justice safety valve act of 2013 supplier

The Justice Safety Valve Act of 2013 (H.R. 1695 in the House or S. 619 in the Senate) is a bill in the 113th United States Congress.minimum sentences under certain circumstances.

The bill amends the federal criminal US code of the United States title 18, Part II, Chapter 227, Subchapter A, Section 3553 Imposition of a Sentence. It aimed to authorize a federal court to impose a sentence below a statutory minimum if necessary to avoid violating federal provisions prescribing factors courts must consider in imposing a sentence. It requires the court to give parties notice of its intent to impose a lower sentence and to state in writing the factors requiring such a sentence.

On November 21, 2013, the United States Senate Judiciary Committee convened in a rescheduled Executive Business Meeting. The meeting was to discuss and possibly vote on moving forward with the Justice Safety Valve Act. Other related Acts include the S.1410, "The Smarter Sentencing Act of 2013" (Durbin, Lee, Leahy, Whitehouse) and

S.1675, Recidivism Reduction and Public Safety Act of 2013 (Whitehouse, Portman). The Justice Safety Valve Act became one of many new bills to address prison overcrowding and the soaring cost to the American taxpayers. A quorum was not present at the meeting and the Chairman had to postpone discussion and possible vote on the Justice Safety Valve Act. The bills were held over by the Senate Judiciary Committee through the end of 2013 and January 2014. The bills were worked on to merge the language of the Smarter Sentencing Act (H.R. 3382/S. 1410) and the Justice Safety Valve Act (H.R. 1695/S. 619) along with a new bill, S. 1783 the Federal Prison Reform Act of 2013, introduced by John Cornyn (R-TX).

The bill summary was written by the Congressional Research Service, a nonpartisan division of the Library of Congress. It reads, "Justice Safety Valve Act of 2013 - Amends the federal criminal code to authorize a federal court to impose a sentence below a statutory minimum if necessary to avoid violating federal provisions prescribing factors courts must consider in imposing a sentence. Requires the court to give the parties notice of its intent to impose a lower sentence and to state in writing the factors requiring such a sentence."

113th Congress (2013) (April 24, 2013). "H.R. 1695: Justice Safety Valve Act of 2013". Legislation. GovTrack.us. Retrieved October 26, 2013. Justice Safety Valve Act of 2013

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On September 18, 2013, the United States Senate Committee on the Judiciary held a hearing entitled, "Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences."

Chairman Leahy, Ranking Member Grassley, and members of the Committee, thank you for the opportunity to provide a written statement for the record for today’s hearing,“Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences.”

Human Rights Watch has been concerned about the flaws in mandatory minimum sentencing schemes for over 15 years. We are very pleased that your Committee is taking up this issue, as we believe it is well past time for Congress to eliminate or significantly restrict mandatory minimum sentences, which we have found often lead to excessive and unfair sentences.

Imprisonment is the most coercive and drastic sanction short of the death penalty that can be lawfully imposed on individuals by government.  International human rights standards, particularly the inherent dignity of the individual, the prohibition on inhuman or degrading punishment, and the right to liberty, require that sentences be proportionate to the gravity of the individual’s conduct and culpability and should be no longer than necessary to further the purposes of punishment.

In 1973, New York enacted harsh mandatory sentencing laws for drug offenses and for second-time felony offenders. The purpose of the drug laws was to deter people from using or selling drugs and to isolate from society those who were not deterred. "It was thought that rehabilitation efforts had failed; that the epidemic of drug abuse could be quelled only by the threat of inflexible, and therefore certain, exceptionally severe punishment."[1]  Strongly supported by Governor Nelson Rockefeller, the new drug laws (commonly referred to as the Rockefeller laws) established a scale of extraordinarily punitive mandatory sentences for the unlawful possession and sale of controlled substances keyed to the weight of the drug involved.

In our report we told the story of Roberta Fowler, a twenty-year-old with two children at the time of sentencing. Fowler had previous convictions for possession of drug paraphernalia, prostitution, and larceny.[3]She received a term of four years to life imprisonment for providing $20 worth of cocaine to an undercover agent. We also noted the case of John Gamble, indicted for selling a $10 vial of crack cocaine to an undercover police officer. He had one prior felony, for possessing a car four days after it was stolen. He had never been imprisoned. Gamble was convicted after trial and received a ten- to-twenty-year sentence for the cocaine sale.[4]

Mandatory minimum sentences — both in New York and, as described below, elsewhere — often result in sentences that are disproportionate to the offense.   The mandatory minimum sentences in New York were punishing people whose actions caused minimal harm, while at the same time having little deterrent effect.

