948), 62 Stat. 683, 773.
131
See Pub. L. No. 82–255, § 1, 65 Stat. 767, 767 (1951).
132
See id.
133
See Narcotics Control Act of 1956, §§ 103, 105, 107, 108, Pub. L. No. 84–728, 70 Stat. 567, 568, 570-71.
134
See. e.g., 116 Cong. Rec. 33,315 (1970) (statement of Rep. MacGregor).
135
Pub. L. No. 91–513, 84 Stat. 1236 (1970).
23
and thus more effective system of punishment and deterrence of violations of the federal
narcotics laws.”
136
Congress’s repeal of mandatory minimum penalties for drug offenses did not necessarily
reflect a general policy disfavoring mandatory minimum penalties for all types of offenses. For
example, Congress also amended 18 U.S.C. § 924(c) to require a mandatory minimum penalty of
at least one year of imprisonment for using or carrying a firearm during the commission of a
felony, as well as a mandatory consecutive two-year term of imprisonment for second and
subsequent offenses.
137
In 1970, the same year it repealed mandatory minimum penalties for
drug offenses, Congress created a mandatory minimum penalty of at least one year of
imprisonment for using or carrying explosives while committing certain other crimes.
138
Congressional action in the 1980s resulted in the enactment of many additional
mandatory minimum penalties and an increase in the length of existing penalties—particularly
for drug offenses and violent crimes.
139
Congress’s use of mandatory minimum penalties in this
period followed a shift in sentencing attitudes away from a rehabilitative model toward
controlling crime using “more certain, less disparate, and more appropriately punitive”
sentences.
140
This shift contributed to the enactment of the mandatory minimums that are most
commonly applied today, particularly the penalties for firearm and drug trafficking crimes.
2. Mandatory Minimum Penalties for Drug Offenses
The Anti-Drug Abuse Act of 1986
141
established the basic framework of mandatory
minimum penalties currently applicable to federal drug trafficking offenses. The quantities
triggering those mandatory minimum penalties, which ranged from five years to life
imprisonment, differed for various drugs and, in some cases, including cocaine, for different
forms of the same drug. Congress expedited passage of the 1986 Act in response to a number of
circumstances, including the increased incidence of drug use and trafficking and well-publicized
tragic incidents such as the June 1986 death of Boston Celtics’ first-round draft pick, Len Bias.
Because of the heightened concern and national sense of urgency surrounding drugs generally
and crack cocaine specifically, Congress bypassed much of its usual deliberative legislative
136
H. REP. NO. 91–1444 (1970), reprinted in 1970 U.S.C.C.A.N. 4566.
137
See Omnibus Crime Control Act of 1970, Pub. L. No. 91–644, tit. II, § 13, 84 Stat. 1880, 1889-90 (1971).
138
See Pub. L. No. 91–452, tit. XI, § 1102, 84 Stat. 922, 957 (1970) (codified as amended at 18 U.S.C. § 844(h)).
139
During this time period Congress also developed and passed the Sentencing Reform Act.
140
1991 COMMISSION REPORT at 7.
141
See Pub. L. No. 99–570, 100 Stat. 3207 (1986).
24
process.
142
As a result, Congress held no committee hearings and produced no reports related to
the 1986 Act (although there were 17 related reports on various issues).
143
Floor statements delivered by members in support of the 1986 Act and a committee
report on a predecessor bill suggest that Congress intended to create a two-tiered penalty
structure for discrete categories of drug traffickers. Specifically, Congress intended to link the
five-year mandatory minimum penalties to what some called “serious” traffickers and the ten-
year mandatory minimum penalties to “major” traffickers. Drug quantity would serve as a proxy
for identifying the type of trafficker.
144
Senator Robert Byrd, then the Senate Minority Leader, summarized the intent behind the
legislation:
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.
145
A report issued by the House Judiciary Subcommittee on Crime following its
consideration of a predecessor bill also provides evidence of Congress’s intent to establish two-
tiered mandatory minimum penalties for serious and major traffickers. The Subcommittee
determined that the five and ten-year mandatory minimum sentencing structure would encourage
the Department of Justice to direct its “most intense focus” on “major traffickers” and “serious
traffickers.”
146
“One of the major goals of this bill is to give greater direction to the DEA and the
U.S. Attorneys on how to focus scarce law enforcement resources.”
147
The 1986 Act distinguished between powder cocaine and cocaine base (also known as
crack cocaine), by treating quantities of cocaine base differently than similar quantities of
142
See e.g., 132 CONG. REC. 26,436 (Sept. 26, 1986) (statement of Sen. Hawkins) (“Drugs pose a clear and present
danger to America’s national security. If for no other reason we should be addressing this on an emergency basis.”).
143
See U.S. SENT’G COMM’N, REPORT TO THE CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY 5-6 (May
2002).
144
See U.S. SENT’G COMM’N, REPORT TO THE CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY 6 (May
2002).
145
132 CONG. REC. 27,193–94 (Sept. 30, 1986); see also 132 CONG. REC. 22,993 (Sept. 11, 1986) (statement of
Rep. LaFalce) (“[S]eparate penalties are established for the biggest traffickers, with another set of penalties for other
serious drug pushers.”).
