How did it come about that mandatory minimum sentences for drug offenses
were passed in 1986?|
In 1986, the Democrats in Congress saw a political opportunity to outflank
Republicans by "getting tough on drugs" after basketball star Len Bias died of
a cocaine overdose. In the 1984 election the Republicans had successfully
accused Democrats of being soft on crime. The most important Democratic
political leader, House Speaker "Tip" O'Neill, was from Boston, MA. The
Boston Celtics had signed Bias. During the July 4 congressional recess,
O'Neill's constituents were so consumed with anger and dismay about Bias'
death, O'Neill realized how powerful an anti-drug campaign would be.
O'Neill knew that for Democrats to take credit for an anti-drug program in
November elections, the bill had to get out of both Houses of Congress by early
October. That required action on the House floor by early September, which
meant that committees had to finish their work before the August recess. Since
the idea was born in early July, the law-writing committees had less than a
month to develop the ideas, to write the bills to carry out those ideas, and to
get comments from the relevant government agencies and the public at large.
One idea was considered for the first time by the House Judiciary Committee
four days before the recess began. It had tremendous political appeal as "tough
on drugs." This was the creation of mandatory minimum sentences in drug cases.
It was a type of penalty that had been removed from federal law in 1970 after
extensive and careful consideration. But in 1986, no hearings were held on this idea. No
experts on the relevant issues, no judges, no one from the Bureau of Prisons,
or from any other office in the government, provided advice on the idea before
it was rushed through the committee and into law. Only a few comments were
received on an informal basis. After bouncing back and forth between the
Democratic controlled House and the Republican controlled Senate as each party
jockeyed for poitical advantage, The Anti Drug Abuse Act of 1986 finally passed
both houses a few weeks before the November elections.
What are mandatory minimum sentences?
A mandatory minimum sentence is a minimum number of years, typically 5- or
10-years in prison, that must be served when a person is convicted of a
particular crime. Mandatory minimum sentences for drug crimes are based on the
amount of drugs involved. Different drugs have different set quantities that
trigger a specific minimum sentence.
|Type of drug
||Five Year Sentence Without Parole
||Ten Year Sentence Without Parole|
||100 plants/100 kilos
||1000 plants/1000 kilos|
The idea behind mandatory minimum sentences was to encourage the government to
prosecute high level drug offenders. However, the amounts that can trigger a
substantial sentence are often lower than those a high level trafficker would
be dealing in. For example, a drug offender could receive five years in federal
prison for selling as little as five grams of crack cocaine. Five grams might
be only 25 doses of crack, depending on purity, worth a few hundred dollars.
This is not what high level traffickers are involved in. Most drug cases
involve low level offenders. In a report issued in 1995, the U.S. Sentencing
Commission found that only 11% of federal drug trafficking defendants
were major traffickers. More than half were low level offenders.
The mandatory minimum sentences were criticized by the U.S. Sentencing
Commission as early as 1991. In this report the commission found that all
defense lawyers, and nearly half of prosecutors queried had serious problems
with mandatory minimum sentences. Most of the judges pronounced them
"manifestly unjust." The 1991 sentencing report particularly criticized the
transfer of power in courts from judges - who are supposed to be impartial - to
prosecutors, who are not. In response to some of the criticism in 1994 Congress
enacted a "safety-valve" provision permitting relief from mandatory minimums
for certain non-violent, first-time drug offenders.
What is "substantial assistance"?
A judge in a case involving a charge that carries a mandatory minumum sentence
cannot impose a sentence below that minimum, with one exception, and only if
requested by the Justice Department. The sole exception for a mandatory minimum
sentence exists when the government says that a drug offender has given
"substantial assistance" to the government the prosecution of another drug
offender. One of the common ways that the Justice Department gets testimony in
drug cases is to offer to other drug offenders the possibility of more lenient
sentence if they testify against another drug offender. Section 5K1.1 of the
U.S. Sentencing Guidelines allows a judge to grant a lower sentence to a
defendant whom the prosecutor says has given substantial assistance. Over the
last 5 years nearly a third of the people sentenced in drug trafficking cases
in the federal system had their sentences reduced under the substantial
assistance provisions because they informed on other people.
||Substantial Assistance Cases|
||Percent of Total
||Average Sentence (months)
||Average Departure (months)
||Average Percent Departure
|Drug Trafficking, 10+ Year Minimum
|Source: U.S. Sentencing Commission|
How does conspiracy law work?
In 1988 Congress passed another, pre-election Anti-Drug Law. One of the
provisions was urged by the Department of Justice to simply close a little
loophole. The change was to apply the mandatory sentences of 1986, intended for
high level traffickers, to anyone who was a member of a drug trafficking
conspiracy. The effect of this amendment was to make everyone in a conspiracy
liable for every act of the conspiracy. If a defendant is simply the doorman at
a crack house, he is liable for all the crack ever sold from that crack house
-- indeed, he is liable for all of the crack ever sold by the organization that
runs the crack house. After the conspiracy amendment was enacted the prison
population swelled. Within 6 years, the number of drug cases in federal prisons
increased by 300%. From 1986 to 1998 it was up by 450%.
