Mandatory minimum sentencing laws were mostly enacted in a 1986 antidrug bill. Members of Congress believed that stiff penalties would deter people from engaging in illegal drug activity and would incapacitate for long period those who sold drugs. Many of these penalties are mandatory-that is, judges may not impose a penalty less than the number of years chosen by Congress. The most common mandatory sentences are for 5 and 10 years, and are based on the weight of the drug or the presence of a firearm.

These laws prevent judges from considering other relevant factors, such as the defendant's role in the offense or likelihood of committing a future offense.

Mandatory minimum has filled prison with low-level offenders, resulting in over capacity in prison populations and a higher cost for the tax payer. This heavy handed approach in sentencing disproportionately affects people of color.

The sentencing guideline system started in 1987. Congress established the sentencing commission and directed it to write guidelines to combat unjustified sentencing disparity from judge to judge across the country. The guidelines require the sentencing judge to consider various facts about the crime and the defendant. Consideration of these facts led to a "guideline range," for example, 18 to 24 months. While judges must generally impose a sentence within the range, they have discretion to choose a sentence anywhere within a range, and in unusual cases they may choose a sentence above or below the range if they explain their reasons for doing so.

Mandatory minimum sentencing laws and sentencing guidelines are both ways to limit judicial discretion, but the guidelines are clearly preferable. Unlike blunt mandatory minimums which take account of only the quantity of drugs sold, guidelines permit a judge to consider many relevant facts. Also, the mandatory minimum sentencing laws are "one-size-fits-all," while the guidelines allow for upward or downward departures in unusual cases. Unfortunately, the mandatory sentencing laws supersede or "trump" the sentencing guideline. At sentencing, judges must determine if the defendant was convicted of a quantity of drugs that triggers a mandatory minimum penalty and, if so, impose that sentence regardless of the sentencing guidelines.

However there are alternatives: first, the defendant may provide "substantial assistance" to the government by turning in other defendants. Second, some defendants qualify for the "safety valve" that Congress passed in 1994 to address (at FAMM's urging) the excessive sentences served by non-violent drug offenders. If the judge finds the defendant is a low-level, non-violent, first time offender who qualifies for the safety valve, the defendant may be sentenced under the sentencing guidelines instead of the mandatory minimum sentence law. Although the safety valve is a step in the right direction, the criteria for eligibility is very narrow, so thousands of nonviolent drug defendants are still sent to prison for decades under mandatory minimum sentencing laws.

Information provided by FAMM