146
H.R. REP. NO. 99–845, pt. 1, at 11-12 (1986).
147
Id. at 11.
25
powder cocaine.
148
Under the so-called “100-to-1” ratio, the 1986 Act established a mandatory
minimum penalty of five years of imprisonment for trafficking offenses involving at least five
grams of crack cocaine, whereas trafficking offenses involving powder cocaine required at least
500 grams of the substance to trigger the same mandatory minimum.
149
The legislative history
of the ratio shows that, in addition to viewing the ratio as consistent with the Act’s general
serious/major trafficker penalty structure,
150
Congress predicated the ratio upon its conclusion
that crack cocaine was more dangerous than powder cocaine because of its especially deleterious
effects on the communities where it was becoming increasingly prevalent.
151
Congress has since
altered the penalties applicable to crack cocaine in the Fair Sentencing Act of 2010, as discussed
in more detail below.
In 1988, the Omnibus Anti-Abuse Act established a five-year mandatory minimum
penalty for possessing more than five grams of crack cocaine, in addition to increasing the
mandatory minimum penalty for engaging in a continuing drug enterprise (from 10 to 20 years of
imprisonment).
152
The 1988 Act also extended the mandatory minimum penalties for drug
trafficking crimes to include conspiracies to commit those substantive offenses, thereby
broadening the scope of mandatory minimum penalties to include virtually all offenders in drug
trafficking organizations.
153
3. Mandatory Minimum Penalties for Firearms Offenses
With respect to firearms offenses, in 1984 Congress amended 18 U.S.C. § 924 to provide
a mandatory penalty of five years of imprisonment for using or carrying a firearm during a
“crime of violence,”
154
and elsewhere established mandatory sentencing enhancements for
148
See Pub. L. No. 99–570, § 1002, 100 Stat. 3207, 3207-2 (1986) (amending 21 U.S.C. § 841(b)(1)).
149
See id.
150
132 CONG. REC. 26,447 (Sept. 26, 1986) (statement of Sen. Chiles) (“Those who possess 5 or more grams of
cocaine freebase will be treated as serious offenders. Those apprehended with 50 or more grams of cocaine freebase
will be treated as major offenders. Such treatment is absolutely essential because of the especially lethal
characteristics of this form of cocaine.”)
151
See, e.g., 132 CONG. REC. 31,329-30 (Oct. 15, 1986) (statement of Sen. Chiles) (“And so we find that people,
when they are addicted, will go out and steal, rob, lie, cheat, take money from any savings, take refrigerators out of
their houses, anything they can get their hands on to maintain that habit. That, of course, has caused crime to go up
at a tremendously increased rate in our cities and in our States – the crimes of burglary, robbery, assault, purse
snatching, mugging, those crimes where people are trying to feed that habit.”); 132 C
ONG. REC. 27,176 (Sept. 30,
1986) (statement of Sen. Hart) (“Then along came crack-cocaine – and the high was available to all. So too,
however, were the lows: The raging paranoia, the addiction rooted deep in the brain’s chemical structure, and worst,
the senseless deaths.”); 132 C
ONG. REC. 5983 (Mar. 21, 1986) (statement of Rep. Rangel) (“What is most
frightening about crack is that it has made cocaine widely available and affordable for abuse among our youth.”).
152
See Pub. L. 100–690, §6371, 102 Stat. 4181, 4370 (1988) (amending 21 U.S.C. § 844); id. § 6481(a) (amending
21 U.S.C. § 848(a)).
153
See id. § 6470(a) (amending 21 U.S.C. §§ 846, 963).
154
See Pub. L. No. 98–473, § 1005(a), 98 Stat. 1837, 2138-39 (1984) (amending 18 U.S.C. § 924(c)).
26
possessing dangerous ammunition during drug and violent crimes.
155
Two years later, in 1986,
Congress expanded the scope of section 924(c) to include carrying or using a firearm during a
drug trafficking crime.
156
Congress also substantially expanded the armed career criminal
provision at section 924(e), and its mandatory minimum penalty of 15 years of imprisonment, to
cover firearms possession offenses committed by those with three convictions for crimes broadly
defined as “violent felonies” and “serious drug offenses.”
157
In 1998, Congress again amended 18 U.S.C. § 924(c) in three ways,
158
primarily in
response to the Supreme Court’s decision in Bailey v. United States, in which the Court
interpreted the prior version of section 924(c) to require the defendant’s “active employment” of
a firearm in the predicate offense.
159
First, prior law had established a mandatory minimum
penalty of five years of imprisonment for an offender who “use[d] or carrie[d]” a firearm during
and in relation to a crime of violence or drug trafficking crime.
160
Congress amended the statute
also to require a mandatory minimum penalty of five years of imprisonment if the offender
“possesses a firearm” “in furtherance of any such crime.”
161
Second, Congress established more
severe mandatory minimum penalties for certain offenders depending on whether, in violating
section 924(c), a firearm was “brandished” or “discharged”— requiring mandatory minimum
penalties of seven years and 10 years of imprisonment, respectively.
162
Finally, Congress
increased the mandatory minimum penalty for second or subsequent convictions under section
924(c) from 20 years to 25 years of imprisonment.
