Two decades ago, the U.S. Sentencing Commission issued a landmark report highlighting the injustices caused by mandatory minimum penalties. In November it released a follow-up report that shows federal sentences remain excessively harsh and rigid despite reforms that have shortened them for some offenders.
In fiscal year 2010, drug offenders accounted for two-thirds of federal defendants convicted of crimes that carried mandatory minimums, but they qualified for shorter sentences about half the time. More than one-third of those reductions involved a 1994 "safety valve" provision for low-risk, first-time offenders.
The report also shows that judges are taking advantage of the leeway allowed by the 2005 Supreme Court decision that made federal sentencing guidelines (as opposed to statutory minimums) advisory rather than mandatory. In 2010 cases involving mandatory minimums, judges deviated from the guideline range most of the time, usually against the wishes of prosecutors. At the same time, the commission found evidence that some prosecutors "exercise their discretion" to "avoid the overly severe consequences" of mandatory minimums, which "sweep more broadly than Congress may have intended," hitting low-level offenders more often than "drug kingpins."
The irrationality is not confined to drug offenses. The share of federal sex offenders subject to mandatory minimums has risen dramatically in the last decade, from 5 percent in 2001 to 51 percent in 2010. Most are charged with child pornography offenses, usually possession only. The average sentence for child porn offenders subject to mandatory minimums is 11 years. The report says these sentences "may be excessively severe and as a result are being applied inconsistently."