The tide has turned in New York — the state began moving away from its Rockefeller drug laws in the 2000s, first by reducing the length of many mandatory minimums in 2004 and subsequently by completely eliminating many of these excessive mandatory minimums in 2009.[5]Crime rates in the state continue to drop after the elimination of these sentences.[6]

Mandatory sentencing at the federal level has been particularly common for drug-related crimes. Sixty percent of federal drug offenders in fiscal year 2012 received a mandatory sentence, accounting for three-quarters of all federal defendants receiving a mandatory minimum sentence.[8]  More than a quarter of federal drug offenders (28 percent) received five-year mandatory minimum sentences; almost one-third (32 percent) received 10-year mandatory minimum sentences.[9]

When Congress enacted mandatory minimum sentences for federal drug offenders in 1986 and 1988, it intended those sentences to punish major traffickers and kingpins.  But because the sentences are triggered by drug quantities involved in the offense and not by role in drug hierarchies, even low-level offenders receive them. For example, more than two-thirds (68 percent) of street-level dealers (i.e., those who sell directly to users in quantities of less than one ounce) received a mandatory minimum sentence.[10]  Harsh penalties based solely on drug type and quantity fail to distinguish between varying levels of culpability, and fail to ensure that those who occupy more senior positions in criminal organizations receive higher sentences than peripheral participants.

Mandatory minimum sentencing laws bear heavy responsibility for distortions in federal sentencing, including sentences that are disproportionately severe relative to the individual crime and the offender’s culpability. By enacting an increasing number of mandatory minimums, Congress has deprived federal judges of the ability to calibrate sentences according to the specific conduct and culpability of the individual defendant, taking into account the purposes of sentencing. As a practical matter, sentencing decisions have been transferred from an independent judiciary with no personal stake in the outcome of a case to prosecutors, representatives of the executive branch with personal as well as institutional interests in securing convictions. Their choices as to what offenses to charge —and what plea bargains to accept —dictate the sentence.

In the federal system, prosecutors also have the authority under the law to file motions in court that mandatorily increase a defendant’s sentence upon conviction based upon certain facts, e.g. past record or possession of a gun in furtherance of a crime. At the prosecutors’ discretion, federal drug offenders facing a ten-year mandatory minimum sentence can have their sentence mandatorily doubled to twenty years because of a prior drug conviction; and their sentence can metastasize into a life sentence if they have two prior drug convictions, as shown in the case of Roy Lee Clay:

Roy Lee Clay, 48 years old, was sentenced by a federal court on August 27, 2013 to life behind bars. He was convicted after trial of one count for a conspiracy to distribute one kilogram or more of a mixture or substance containing heroin.  According to the prosecutors he was part of a heroin distribution group centered in Baltimore, Maryland. He obtained heroin in New York between 2009 and 2011 and distributed it to other dealers and to users as well. The mandatory minimum sentence for distributing one kilogram of heroin is ten years.  But Clay had two prior drug convictions – one a 1993 federal conviction for possession with intent to distribute 100 grams of heroin and a state drug distribution conviction in 2004– that made him eligible for a mandatory sentence enhancement to life.  The prosecutors sought the enhancement and the judge had no choice but to impose that sentence, even though at sentencing she indicated that she thought a thirty year sentence would have been more appropriate.[11]

Federal law also mandates additional consecutive sentences for drug offenders who possess firearms in connection with their drug crimes.[12]The guns do not have to be used, brandished or discharged and the gun offenses can all be part of the same case. Indeed, defendants who possess guns can have gun offenses attached to a conspiracy to commit a drug crime and to the offense of committing that crime. The first gun violation carries a five-year mandatory penalty consecutive to the drug sentence; the second gun offense, and every subsequent one, carries a twenty-five year consecutive sentence. The total sentence adds up quickly:

Rick Barton sold oxycontin and cocaine in rural Virginia and West Virginia, and at least four times accepted guns as payment for drugs. He was convicted after trial and sentenced to 1020 months (85 years) in prison: 60 months for his conviction of possession with intent to distribute the drugs and 960 months for his conviction on four counts for possessing guns in furtherance of his drug business.[13]

Mandatory minimums have not only given prosecutors unprecedented power to determine what a defendant’s sentence will be, they have ratcheted up the power of prosecutors to secure guilty pleas from federal drug defendants.  In 2012, 97 percent of all federal drug convictions were the result of pleas.[14]Regardless of their innocence, the strength of their case, or the weakness of the prosecutor’s case, most defendants cannot risk trial because they will face a far greater sentence if convicted after trial than if they plead guilty.

Finally, proponents of mandatory minimums suggest that these sentences help to promote public safety, yet the available evidence shows otherwise. Seventeen states have curtailed or eliminated their mandatory minimum laws and their crime rates have continued to decline.[15]

Though Congress is late to reforms, we have been encouraged by recent steps in the direction of sentencing reform. The Fair Sentencing Act of 2010 reduced the statutory penalties for crack offenses by increasing the quantity threshold required to trigger a mandatory sentence. It also repealed the federal five-year mandatory minimum for simple possession of crack cocaine —the first federal repeal of a mandatory minimum since the 1970s.[16]

Senators Rand Paul and Patrick Leahy have introduced the Justice Safety Valve Act, improving on the current federal “safety valve,” which exempts certain drug offenders from otherwise applicable mandatory minimum sentences if their crime is minor, involves no violence, the offender has no or a negligible prior criminal record, and the offender is willing to provide information to the government. Welcome as the existing safety valve is, it leaves far too many defendants subject to mandatory sentence. The Justice Safety Valve Act would be a substantial improvement as it would give sentencing flexibility to judges in a much broader number of cases involving mandatory minimums. Senators Dick Durbin and Mike Lee have also proposed improvements to the safety valve through their recently introduced Smarter Sentencing Act.