163
Thus, in addition to responding to the
decision in Bailey, Congress also amended section 924(c) to ensure that more serious offenses
carried progressively higher mandatory minimum penalties.
164
155
See Pub. L. No. 98–473, § 1006(a), 98 Stat. 1837, 2139 (1984) (codified as amended at 18 U.S.C. § 929).
156
See Pub. L. No. 99–308, § 104, 100 Stat 449, 456 (1986) (amending 18 U.S.C. § 924(c)).
157
See Career Criminals Amendment Act of 1986, Pub. L. No. 99–570, § 1402, 100 Stat. 3207, 3207-39 to 40.
Previously, § 924(e) applied only to those convicted of burglaries and robberies. Id.
158
Pub. L. No. 105–386, 112 Stat. 3469 (1998).
159
516 U.S. 137, 143 (1995).
160
See 18 U.S.C. § 924(c) (1994). Both prior and present versions of section 924(c) establish longer, 10- and 30-
year mandatory minimum penalties for certain types of firearms, such as assault weapons, short-barreled shotguns
and rifles, machineguns, destructive devices, and firearms equipped with silencers or mufflers. See id.
161
Pub. L. No. 105–386, 112 Stat. 3469 (1998).
162
Id.
163
Id.
164
144 CONG. REC. 1,715–16 (Feb. 24, 1998) (statement of Rep. McCollum); 144 CONG. REC. 1,718 (Feb. 24,
1998) (statement of Rep. Buyer). 144 Cong. Rec. 1,717 (Feb. 24, 1998) (statement of Rep. Myrick). As originally
passed by the House, the amendment would have imposed substantially more severe sentences than the enacted
version: requiring 10 years of imprisonment for possession, 15 years of imprisonment for brandishing, and 20 years
of imprisonment for discharging the firearm, along with more severe penalties for subsequent convictions. H.R.
424, 105th Cong. § 1 (1998) (as passed by the House of Representatives, Feb. 24, 1998), reprinted in 144 C
ONG.
REC. 1,715 (Feb. 24, 1998). The Senate’s version contained less severe penalties (five years for possession, 10 years
27
4. Mandatory Minimum Penalties for Child Sexual Exploitation and Related Offenses
Congress also has enacted mandatory minimum penalties to combat child sexual
exploitation. When Congress outlawed the production of child pornography in 1978, it
established a mandatory minimum penalty of two years of imprisonment for repeat offenders.
165
By 1996, Congress had increased the penalties for production of child pornography to require a
mandatory minimum penalty of 10 years of imprisonment for first-time offenders, 15 years of
imprisonment for offenders with a prior conviction of a child sexual exploitation offense, and at
least 30 years of imprisonment for offenders with two such prior convictions.
166
Similarly,
Congress prescribed mandatory minimum penalties of 20 years of imprisonment when it
established offenses in 1988 for the buying or selling of children.
167
In addition, since 1978,
Congress has set mandatory minimum penalties for recidivist offenders who possess, receive,
and traffic in child pornography.
168
The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today
(PROTECT) Act of 2003
169
established new mandatory minimum penalties and increased
existing mandatory minimums for certain child sexual abuse and child pornography crimes.
Among other changes, Congress increased the mandatory minimum penalties for producing child
pornography and related conduct from 10 to 15 years of imprisonment for first-time offenders,
from 15 to 25 years of imprisonment for repeat child exploitation offenders, and from 30 to 35
years of imprisonment for offenders with more than two prior child exploitation convictions.
170
The Act further increased the mandatory minimum penalty for the buying or selling of children
for discharge, and no separate penalty for brandishing), see S. 191, 105th Cong. § 1 (as passed by Senate, Nov. 13,
1997), reprinted in 143 C
ONG. REC. S12712 (daily ed. Nov. 13, 1997), and the final amendment was the product of a
compromise between the House and Senate versions, See 144 C
ONG. REC. 25,036 (Oct. 9, 1998) (statement of Rep.
McCollum).
165
See Protection of Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95–225, § 2(a), 92 Stat. 7
(1978) (codified as amended at 18 U.S.C. § 2251).
166
See Child Pornography Prevention Act of 1996, Pub. L. No. 104–208, § 121(4), 110 Stat. 3009 (amending 18
U.S.C. § 2251(d)).
167
See Child Protection and Obscenity Enforcement Act of 1988, Pub. L. No. 100–690, § 7512(a), 102 Stat. 4181
(codified as amended at 18 U.S.C. § 2251A).
168
The Protection of Children Against Sexual Exploitation Act of 1977 established a mandatory minimum penalty
of two years of imprisonment for repeat offenders who traffic and are in receipt of child pornography. See Pub. L.
No. 95–225, § 2(a), 92 Stat. 7 (codified as amended at 18 U.S.C. § 2252). Later amendments extended these
penalties to trafficking and receipt child pornography offenders who had at least one conviction for a broad range of
child sexual exploitation offenses. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103–
322, § 160001, 108 Stat. 1796 (amending 18 U.S.C. § 2252(b)). In 1996, Congress established a mandatory
minimum penalty of at least two years of imprisonment for offenders with a prior sexual exploitation conviction
who possess child pornography. See Child Pornography Prevention Act of 1996, Pub. L. No. 104–208, § 121(5),
110 Stat. 3009 (amending 18 U.S.C. § 2252(b)(2)).
169
Pub. L. No. 108–21, 117 Stat. 650 [hereinafter PROTECT Act].
