Federal Drug Offenses: Mandatory Minimums & Harsh Enhancements

Over the past decade there had been a laudably bi-partisan effort to reduce the exploding prison population, particularly for drug offenders. But that era of leniency seems to have come to an abrupt halt.

Tough on crime statutes, passed by Congress, have long been on the books. However, in the recent past, Federal Prosecutors, using some discretion, occasionally side-stepped such harsh laws, particularly during the Obama years.

But all that has now changed. Attorney General Jeff Sessions, last May, explicitly rescinded Obama-era policy. In a sweeping department-wide memorandum, Mr. Sessions, signaling a sharp turn-about, instructed federal prosecutors across the nation to now indict the most serious charges and to seek the longest sentences : “By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.”

So what, exactly, is a mandatory minimum sentence? It is, first, almost always the product of Congress, not the courts. Second, the congressional legislation prescribes in clear terms fixed minimum amounts of prison time, depending on the quantity of drugs, the type of drugs, prior history of the offender, and other factors.

Third, mandatory minimum statutes effectively takes out of the hands of judges the ability to craft a sentence, to grant leniency. Rather, mandatory minimum sentencing statutes arguably place such power to into the hands of prosecutors alone.

Common Federal Mandatory Minimum Sentences

For example, according to our statutes, 100 kilograms of marijuana, about 220 pounds, under federal drug trafficking mandatory minimum law comes with a mandatory minimum five yearprison sentence. See 21 USC § 841(B)(1)(B)(vii). The same is true for 100 grams of heroin (about 3.5 ounces); 500 grams of cocaine (a little over a pound), or 28 grams (less than an ounce) of “crack” cocaine Similarly 50 grams of crystal meth, about 1.75 ounces, will also get the same mandatory minimum five year sentence. See 21 USC § 841(B)(1)(B)(viii).

It gets much worse as the quantity increases. For example, one thousand kilograms of marijuana, about 2,200 pounds—a metric ton—comes with a mandatory minimum ten year minimum sentence. See 21 USC § 841(B)(1)(A)(vii). The same is true for one kilogram (about 2.2 pounds) of heroin; five kilograms (about 11 pounds)of cocaine, and 50 grams, about 1.7 pounds of crystal meth. See 21 USC § 841(B)(1)(A)(viii).

Common Enhancements

However, in addition, there are some draconian enhancements which could double the sentence. For example, 21 USC § 841(b)(1)(A) provides that “If any person commits” a drug trafficking violation for which a ten year mandatory minimum sentence, described above, would be imposed, “after a prior conviction for a drug trafficking offense,” that person is subjected to a mandatory minimum penalty of 20 years.

In the past, prosecutors would have, arguably, more discretion to seek or ameliorate these harsh mandatory minimum penalties. But since the Sessions Memo on the subject, it seems likely that prosecutors will again seek such sentences.

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Michael Harwin

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