In August 2013, US Attorney General Eric Holder instructed federal prosecutors to try to avoid charges carrying mandatory minimum sentences for certain low-level, nonviolent drug offenders and to refrain from seeking sentencing enhancements based on prior convictions unless the defendant’s conduct warranted such severe sentences.[17]

We recommend that Congress continue this momentum and follow the lead of the many states that have decided to eliminate or significantly restrict mandatory minimum sentences.

To the extent that mandatory minimums remain in place, we further recommend that Congress ensure through legislation that the minimum sentences be calculated to be proportionate to the least serious conduct covered by the statute and no greater than necessary to achieve the legitimate goals of punishment.

Congress should eliminate mandatory enhancements based on prior records, and eliminate mandatory consecutive sentences based on firearms or any other additional factor. Judges can take prior records into account in fashioning proportionate sentences.

Congress should establish broader safety valve provisions that authorize judges to sentence below the mandatory minimum, including sentences to probation and community supervision, if the individual circumstances of the case and the individual characteristics of the offender merit such a reduction to serve the interests of justice and further the goals of punishment and a higher sentence would be greater than necessary to further those goals.

[2]Human Rights Watch, Cruel and Usual: Disproportionate Sentences for New York Drug Offenders, vol. 9, no. 2 (B), March 1997, https://www.hrw.org/reports/1997/usny.

[5]Madison Gray, “A Brief History of New York’s Rockefeller Drug Laws,” Timemagazine, April 2, 2009, http://content.time.com/time/nation/article/0,8599,1888864,00.html(accessed September 17, 2013).

[6]Timothy O’Connor and Tim Henderson, “New York drug-law reforms, drop in crime reduce prison population,” Journal News, http://www.lohud.com/article/20111016/NEWS02/110160330/New-York-drug-law... (accessed September 17, 2013).

[7]United States Sentencing Commission, “Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System,” October 2011, p. 71.

[9]United States Sentencing Commission, 2012 Sourcebook of Federal Sentencing Statistics,http://www.ussc.gov/Research_and_Statistics/Annual_Reports_and_Sourceboo...(accessed September 17, 2013),Table 43.

[10]United States Sentencing Commission, “Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System,” October 2011, p.168, Figures 8-11.

[11]United States v. Garcia, et al,no. 11-cr-0569-CCB (D. Md. 2013); see alsoIan Duncan, “Heroin dealer gets mandatory term of life without parole,” Baltimore Sun, August 27, 2013, http://www.baltimoresun.com/news/maryland/crime/blog/bs-md-ci-heroin-dea... (accessed September 17, 2013).

[14]United States Sentencing Commission, 2012 Sourcebook of Federal Sentencing Statistics, http://www.ussc.gov/Research_and_Statistics/Annual_Reports_and_Sourceboo...(accessed September 17, 2013).

[15]Julie Stewart, “Mandatory Ineffectiveness,” U.S. News & World Report, September 2, 2013,http://www.usnews.com/opinion/articles/2013/09/02/eric-holder-is-right-t... (accessed September 17, 2013).

[17]“Attorney General Delivers Remarks at the Annual Meeting of the American Bar Association’s House of Delegates,” United States Department of Justice press release,  August 12, 2013, http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130812.html (accessed September 17, 2013).  The criteria for this policy to apply would exclude a substantial share of cases, so it is unclear how significant of an impact this change will have.

Luna, Erik. “Mandatory Minimums.” Reforming Criminal Justice: Punishment, Incarceration, and Release, vol. 4, 2017, pp. 117-133.https://law.asu.edu/sites/default/files/pdf/academy_for_justice/7_Criminal_Justice_Reform_Vol_4_Mandatory-Minimums.pdf

“… consequentialist theories are forward-looking in their focus on the future consequences of punishment. The primary consequentialist theory—utilitarianism—imposes criminal penalties only to the extent that social benefits outweigh the costs of punishment. In particular, the imposition of criminal sanctions might: discourage the offender from committing future crimes (specific deterrence); dissuade others from committing future crimes (general deterrence); or disable the particular offender from committing future crimes (incapacitation). According to their advocates, mandatory minimums both deter and incapacitate offenders. With respect to deterrence, mandatory minimum sentences are sometimes justified as sending an unmistakable message to criminals. Some offenses require certain minimum punishments, advocates claim. They argue that because of the wide diversity of views on the appropriate level of punishment for offenders, legislators—not judges—are in the best position to make sentencing determinations. The certain, predictable, and harsh sentences forewarn offenders of the consequences of their behavior upon apprehension and conviction. Proponents contend that mandatory minimums also incapacitate the most incorrigible criminals and thereby prevent them from committing crime. None of these claims receives robust empirical support, however, as most researchers have rejected crime-control arguments for mandatory sentencing laws. There is little evidence that lengthy prison terms serve specific deterrence. Rather, imprisonment either has no effect on an inmate’s future offending or perhaps even increases recidivism. …

“As for general deterrence, research has largely failed to show that mandatory minimums decrease the commission of crime, and some studies suggest that such punishment schemes may even generate more serious crime. Regardless, any deterrence-based reduction in crime is far outweighed by the increased costs of incarceration from long mandatory sentences. …