170
PROTECT Act, § 103(b)(1)(A) (amending 18 U.S.C. § 2251).
28
from 20 to 30 years of imprisonment,
171
and the mandatory minimum penalty for possession of
child pornography by a recidivist offender from two to 10 years of imprisonment.
172
Finally,
Congress established new mandatory minimum penalties for existing offenses, most notably by
requiring at least five years of imprisonment for receipt and distribution of child pornography,
173
as well as a new mandatory minimum penalty of five years of imprisonment for enticing a minor
to travel in interstate commerce for criminal sexual activity.
174
Congress viewed the PROTECT Act’s enhanced and new mandatory minimum penalties
as necessary to address child exploitation offenses, primarily by correcting what it perceived as
unduly lenient sentences for defendants who commit those crimes. The conference committee
concluded “[t]he increased mandatory minimum sentences are responsive to real problems of
excessive lenience in sentencing under existing law.”
175
The conference committee found that
mandatory minimum penalties were necessary because “courts have been disposed to grant
downward departures from the guidelines for child pornography possession offenses . . . based
on the misconception that these crimes are not serious.”
176
Senator Hatch, who introduced the
Act in the Senate, observed before final passage that “[t]he sentencing reforms will prevent
sentencing abuses in cases involving child and sexual crimes where too often we have seen
lenient sentences imposed.”
177
Three years later, in the Adam Walsh Child Protection and Safety Act of 2006,
178
which
included the Sex Offender Registration Notification Act (SORNA),
179
Congress again increased
existing mandatory minimum penalties and established new mandatory minimum penalties for
certain sex offenses. The Adam Walsh Act, among other provisions, added a new mandatory
minimum penalty of at least 15 years of imprisonment for sex trafficking,
180
increased the
mandatory minimum penalty from five to 10 years of imprisonment for enticing a minor to
171
Id. § 103(b)(1)(B) (amending 18 U.S.C. § 2251A(a), (b)).
172
Id. § 103(b)(1)(D) (amending 18 U.S.C. § 2252(b)(2)).
173
Id. § 103(b)(1)(C) (amending 18 U.S.C. § 2252(b)(1); id. § 103(b)(E) (amending 18 U.S.C. § 2252A(b)(1)).
174
Id. § 103(b)(2)(A) (amending 18 U.S.C. § 2422(b)).
175
H.R. CONF. REP. NO. 66, at 43 (2003), reprinted in 2003 U.S.C.C.A.N. 683, 685.
176
Id.
177
149 CONG. REC. 9,387 (Apr. 10, 2003) (statement of Sen. Hatch). By contrast, Senator Feinstein spoke against
the extensive use of mandatory minimum penalties in the final version: “I am disappointed that Congress is poised,
once again, to demonstrate that we are ‘tough on crime’ by enacting new mandatory minimum sentences.” Id. at
9,376–77 (statement of Sen. Feinstein). She argued that the final bill expanded “the mandatory sentencing scheme
that is gradually replacing the guidelines system.” Id.
178
Pub. L. No. 109–248, 120 Stat. 587 [hereinafter the Adam Walsh Act].
179
Pub. L. No. 109–248, 120 Stat. 587, 590 [hereinafter SORNA].
180
Id. § 208 (amending 18 U.S.C. § 1591(b)(1)).
29
engage in criminal activity,
181
and established a mandatory minimum penalty of at least 20 years
of imprisonment for engaging in a child exploitation enterprise.
182
SORNA created new offenses
relating to failing to register as a sex offender, for which Congress provided mandatory
minimum penalties triggered by specific aggravating circumstances. Those mandatory minimum
penalties apply to offenders who, having failed to register as a sex offender, commit a crime of
violence (consecutive mandatory minimum penalty of five years of imprisonment)
183
or certain
federal felonies involving a child (consecutive mandatory minimum penalty of 10 years of
imprisonment).
184
5. Mandatory Minimum Penalties for Identity Theft Offenses
Congress enacted the Identity Theft Penalty Enhancement Act in 2004, which established
new mandatory minimum penalties for identity theft offenses.
185
The Act’s key provision
requires imprisonment for two years for aggravated identity theft, defined as knowingly
transferring, possessing, or using another person’s means of identification during and in relation
to enumerated identity theft offenses.
186
The Act further requires the sentencing court to impose
the penalty consecutively to any sentence imposed for the underlying identity theft offense.
187
Congress viewed these enhanced penalties as necessary to correct lenient sentences imposed for
identity theft offenses. As the House Judiciary Committee reported, “many perpetrators of
identity theft receive little or no prison time,” which “has become a tacit encouragement to those
arrested to pursue such crimes.”
188
G. RECONSIDERATION OF CERTAIN MANDATORY MINIMUM PENALTIES: THE FAIR
SENTENCING ACT OF 2010
Congress repealed and amended mandatory minimum penalties for crack cocaine
offenses in the Fair Sentencing Act of 2010.
