6.5. Mandatory Minimums and Sentencing Enhancements

Mandatory Minimum Sentences

Legislative enactments, ballot measures, initiatives, and referendums have resulted in mandatory minimum sentencing schemes, in which offenders who commit certain crimes must be sentenced to prison terms for minimum periods. Mandatory minimum sentences take precedence over, but do not completely replace, whatever other statutory or administrative sentencing guidelines may be in existence. It is possible for a judge to impose a sentence that exceeds the mandatory minimum, following their judgement that an offender warrants a particularly harsh guideline sentence due to their criminal history or the brutality of their crime; however, judges may not impose a sentence lower than the mandatory minimum.

Mandatory minimum sentences are a type of determinate sentence. At the state level, most mandatory minimum sentences are attached to violent offenses or offenses involving the use of firearms. Federal law also mandates minimum prison terms for certain drug crimes prosecuted in federal courts. For example, a person charged with possession with the intent to distribute more than five kilograms of cocaine – or 0.28 kilograms of crack cocaine – is subject to a mandatory minimum sentence of ten years in prison. See, 21 U.S.C.A. §841 (b) (1)(A). Indeed, the severe mandatory minimums – and unjustified, racialized disparities – for federal drug offenses has driven a growing outcry against mandatory minimum sentencing schemes, which have not been shown to reduce sentencing disparities or offender recidivism. (In fact, studies have shown that certain mandatory minimum laws have increased racial disparities in imprisonment, particularly the imprisonment of Black drug offenders – read an excellent undergraduate review here.)

Many parties, across the political spectrum, agree that these attempts to limit judicial discretion may have gone too far. Judges must impose mandatory minimum sentences regardless of any compelling mitigating facts that warrant a lesser sentence, even when victims fervently request leniency for the defendant. Sentencing discretion resting with a neutral judge has been replaced by charging discretion resting with the prosecutor. Prosecutors, in filing certain charges that carry mandatory minimum sentences, can effectively compel negotiated pleas.  On December 18, 2018, a bi-partisan bill for criminal justice reform called the First Step Act passed the U.S. Senate with an 87-12 vote. Ultimately, this law – which makes retroactive changes to mandatory minimum sentences passed in 2010, has resulted in a 13% decline in the federal prison population.

Other Mandatory Sentences–Penalty Enhancements and Truth-in-Sentencing Laws

Legislatures have also exercised their authority over sentencing by passing laws that enhance criminal penalties for crimes against certain victims (ex. crimes committed with weapons, or for hate crimes.) For example, Congress passed the Violent Crime Control and Law Enforcement Act in 1994, which included several provisions for enhanced penalties for drug trafficking in prisons and drug-free zones, and illegal drug use in federal prisons. States have passed both gun crime enhancements and hate crime enhancements.

The 1994 law also provided funding incentives for states that adopted “truth-in-sentencing” laws, or laws that require inmates to serve at least 85% of their given sentence before obtaining release. By 1998, 40 states had passed such laws, resulting in not only dramatically longer sentences for some offenders, but an increasing rate of prison admission in those states.

Concurrent and Consecutive Sentences

Frequently, judges sentence defendants for multiple crimes and multiple cases at the same sentencing hearing. Judges have the option of running terms of incarceration either concurrently (at the same time) or consecutively (back-to-back). States vary as to whether the default approach on multiple sentences is consecutive sentences or concurrent sentences. The Supreme Court has held that the decision to impose concurrent or consecutive sentences is a judicial determination, not a jury determination, and thus not subject to the rule that any sentencing enhancement factor must be proved to the jury beyond a reasonable doubt.

Civil Commitment of Violent Sexual Offenders

Some sexual offenders may still be dangerous even after they serve their entire prison term. Both state and federal laws allow the continued confinement of violent sexual predators after the expiration of their criminal sentences. In 1997, the Supreme Court upheld a Kansas statute finding that such confinement did not violate the double jeopardy or ex post facto prohibitions. (Kansas v. Hendricks, 521 U.S. 346 (1997)). In 2010, the Court decided that in enacting the Adam Walsh Act, 18 U.S.C. 4248, Congress had not exceeded its authority by allowing civil commitment after an offender has served his or her criminal sanction. Justice Stephen Breyer wrote, “the statute is a necessary and proper means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others.” ^[1]