“Mandatory minimum sentences are also unlikely to reduce crime by incapacitation, at least given the overbreadth of such laws and their failure to focus on those most likely to recidivate. Among other things, offenders typically age out of the criminal lifestyle, usually in their 30s, meaning that long mandatory sentences may require the continued incarceration of individuals who would not be engaged in crime. In such cases, the extra years of imprisonment will not incapacitate otherwise active criminals and thus will not result in reduced crime. … Moreover, certain offenses subject to mandatory minimums can draw upon a large supply of potential participants. With drug organizations, for instance, an arrested dealer or courier may be quickly replaced by another, eliminating any crime-reduction benefit. More generally, any incapacitation-based effect from mandatory minimums was likely achieved years ago, due to the diminishing marginal returns of locking more people up in an age of mass incarceration. Based on the foregoing arguments and others, most scholars have rejected crime-control arguments for mandatory sentencing laws. By virtually all measures, there is no reason to believe that mandatory minimums have any meaningful impact on crime rates.”

National Research Council. The Growth of Incarceration in the United States: Exploring Causes and Consequences. The National Academies Press, 2014.https://doi.org/10.17226/18613

“The conclusion that increasing already long sentences has no material deterrent effect also has implications for mandatory minimum sentencing. Mandatory minimum sentence statutes have two distinct properties. One is that they typically increase already long sentences, which we have concluded is not an effective deterrent. Second, by mandating incarceration, they also increase the certainty of imprisonment given conviction. Because, as discussed earlier, the certainty of conviction even following commission of a felony is typically small, the effect of mandatory minimum sentencing on certainty of punishment is greatly diminished. Furthermore, as discussed at length by Nagin (2013a, 2013b), all of the evidence on the deterrent effect of certainty of punishment pertains to the deterrent effect of the certainty of apprehension, not to the certainty of postarrest outcomes (including certainty of imprisonment given conviction). Thus, there is no evidence one way or the other on the deterrent effect of the second distinguishing characteristic of mandatory minimum sentencing (Nagin, 2013a, 2013b).”

Tonry, Michael. “Fifty Years of American Sentencing Reform — Nine Lessons.” 7 Dec. 2018, Crime and Justice—A Review of Research. Forthcoming. Available at SSRN:https://ssrn.com/abstract=3297777

“Mandatory Sentences. Mandatory sentencing laws should be repealed, and no new ones enacted; they produce countless injustices, encourage cynical circumventions, and seldom achieve demonstrable reductions in crime.

“Mandatory sentencing laws are a fundamentally bad idea. From eighteenth century England, when pickpockets worked the crowds at hangings of pickpockets and juries refused to convict people of offenses subject to severe punishments, to twenty-first century America, the evidence has been clear. Mandatory minimum sentences have few if any discernible deterrent effects and, because of their rigidity, result in unjustly harsh punishments in many cases and willful circumvention by prosecutors, judges, and juries in others. In our time, when plea bargaining is ubiquitous, mandatories are routinely used to coerce guilty pleas, sometimes from innocent people (Johnson 2019).

“In the 1950s, the American Bar Foundation undertook the most extensive research ever conducted on day-to-day operations of American criminal courts. They learned that prosecutors applied mandatories selectively and that judges and juries refused to convict when penalties seemed too severe. Frank Remington, who directed the project, observed in 1969, ‘Legislative prescription of a high mandatory sentence for certain offenders is likely to result in a reduction in charges at the prosecution stage, or if this is not done, by a refusal of the judge to convict at the adjudication stage. The issue ... thus is not solely whether certain offenders should be dealt with severely, but also how the criminal justice system will accommodate to the legislative charge.’ A large number of sophisticated case processing studies in the 1970s, 1980s, and 1990s reached the same conclusion.

‘’The evidence on deterrent effects is equally damning. Countless authoritative surveys, in many countries, have concluded that mandatories’ deterrent effects are modest at best. National Academy of Sciences reports in 1978 and 2014 serve as contemporary bookends. The 1978 Panel on Research on Deterrent and Incapacitative Effects concluded, ‘In summary...we cannot assert that the evidence warrants an affirmative conclusion regarding deterrence’ (Blumstein, Cohen, and Nagin 1978, p. 7). The 2014 Committee on the Causes and Consequences of High Rates of Incarceration similarly observed:

‘Knowledge about mandatory minimum sentences has changed remarkably little in the past 30 years. Their ostensible primary rationale is deterrence. The overwhelming weight of the evidence, however, shows that they have few if any deterrent effects … Existing knowledge is too fragmentary [and] estimated effects are so small or contingent on particular circumstances as to have no practical relevance for policy making. (Travis, Western, and Redburn 2014, p. 83)’

“Contemporary research thus confirms longstanding cautions against enactment of mandatory sentencing laws. Their use to coerce guilty pleas is new and distinctive to our times. Even innocent defendants are sorely tempted to plead guilty and accept probation or a short prison term rather than risk a mandatory 10- or 20-year sentence. The late Harvard Law School professor William Stuntz observed that ‘outside the plea-bargaining process’ prosecutors’ threats to file charges subject to mandatories ‘would be deemed extortionate’ (2011, p. 260). Federal Court of Appeals judge Gerald Lynch similarly observed that prosecutors’ power to threaten mandatories has enabled them to displace judges from their traditional role: It is ‘the prosecutor who decides what sentence the defendant should be given in exchange for his plea’ (2003, p. 1404). American sentencing has become more severe in recent decades; prosecutors bear much of the responsibility (Johnson 2019).