189
These mandatory minimum penalties had drawn
widespread criticism since their enactment in the 1980s. Beginning in 1995, for example, the
181
Id. § 203 (amending 18 U.S.C. § 2422(b)).
182
Id. § 701 (codified at 18 U.S.C. §2252A(g)).
183
Id. § 141 (codified at 18 U.S.C. §2250(c)).
184
Id. § 702 (codified at 18 U.S.C. § 2260A).
185
Pub. L. No. 108–275, 118 Stat. 831 (2004).
186
Id. § 2(a) (codified at 18 U.S.C. § 1028A(a)).
187
Id. (codified at 18 U.S.C. § 1028A(b)(2)).
188
H.R. REP. NO. 108–528, at 5 (2004), reprinted in 2004 U.S.C.C.A.N. 779, 781.
189
Pub. L. No. 111–220, 124 Stat. 2372.
30
Commission submitted four reports to Congress calling for changes to federal cocaine sentencing
policy.
190
The Act altered the mandatory minimum penalties established by the 1986 and 1988 Acts
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.
191
There was broad bipartisan support for these changes among members of Congress.
192
Members
cited various reasons for supporting the Act, including lack of evidentiary support for the 100-to-
1 ratio,
193
racial disparities produced by the existing penalties,
194
and the unfairness of the
existing mandatory penalties.
195
Demonstrating an increased focus on the offender, the Act also
directed the Commission to provide for higher guideline sentences for all drug offenders based
on the presence of specified aggravating factors, such as bribing a law enforcement official to
facilitate the offense, maintaining an establishment for manufacturing or distributing controlled
substances, or obstructing justice while holding an aggravating role in the offense. The Act
190
See U.S. SENT’G COMM’N, SPECIAL REPORT TO THE CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY
(1995); U.S. SENT’G COMM’N, SPECIAL REPORT TO CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY
(1997); U.S. SENT’G COMM’N, REPORT TO THE CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY (2002);
U.S.
SENT’G COMM’N, REPORT TO CONGRESS: FEDERAL COCAINE SENTENCING POLICY (2007).
191
See Pub. L. No. 111–220, § 2, 124 Stat. 2372 (amending 21 U.S.C. §§ 841, 844).
192
The ranking member of the House Judiciary Committee, however, spoke against the Act in floor debates. See
156 C
ONG. REC. H6197 (daily ed. July 28, 2010) (statement of Rep. Lamar Smith) (“Now Congress is considering
legislation to wind down the fight against drug addiction and drug-related violence. Reducing the penalties for
crack cocaine could expose our neighborhoods to the same violence and addiction that caused Congress to act in the
first place.”).
193
See 155 Cong. Rec. S10493 (daily ed. Oct. 15, 2009) (statement of Sen. Specter) (explaining that intervening
research has undermined Congress’s original belief “that crack was uniquely addictive and was associated with
greater levels of violence than powder cocaine”); 156 C
ONG. REC. H6202 (daily ed. July 28, 2010) (statement of
Rep. Lungren) (“We didn’t really have an evidentiary basis [for the 100-to-1 ratio], but that’s what we did, thinking
we were doing the right thing at the time.”); 156 C
ONG. REC. H6199 (daily ed. July 28, 2010) (statement of Rep.
Jackson Lee) (“This disparity made no sense when it was initially enacted and makes absolutely no sense today . . .
.”).
194
See, e.g., 156 CONG. REC. S1680–81 (daily ed. Mar. 17, 2010) (statement of Sen. Durbin) (explaining that the
“net result” of the crack-powder disparity “was that the heavy sentencing we enacted years ago took its toll
primarily in the African-American community . . . and a belief in the African-American community that it was
fundamentally unfair”); 155 C
ONG. REC. S10493 (daily ed. Oct. 15, 2009) (statement of Sen. Specter) (“I do not
believe that the 1986 Act was intended to have a disparate impact on minorities but the reality is that it does.”).
195
See 156 CONG. REC. H6197 (July 28, 2010) (statement of Rep. Scott) (“The legislation does not fully eliminate
the 100-to-1 disparity in sentencing for crack and powder, but it does make good progress in addressing what is
widely recognized as unfair treatment of like offenders based simply on the form of cocaine they possessed.”); 155
C
ONG. REC. S10492 (daily ed. Oct. 15, 2009) (statement of Sen. Sessions) (“I will not favor alterations that
massively undercut the sentencing we have in place, but I definitely believe that the current system is not fair and
that we are not able to defend the sentences that are required to be imposed under the law today.”).
31
further directed the Commission to provide for lower guideline sentences for certain offenders
who receive a guideline adjustment for minimum role.
196
H. MECHANISMS FOR RELIEF FROM MANDATORY MINIMUM PENALTIES
1. Introduction
For almost a century, mechanisms have been in place permitting a court to impose a
sentence lower than a mandatory minimum penalty in certain cases. This section discusses the
historical development of such “relief” mechanisms.
In the early 20
th
century, district courts avoided imposing a term of imprisonment, even
for offenses carrying a mandatory minimum penalty, by suspending the sentence or by placing
the defendant under the supervision of a state probation officer.
197
There were no federal statutes
governing probation at that time. In 1916, however, the Supreme Court held that district courts
lacked the authority to suspend sentences
198
and further observed that federal courts were
without power to offer probation in the absence of congressional authorization.