Source: Federal Bureau of Prisons Quick Facts
One result of the conspiracy amendment is that low-level traffickers can get
very long sentences. They can also be the victims of lies by codefendants who
have figured out how to cut a deal and manipulate the sentencing laws to their
advantage. High-level traffickers often get lower sentences than Congress
anticipated. The top organizer is in a position, for example, to identify and
testify against the people who launder money for him at a bank, corrupt police
officers, airport or shipping personnel, and others. When a top organizer faces
a very long mandatory or Guideline sentence, he is able to offer "substantial
assistance" and get a low sentence. Examples of such deals were the much
reduced sentences obtained by high level cocaine traffickers who testified
against former Panamanian strongman, General Manuel Noriega, when the U.S.
government prosecuted him for cocaine trafficking.
What are the Sentencing Guidelines, and how do they relate to mandatory
For many years in the 1960s, 70s, and 80s, many people who looked at the
justice system were concerned that different federal judges gave very different
sentences to people who committed very similar crimes. This might be because
the judges were in different parts of the country, or because they had very
different theories about just punishment. In some cases, the differences may
have been a result of racial prejudice or favoritism.
After many years of debate, Congress in 1984 created a commission to create a
system of sentencing that would be applied the same way by federal judges
around the country. Crimes would be analyzed, and depending upon specified
criteria (for example, the defendant carried a gun during a crime, but didn't
fire it at any one), a guideline for an appropriate sentence would be created.
Judges would have to determine the facts of the case, and the facts about the
offender, including the offender's history of prior offenses, and find the
appropriate guideline range which would set forth a narrow range of months from
which a sentence may be imposed. If a judge finds a reason to depart from the
guideline, he or she may do so, but the reason must be put on the record.
Sentences that depart from the guidelines can be appealed.
In drug cases, Sentencing Guidelines are tied to the quantity of drugs involved
in an offense. In a series of steps, the more drugs involved, the longer the
sentence. For the principal drugs of abuse -- heroin, marijuana, cocaine, LSD,
methamphetamine, PCP -- the quantity steps of the guidelines build upon the
various quantity triggers of the mandatory minimum sentences. For example, 100
kilograms of marijuana in a drug offense triggers a mandatory minimum sentence
of 5 years, and 1000 pounds triggers a mandatory sentence of 10 years.
Therefore, smuggling 700 pounds of marijuana triggers a Guideline sentence of
btween 78 and 97 months but a mandatory minimum sentence of 5 years. The judge
could depart below the 78 months, but could not go below 5 years. Only if the
prosecution says the defendant offered "substantial assistance" in the
prosecution of another offender could the judge sentence the defendant for less
than 5 years.
How can a low level drug trafficker avoid a long, mandatory minimum
A drug offender while in jail awaiting trial may learn the names of other
persons awaiting trial. He may learn all about substantial assistance. He may
learn that he can easily make up a story that will get him out of prison fairly
soon if his story provides "substantial assistance" in the prosecution of
someone else as a "high level trafficker." The quantity of drugs in a drug case
need not be shown by physical evidence. You don't need 500 kilograms of cocaine
powder to establish 500 kilograms for sentencing purposes. The simple testimony
of a witness, usually offering "substantial assistance," is enough to "prove"
that a quantity of drugs was sold. A clever informant can prove that someone
else is a "high level trafficker" without too much trouble.
What are forfeiture laws?
Since 1970, the federal drug laws have allowed the government to seize property
that is used in drug crimes or that is the profit of drug crimes. When the
government takes ownership of this seized property, it is called forfeiture. On
their face, these laws make sense. People who own and use property like airplanes and
ships to smuggle drugs to the U.S. deserve to have them taken away.
These laws can be applied to property even when the owners are not accused of
drug trafficking, even when the owners had no knowledge that the property was
being used in drug trafficking. These laws can be applied even when the owner
of the property takes steps to prevent the property from being used in drug
trafficking, but has been unsuccessful. The property owner is required to bring
a lawsuit to get their property back. He or she must post a cash bond in order
to bring the suit. If the property owner has no cash or no more valuable
assets, they are not able to get their property back. If the property owner
cannot afford a lawyer to bring the lawsuit, they can't get their property
back. The laws require the lawsuit be filed within 10 days of the seizure of
the property. If you wait more than 10 days, for example, because you are
trying to figure out if you need a lawyer or where you can find such a lawyer,
then you lose the property, even if you are completely innocent.
The proceeds of forfeited property go to law enforcement agencies that make the
seizures, not to the general federal treasury. This creates a powerful
incentive to seize and forfeit property, even in unmerited cases.
The forfeiture laws are so offensive to justice that even the staunchest
advocates of tough on crime policies like the conservative chairman of the
House Judiciary Committee, Henry Hyde of Illinois, have called out for their
|Type of Asset
||Number of seizures
|Other financial instruments
|Source: Sourcebook of Criminal Justice Statistics 1997|