“This is not how things are supposed to work. Until mandatory sentencing laws proliferated, prosecutors filed charges and presented evidence, judges with or without juries decided whether the evidence justified a conviction, and judges imposed sentences. This division of labor made sense, and remains the norm in other Western countries. …

“Every authoritative law reform organization that has examined American sentencing in the last 50 years has proposed elimination of mandatory minimum sentence laws. These included, in earlier times, the 1967 President’s Commission on Law Enforcement and Administration of Justice, the 1971 National Commission on Reform of Federal Laws, the 1973 National Advisory Commission on Criminal Justice Standards and Goals, the 1979 Model Sentencing and Corrections Act proposed by the Uniform Law Commissioners, and the American Bar Association’s 1994 Sentencing Standards. The American Law Institute’s Model Penal Code—Sentencing offered the same recommendation in 2017 (Reitz and Klingele 2019).”

United States Sentencing Commission. Special Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System. August 1991.https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/mandatory-minimum-penalties/1991_Mand_Min_Report.pdf

“Accordingly, we conclude that the most efficient and effective way for Congress to exercise its powers to direct sentencing policy is through the established process of sentencing guidelines, permitting the sophistication of the guidelines structure to work, rather than through mandatory minimums. There is every reason to expect that by so doing, Congress can achieve the purposes of mandatory minimums while not compromising other goals to which it is simultaneously committed.”

“Mandatory minimum sentences for cocaine consumption or drug-related crime are not justifiable on the basis of cost-effectiveness. Mandatory minimums reduce cocaine consumption less for every million taxpayer dollars spent than allocation of the same amount on enforcement under the previous sentencing regime. Both enforcement approaches reduce drug consumption less, for every million dollars spent, than putting heavy users through treatment programs. Mandatory minimums are also less cost-effective than either alternative at reducing cocaine-related crime, primarily because of the high cost of incarceration.”

Starr, Sonja, and M. Marit Rehavi. “Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the Effects of Booker.” Yale Law Journal, vol. 123, no. 1, October 2013.https://www.yalelawjournal.org/article/mandatory-sentencing-and-racial-disparity-assessing-the-role-of-prosecutors-and-the-effects-of-booker

Considerable empirical research has shown that racial disparities in sentencing are pervasive: “one of every nine black men between the ages of twenty and thirty-four is behind bars.” In United States v. Booker, the U.S. Supreme Court rendered the mandatory guidelines merely advisory. This study, looking not just at judicial opinions but also at plea agreements, charging decisions, and other factors contributing to sentencing, shows that this racial disparity has actually not increased since more judicial discretion was permitted. Instead, the black-white gap in sentencing “appears to stem largely from prosecutors’ charging choices, especially to charge defendants with ‘mandatory minimum’ offenses.” Removing these minimums as advisory guidelines would help shift toward greater racial equalization in the sentencing arena.

“Despite substantial expenditures on longer prison terms for drug offenders, taxpayers have not realized a strong public safety return. The self-reported use of illegal drugs has increased over the long term as drug prices have fallen and purity has risen. Federal sentencing laws that were designed with serious traffickers in mind have resulted in lengthy imprisonment of offenders who played relatively minor roles. These laws also have failed to reduce recidivism. Nearly a third of the drug offenders who leave federal prison and are placed on community supervision commit new crimes or violate the conditions of their release—a rate that has not changed substantially in decades.”

“The Pew Charitable Trusts examined publicly available 2014 data from federal and state law enforcement, corrections, and health agencies. The analysis found no statistically significant relationship between state drug imprisonment rates and three indicators of state drug problems: self-reported drug use, drug overdose deaths, and drug arrests. The findings … reinforce a large body of prior research that cast doubt on the theory that stiffer prison terms deter drug misuse, distribution, and other drug-law violations.”

WASHINGON, DC—Today, Sens. Patrick Leahy (D-VT), Chairman of the Senate Committee on the Judiciary, and Rand Paul (R-KY) introduced the Justice Safety Valve Act of 2013, S. 619, which will provide federal judges more discretion in sentencing all cases by allowing them to sentence below the mandatory minimum, if appropriate.

The proposed bill would provide greater flexibility in federal sentencing, and judges would no longer be handcuffed to giving out federal mandatory minimum sentences. The existing “safety valve” mechanism only applies in drug cases, but just under one fourth of drug law offenders have benefitted from it. The Justice Safety Valve Act of 2013 would widen the existing safety valve application to all offenses.

“Passage of this bill will hopefully mean more judges won’t give low-level drug law offenders draconian sentences reserved for drug kingpins,” said Jasmine L. Tyler, deputy director of national affairs for the Drug Policy Alliance. “Research has shown that more than half of all federal drug law offenders had little or no criminal history but they make up more than half of all federal prisoners.”