199
In 1925, Congress responded to the Supreme Court by passing the Federal Probation
Act,
200
which expressly authorized district courts to suspend sentences and impose probation in
lieu of prison terms.
201
Under the Act, a district court could avoid imposing a mandatory
minimum penalty, at least where the statute in question did not expressly preclude probation or a
suspended sentence.
202
Congress repealed this relief mechanism as part of the broader reform of
sentencing policy provided by the Sentencing Reform Act.
203
196
See Pub. L. No. 111–220, § 6, 7, 124 Stat. 2372, 2373-74.
197
See United States v. Murray, 275 U.S. 347, 354 (1928) (prior to 1916, “‘the District Courts exercised a form of
probation either by suspending sentence or by placing the defendants under state probation officers or volunteers’”
(quoting H.R.
REP. NO. 68-1377, at 1 (1925))).
198
See Ex Parte United States, 242 U.S. 27, 37 (1916) (the Killits case).
199
See id. at 52; Murray, 275 U.S. at 354.
200
Act of Mar. 4, 1925, ch. 521, 43 Stat. 1259.
201
18 U.S.C. § 3651 (repealed in 1987), provided in part: “Upon entering a judgment of conviction of any offense
not punishable by death or life imprisonment . . . any court having jurisdiction to try offenses against the United
States, when satisfied that the ends of justice and the best interest of the public as well as the defendant will be
served thereby,” may suspend the imposition or execution of sentence and place the defendant “on probation for
such period and upon such terms and conditions as the court deems best.”
202
See id.; Rodriguez v. United States, 480 U.S. 522, 524 (1987) (statute at issue “is no different from many other
federal statutes requiring minimum sentences, which have uniformly been held to be subject to the suspension
authority of § 3651”).
203
The enactment of the Sentencing Reform Act is discussed in Chapter 3, infra.
32
Nevertheless, Congress has provided other mechanisms by which a district court may
impose a term of imprisonment lower than a mandatory minimum penalty prescribed by statute.
These mechanisms are discussed below.
2. Substantial Assistance to the Authorities
Two related provisions allow a district court to impose a term of imprisonment lower
than a mandatory minimum penalty in cases where a defendant provides substantial assistance in
the investigation or prosecution of another person: Federal Rule of Criminal Procedure 35(b)
and 18 U.S.C. § 3553(e). At the time they went into effect, section 3553(e) and Rule 35(b) were
essentially identical, except that section 3553(e) applied at sentencing, and Rule 35(b) applied
post-sentencing.
204
First, Federal Rule of Criminal Procedure 35(b) allows a court, upon the government’s
motion, to reduce a sentence after it is imposed if the defendant provides substantial assistance in
investigating or prosecuting another person. Prior to the enactment of the Sentencing Reform
Act, Rule 35(b) allowed the court to reduce a sentence for any reason within 120 days after the
sentence was imposed or probation was revoked,
205
and the court had authority to change a
sentence from a term of incarceration to probation.
206
The time limit was viewed as
jurisdictional; once the time limit expired, the court was without jurisdiction to consider a
reduction.
207
The Sentencing Reform Act amended Rule 35(b) and made three significant changes.
208
First, the government was required to make a motion seeking a reduction, which deprived the
court of authority to reduce a sentence on its own. Second, the time period was expanded from
120 days to one year. Third, the reduction was limited to reflect the defendant’s “substantial
assistance in the investigation or prosecution of another person who has committed an offense, in
204
Although these provisions provide relief even from a statutory minimum sentence based on a defendant’s
“substantial assistance,” the legislative history does not articulate the rationale for the substantial assistance
framework. See United States v. Revis, 22 F. Supp. 2d 1242, 1259 (N.D. Okl. 1998) (citing G. Adam Schweikert,
III, Note, Third Party Cooperation: A Welcome Addition to Substantial Assistance Departure Jurisprudence, 30
C
ONN. L. REV. 1445, 1450, n. 29 (1998)), United States v. Severich, 676 F. Supp. 1209, 1212 (S.D. Fla. 1988).
205
The 1983 version of Rule 35(b) provided that the court, “may reduce a sentence within 120 days after the
sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon
affirmance of the judgment or dismissal of appeal. . . . Changing a sentence from a sentence of incarceration to a
grant of probation shall constitute a permissible reduction of a sentence under this subdivision.” F
ED. R. CRIM. P.
35(b) (1983).
206
Id.
207
See United States v. Hayes, 983 F.2d 78, 80 (7th Cir 1992) (citing United States v. Kajevic, 711 F.2d 767 (7th
Cir. 1983); Gaetner v. United States, 763 F.2d 787 (7th Cir. 1985)).
208
“The court, on motion of the government, may within one year after the imposition of the sentence, lower a
sentence to reflect a defendant’s subsequent, substantial assistance in the investigation or prosecution of another
person who has committed an offense, in accordance with the guidelines and policy statements issued by the
Sentencing Commission pursuant to section 994 of title 28, United States Code.” F
ED. R. CRIM. P. 35(b) (1986).
33
accordance with the guidelines and policy statements issues by the Sentencing Commission.”
209
Thus, only the defendant’s “substantial assistance” could be considered when granting or
determining the size of a Rule 35 reduction. In addition, before the Act became effective,
Congress added language to Rule 35(b) authorizing the court to reduce a sentence lower than the
statutory minimum.
210
Rule 35(b) was further amended in 1991 and 2002 to allow consideration
of substantial assistance provided beyond one year in certain circumstances.
211
Second, 18 U.S.C. § 3553(e), which was enacted two years after the Sentencing Reform
Act as part of the Anti-Drug Abuse Act of 1986,
212
grants a court limited authority to impose a
sentence below a mandatory minimum penalty at the time of sentencing. Specifically, the
section provides that “[u]pon motion of the Government, the court shall have the authority to
impose a sentence below a level established by statute as a minimum sentence so as to reflect a
defendant’s substantial assistance in the investigation or prosecution of another person who has
committed an offense.”
213
Section 3553(e) further requires such a sentence to “be imposed in
accordance with the guidelines and policy statements issued by the Sentencing Commission
pursuant to section 994 of title 28, United States Code.”
As directed by Congress, the
Commission incorporated this statutory mechanism for relief from mandatory minimum
sentences into the guidelines at USSG§5K1.1 (Substantial Assistance to Authorities (Policy
Statement)), which provides that the court may depart from the guidelines “[u]pon motion of the
government stating that the defendant has provided substantial assistance in the investigation or
prosecution of another person who has committed an offense.”
214
209
Id.; see also United States v. Poland, 562 F.3d 35 (1st Cir. 2009).
210
See FED. R. CRIM. P. 35(b) (1986) (“When acting under Rule 35(b), the court may reduce the sentence to a level
below the minimum sentence established by statute.”).
211
Federal Rule of Criminal Procedure 35(b)(2) provides:
Upon the government’s motion made more than one year after sentencing, the court may reduce a
sentence if the substantial assistance involved:
(A) information not known to the defendant until one year or more after sentencing;
(B) information provided by the defendant to the government within one year of sentencing, but
which did not become useful to the government until more than one year after sentencing; or
(C) information the usefulness of which could not reasonably have been anticipated by the
defendant until more than one year after sentencing and which was promptly provided to the
government after its usefulness was reasonable apparent to the defendant.
212
See Pub. L. No. 99–570, 100 Stat. 3207 (1986). A large piece of legislation, the Anti-Drug Abuse Act of 1986
contained twelve new acts, amended three others, and addressed numerous other topics.
213
18 U.S.C. § 3553(e). For additional discussion of section 3553(e) and relevant case law, see infra Appendix
E(A)(2), (B)(3) of this Report.
214
See 28 U.S.C. § 994(n) (“The Commission shall assure that the guidelines reflect the general appropriateness of
imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established
by statute as a minimum sentence, to take into account a defendant’s substantial assistance in the investigation or
prosecution of another person who has committed an offense.”).
34
3. The Safety Valve
Following the Commission’s 1991 report on mandatory minimum penalties,
215
the
Commission worked directly with Congress to enact new legislation that would address the
impact of mandatory minimum penalties on low-level drug-trafficking offenders. In July 1993,
Judge William W. Wilkins, Jr., then-Chair of the Commission, testified at a hearing before the
House Subcommittee on Crime and the Criminal Justice. Judge Wilkins discussed the
drawbacks of mandatory minimum penalties and their incompatibility with the guidelines system
as outlined in the report, and offered a legislative proposal that would “bring[] about greater
coordination between mandatory minimums and the sentencing guidelines.”
216
Specifically, he
proposed legislation for drug offenses that would require the Commission to use mandatory
minimum penalties only in establishing base offense levels, and would otherwise permit the
guidelines through downward adjustments or departures to provide for sentences below the
mandatory minimum penalties.
217
Although Congress did not adopt the proposal, his testimony
encouraged other legislation that resulted in a more limited relief mechanism.
218
In October 1993, the Senate considered a new bill, the Sentencing Improvement Act of
1993, the sole purpose of which was to enact a statutory “safety valve.” As proposed, the safety
valve would have permitted offenders convicted of certain drug offenses to avoid mandatory
minimum sentences if the defendant had no more than one criminal history point under the
guidelines, did not cause or threaten to cause death or serious injury during the offense, and did
not hold a leadership role in the offense.
219
When introducing the bill, Senator Kennedy
explained that he “would prefer more comprehensive reform of mandatory sentencing laws,” but
that the proposal was a “small but important step in the effort to recapture the goals of sentencing
reform.”
220
Similarly, Senator Simpson argued that the proposal would “correct” the injustice of
“nonviolent first-time offenders . . . being sentenced to terms under the Federal system that, as a
practical reality, even far exceed the terms served by some of the most violent criminals
punished under other laws and guidelines.”
221
215
See 1991 COMMISSION REPORT.
216
See Federal Mandatory Minimum Sentencing: Hearing Before the Subcomm. on Crime and Criminal Justice of
the H. Comm. on the Judiciary, 103rd Cong. (July 28, 1993) (statement of William W. Wilkins, Jr., Chairman,
United States Sentencing Commission), reprinted in 6 F
ED. SENT’G REP. 67 (1993).
217
Id.