The use of mandatory minimum sentencing has been identified by the Congressional Research Service to be one of the driving factors in the overcrowding crisis, as the Federal Bureau of Prisons (BoP) population has increased from about 25,000 in 1980 to nearly 219,000 in 2012. The BoP is currently operating at 139 percent capacity and funding for federal prisons now makes up almost a quarter of the budget for the U.S. Department of Justice – and is projected to increase to 30 percent by 2020. The U.S. Sentencing Commission has also concluded that mandatory minimum penalties apply too broadly, are unduly severe, and are applied inconsistently in the federal system which has caused an the explosion in population and cost.

“Congress must reexamine mandatory minimum sentencing to determine whether they are necessary and appropriate while also analyzing the racial disparities that have arisen in the imposition of mandatory sentences. Tyler said. “This bill is a step in the right direction. While overdue, the recent reform of the crack-powder cocaine sentencing disparity did not do enough to alleviate mass incarceration, or racial disparities, in the federal system.”

This is a brief discussion of the law associated with themandatory minimum sentencing provisions offederal controlled substance(drug)lawsanddrug-related federal firearms and recidivist statutes.Thesemandatory minimums, however, are not as mandatory as they might appear.The government may elect not to prosecute the underlying offenses.Federal courtsmaydisregardotherwise applicable mandatory sentencing requirementsat the behest of the government.Thefederal courtsmay also bypasssome ofthemfor the benefit of certain low-level, nonviolent offenders withvirtually spotlesscriminal recordsunder the so-called"safety valve" provision.Finally, in cases where the mandatory minimums would usually apply, thePresident may pardon offenders or commute their sentences before the minimum term of imprisonment has been served.Be that as it may,sentencing in drug cases,particularlymandatory minimum drug sentencing, hascontributedtoan explosion in thefederal prison population and attendant costs.Thus, the federal inmate population at the end of 1976 was 23,566, and at the end of 1986 it was 36,042.OnJanuary 4, 2018,the federal inmate population was 183,493.As of September 30, 2016, 49.1% of federal inmates were drug offenders and 72.3% of those were convicted of an offense carrying a mandatory minimum.In 1976, federal prisons cost $183.914 million; in 1986, $550.014 million; and in 2016, $6.751 billion (est.).

Federal mandatory minimum sentencing statutes have existed since the dawn of the Republic. When the first Congress assembled, it enacted several mandatory minimums, each of them a capital offense.

Then, in 1984, Congress enacted the Sentencing Reform Act that created the United States Sentencing Commission and authorized it to promulgate then binding sentencing guidelines.

The hate crime legislation enacted in 2009 directed the U.S. Sentencing Commission to submit a second report on federal mandatory minimums.Booker decision and its progeny, the Guidelines became but the first step in the sentencing process.

The second Commission report recommended that Congress consider expanding eligibility for the safety valve, and adjusting the scope, severity, and the prior offenses that trigger the recidivist provisions under firearm statute

In October 2017, the commission issued a third report devoted exclusively to mandatory minimum penalties for drug offenses, in which it made no recommendations.

3. Offenses carrying a drug mandatory minimum penalty were used less often, as the number and percentages of offenders convicted of an offense carrying a mandatory minimum penalty has decreased since fiscal year 2010.

4. While fewer offenders were convicted of an offense carrying a mandatory minimum penalty in recent years, the offenses of those who were tended to be more serious.

6. Statutory relief plays a significant role in the application and impact of drug mandatory minimum penalties, and results in significant reduced sentences when applied.

7. Additionally, drug mandatory minimum penalties appear to provide criminal defendants with a significant incentive to provide substantial assistance to the government pursuant to 18 U.S.C. § 3553(e) and the related guideline provisions of USSG §5K1.1.

8. However, neither the statutory safety valve provision at 18 U.S.C. § 3553(f), nor the substantial assistance provision of 18 U.S.C. § 3553(e) fully ameliorate the impact of drug mandatory minimum penalties on relatively low-level offenders.

10. Although likely due in part to an older age at release, drug trafficking offenders convicted of an offense carrying a drug mandatory minimum penalty had a lower recidivism rate than those drug trafficking offenders not convicted of such an offense.

Trafficking lesser amounts of 841(b)(1)/960(b) substances; other Schedule I or II substances; analogues; or date rape drugs: if death or serious injury results

Section 841(a) outlaws knowingly or intentionally manufacturing, distributing, dispensing, or possessing with the intent to distribute or dispense controlled substances except as otherwise authorized by the Controlled Substances Act.

The government may establish the knowledge element of Section 841(a) in either of two ways. First, the "knowledge requirement may be met by showing that the defendant knew he possessed a substance listed on the [controlled substance] schedules."

When a defendant claims no guilty knowledge, the circumstances may warrant a willful blindness instruction to the jury. The willful blindness instruction, sometimes called the deliberate ignorance or "ostrich head in the sand" instruction, is warranted if "(1) the defendant claims lack of knowledge; (2) the evidence would support an inference that the defendant consciously engaged in a course of deliberate ignorance; and (3) the proposed instruction, as a whole, could not lead the jury to conclude that an inference of knowledge is mandatory."

Manufacture: For purposes of Section 841(a), ""manufacture" means the production … or processing of a drug, and the term "production" includes the manufacture, planting, cultivation, growing, or harvesting of a controlled substance."

Distribute or Dispense: The Controlled Substances Act defines the term "distribute" broadly. The term encompasses any transfer of a controlled substance other than dispensing it.