218
See 140 CONG. REC. S14,716 (daily ed. Oct. 7, 1994) (statement of Sen. Kennedy) (describing the enacted safety
valve as “a version of the Wilkins proposal”).
219
Sentencing Improvement Act of 1993, S. 1596, 103d Cong. (1993), reprinted in 139 CONG. REC. 26,483–85
(Oct. 27, 1993).
220
139 CONG. REC. 26,484–85 (Oct. 27, 1993) (statement of Sen. Kennedy).
221
139 CONG. REC. 26,845 (Oct. 27, 1993) (statement of Sen. Simpson).
35
Shortly after its introduction in the Senate, the proposed Sentencing Improvement Act of
1993 was incorporated into a proposed crime bill, the Violent Crime Control and Law
Enforcement Act.
222
Although the Senate rejected an amendment that would have removed the
proposed safety valve provision altogether, it accepted an amendment by Senator Hatch that
significantly narrowed its application to offenders with no criminal history points, who had never
been imprisoned for a criminal conviction, whose offense did not result in death or serious bodily
injury, who did not carry or possess a firearm or dangerous weapon during the offense, who
played no leadership role, and who did not use or attempt to use physical force against another
person in the course of the offense.
223
Senator Hatch explained that his safety valve proposal
was a “narrow reform needed to return a small degree of discretion to the courts for a small
percentage of nonviolent drug cases.”
224
The Senate passed the narrower safety valve provision as an amendment to a version of
the Violent Crime Control and Law Enforcement Act already passed by the House, which
contained no safety valve.
225
Before conference, the House amended its bill to include a broader
safety valve than passed by the Senate, by permitting up to one criminal history point and
allowing eligibility regardless of whether the defendant had previously been incarcerated. The
conference committee ultimately adopted the House’s broader version of the safety valve.
226
The
House and Senate passed the bill as recommended by the conference committee,
227
creating the
safety valve as codified at 18 U.S.C. § 3553(f).
228
The enacted safety valve provision, entitled “Limitation on Applicability of Mandatory
Minimum Penalties in Certain Cases,” provided that judges shall impose a sentence without
regard to the statutory mandatory minimum penalty for offenses under section 401, 404, and 406
of the Controlled Substances Act (21 U.S.C. §§ 841 (possession with intent to distribute), 844
222
See Violent Crime Control and Law Enforcement Act of 1993, S. 1607, 103d Cong. § 2404, (1993) (as
introduced Nov. 1, 1993).
223
Amend. 1131 to S. 1607 (as modified Nov. 8, 1993, amending Amend. 1130 to S. 1607), reprinted in 139 CONG.
REC. 27,839-40, 27847-48, 27914-15 (Nov. 8, 1993).
224
139 Cong. Rec. 27,842 (Nov. 8, 1993) (statement of Sen. Hatch). Senator Hatch stated that by returning this
discretion to the courts, his proposal would reduce disparities in the application of mandatory minimum penalties,
particularly disparities resulting from low-level nonviolent drug offenders’ inability to obtain relief from the
mandatory minimum penalty for rendering substantial assistance because they “have no information to provide the
authorities.” Id.
225
See 139 CONG. REC. S16301 (daily ed. Nov. 19, 1993); Violent Crime Control and Law Enforcement Act of
1993, H.R. 3355, 103d Cong., §2404 (as passed by Senate, Nov. 19, 1993), reprinted in 139 C
ONG. REC. 32,286-394
(Nov. 24, 1993).
226
See H.R. REP. NO. 103–711, at 197-98 (1994); 140 CONG. REC. 21,568-69 (Aug. 11, 1994); 140 CONG. REC.
23,617-18 (Aug. 21, 1994).
227
140 CONG. REC. 26,618 (Aug. 21, 1994); 140 CONG. REC. 24,114-15 (Aug. 25, 1994).
228
Violent Crime Control and Law Enforcement Act of 1994, § 80001, Pub. L. No. 103–322, 108 Stat. 1796
(codified at 18 U.S.C. § 3553(f)).
36
(possession), 846 (conspiracy)) or section 1010 or 1013 of the Controlled Substances Import and
Export Act (21 U.S.C. §§ 961 (conspiracy), 963 (importation)) if the following factors were met:
(1) The defendant does not have more than one 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 by the sentencing guidelines and was
not engaged in a continuing criminal enterprise, as defined in § 848; and
(5) No 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 or 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 not complied with this
requirement.
The Commission subsequently incorporated the statutory safety valve provision into the
guidelines at USSG §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in
Certain Cases), which provides relief from the applicable mandatory minimum penalty for
offenders who meet certain criteria as well as a downward adjustment to their guidelines offense
level.
229
Further discussion of the interaction of mandatory minimum penalties and the sentencing
guidelines follows in Chapter 3.
229
See USSG App. C amend. 509 (effective Sept. 23, 1994). Defendants sentenced under USSG §2D1.1 and who
meet the safety valve subdivision criteria set forth at §5C1.2 receive a two-level downward adjustment to their base
offense levels, even if they were not convicted of an offense carrying a mandatory minimum penalty. See USSG
§2D1.1(b)(16). For additional discussion of the safety valve and relevant case law, see infra Appendix E(B)(3) to
this Report.