Possession with Intent to Distribute or Dispense: The government may satisfy the possession element with evidence of either actual or constructive possession.

The escalating mandatory minimums that apply to offenders with "a prior conviction for a felony drug offense" extend to those offenses classified as misdemeanors under state law, but punishable by imprisonment for more than a year.

Sentencing for violations of Section 841(a) is governed by the nature and volume of the substance involved, the defendant"s criminal record, and injuries attributable to the offense.

The eight substances are heroin, powder cocaine, cocaine base (crack), PCP, LSD, fentanyl, methamphetamine, and marijuana. Criminal penalties related to each substance provide one set of mandatory minimums for trafficking in a very substantial amount listed in Section 841(b)(1)(A), and a second, lower set of mandatory minimums for trafficking in a lower but still substantial amount listed in Section 841(a)(1)(B). The first set (841(b)(1)(A) level) features the following thresholds:heroin - 1 kilogram;

A Section 841(a) violation involving one of the eight drugs at the higher 841(b)(1)(A) level is punishable by imprisonment for:not less than 10 years;

a mandatory term of life imprisonment if the offender has a prior felony drug conviction and the offense resulted in death or serious bodily injury or if the offender has two or more prior felony drug convictions.

A Section 841(a) violation involving one of the eight drugs in lesser amounts, or some other Schedule I or II drug, or a date rape drug is punishable by imprisonment for:not less than 20 years if death or serious bodily injury results; and

The felony drug convictionsthat trigger the sentencing enhancementinclude federal, state, and foreign convictions.The "serious bodily injury" enhancement is confined to bodily injuries which involve"(A) a substantial risk of death;(B) protracted and obvious disfigurement; or(C) protracted loss or impairment of the function of a bodily member, organ, or mental faculty."And, the "if death results" enhancement is availableonlyif the drugs provided by the defendant were the "but-for" cause of death;it is not available if the drugs supplied were merely a contributing cause.The same "but for" standard presumably applies with equal force to the "serious bodily injury" enhancement.

To prove an attempt to violate Section 841(a) "the government must establish beyond a reasonable doubt that the defendant (a) had the intent to commit the object crime and (b) engaged in conduct amounting to a substantial step towards its commission. For a defendant to have taken a substantial step, he must have engaged in more than mere preparation, but may have stopped short of the last act necessary for the actual commission of the substantive crime."

Conspiracy is an agreement to commit a crime.i.e., an agreement to distribute the drugs; (2) that the defendant knew of the conspiracy; and (3) that the defendant intentionally joined the conspiracy."

Although it technically demonstrates an agreement to distribute a controlled substance, proof of a small, one-time sale of a controlled substance is ordinarily not considered sufficient for a conspiracy conviction. "[T]he factors that demonstrate a defendant was part of a conspiracy rather than in a mere buyer/seller relationship with that conspiracy include: (1) the length of affiliation between the defendant and the conspiracy; (2) whether there is an established method of payment; (3) the extent to which transactions are standardized; (4) whether there is a demonstrated level of mutual trust; (5) whether the transactions involved large amounts of drugs; and (6) whether the defendant purchased his drugs on credit."

Trafficking offenses that ordinarily do not trigger mandatory minimum sentences may do so if they involve special circumstances. Thus, trafficking to pregnant women,

Section 960 sets the penalties for three categories of offenses: (1) importing or exporting a controlled substance in violation of 21 U.S.C. § 825 (labeling and packaging), § 952 (importing controlled substances), § 953 (exporting controlled substances), or § 967 (smuggling controlled substances); (2) possession of a controlled substance aboard a vessel or aircraft in violation of 21 U.S.C. § 955; and (3) possession with intent to distribute in violation of 21 U.S.C. § 959.

Of these, violations of Sections 952 and 959 appear to be the most commonly prosecuted. "To sustain a conviction for the importation of a controlled substance[under Section 952], the government must prove: (1) the defendant played a role in bringing a quantity of a controlled substance into the United States; (2) the defendant knew the substance was controlled; and (3) the defendant knew the substance would enter the United States."

Section 963 outlaws attempts and conspiracies to violate the prohibitions covered by Section 960, and calls for the same penalties, including mandatory minimums, as apply to the underlying substantive offenses.

The term "vessel subject to the jurisdiction of the United States" includes vessels within U.S. territorial or customs waters, and vessels of foreign registration or vessels located in foreign territorial waters when the foreign nation has consented to application of U.S. law, as well as vessels for which no claim of registration or false claim of registration is presented.

Section 960a doubles the otherwise applicable mandatory minimum sentence for drug trafficking (including an attempt or conspiracy to traffic) when the offense is committed in order to fund a terrorist activity or terrorist organization.

Conviction of a Continuing Criminal Enterprise (CCE or Drug Kingpin) offense results in imposition of a 20-year mandatory minimum; the mandatory minimum for repeat offenders is 30 years.

To secure a conviction, the government must establish, "1) a felony violation of the federal narcotics laws; 2) as part of a continuing series of three or more related felony violations of federal narcotics laws; 3) in concert with five or more other persons; 4) for whom [the defendant] is an organizer, manager or supervisor; [and] 5) from which [the defendant] derives substantial income or resources."

The homicide mandatory minimum found in the drug kingpin statute sets a 20-year minimum term of imprisonment for killings associated with a kingpin offense or for killings of law enforcement officers associated with certain other controlled substance offenses.

Section 924(c), in its current form, establishes one of several different minimum sentences when a firearm is used or possessed in furtherance of another federal crime of violence or drug trafficking. The mandatory minimums must be imposed in addition to any sentence imposed for the underlying crime of violence or drug trafficking and vary depending upon the circumstances:imprisonment for not less than five years, unless one of the higher mandatory minimums below applies;

imprisonment for life if the offender has a prior conviction for violation of Section 924(c) and if the firearm is a machine gun or destructive device or is equipped with a silencer.

Section 924(c) outlaws possession of a firearm in furtherance of, or use of a firearm during and in relation to, a predicate offense. A "firearm" for purposes of Section 924(c) includes not only guns ("weapons ... which will or [are] designed to or may readily be converted to expel a projectile by the action of an explosive"), but silencers and explosives as well.

Section 924(c) is triggered when a firearm is used or possessed in furtherance of a predicate offense. The predicate offenses are crimes of violence and certain drug trafficking crimes. The drug trafficking predicates include any felony violation of the Controlled Substances Act, the Controlled Substances Import and Export Act, or the Maritime Drug Law Enforcement Act.

The "in furtherance" component compels the government to show some nexus between possession of a firearm and a predicate offense – that is, to show that the firearm furthered, advanced, moved forward, promoted, or in some way facilitated the predicate offense.

Although the Supreme Court has determined that acquiring a firearm in an illegal drug transaction does not constitute "use" in violation of Section 924(c),

The "use" outlawed in the use or carriage branch of Section 924(c) requires that a firearm be actively employed "during and in relation to" a predicate offense – that is, either a crime of violence or a drug trafficking offense.

A firearm is used or carried "during and in relation" to a predicate offense when it has "some purpose or effect with respect" to the predicate offense; "its presence or involvement cannot be the result of accident or coincidence."

The basic five-year mandatory minimum penalty for using, carrying, or possessing a firearm in the course of a predicate offense becomes a seven-year mandatory minimum if a firearm was brandished during the course of the offense and becomes a 10-year mandatory minimum if a firearm was discharged during the course of the offense.Alleynev. United States must be presented to the jury and proven beyond a reasonable doubt.

For some time, Section 924(c) consisted of a single long paragraph with brandishing, discharging, short barrels, semiautomatics, machine guns, and bombs all in the same paragraph. When Congress added the "possession in furtherance" language, it parsed the section. Now, the general, brandish, and discharge mandatory penalties provisions appear in one part.

The circuits are apparently divided over the question of whether the government must show that the defendant knew that the firearm at issue was of a particular type (i.e., short-barreled rifle or shotgun, machine gun, or bomb).

Prior to the division, the Supreme Court had identified as an element of a separate offense (rather than a sentencing factor) the question of whether a machine gun was the firearm used during and in relation to a predicate offense.

As a general rule, anyone who commands, counsels, aids, or abets the commission of a federal crime by another is punishable as though he had committed the crime himself.

The Supreme Court has said in Rosemond v. United States that to aid or abet a violation of Section 924(c), the assistance may be shown to have advanced either the predicate offense or the firearm use.

The penalties under Section 924(c) were once flat sentences. For example, the penalty for use of a firearm during the course of a predicate offense was a five-year term of imprisonment.

A number of defendants have sought refuge in the clause of Section 924(c), which introduces the section"s mandatory minimum penalties with an exception: "[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law." Defendants at one time argued that the mandatory minimums of Section 924(c) become inapplicable when the defendant was subject to a higher mandatory minimum under the predicate drug trafficking offense under the Armed Career Criminal Act (18 U.S.C. § 924(e)), or some other provision of law.Abbottv. United States.

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years.... 18 U.S.C. § 924(e)(1).

Section 924(e) begins with unlawful possession of a firearm ("a person who violates section 922(g)"). The threshold possession offense need not itself involve a drug or violent crime.

There is "no authority to ignore [an otherwise qualified] conviction because of its age or its underlying circumstances. Such considerations are irrelevant ... under the Act."

The section defines serious drug offenses as those violations of state or federal drug law punishable by imprisonment for 10 years or more.Conviction under a statute which carries a 10-year maximum for repeat offenders qualifies, even though the maximum term for first-time offenders is five years.

The term "serious drug offense" includes attempts or conspiracies to commit a serious drug offense, as long as the attempt or conspiracy is punishable by imprisonment for 10 years or more.

The Supreme Court in Johnson v. United States found unconstitutionally vague Section 924(e)"s violent felony residual clause ("the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year … that … involves conduct that presents a serious potential risk of physical injury to another.").

Low-level drug offenders can escape some of the mandatory minimum sentences for which they qualify under the safety valve found in 18 U.S.C. § 3553(f). Congress created the safety valve after it became concerned that the mandatory minimum sentencing provisions could have resulted in equally severe penalties for both the more and the less culpable offenders.

The safety valve is not available to avoid the mandatory minimum sentences that attend other offenses, even those closely related to the covered offenses. Section 860 (21 U.S.C. § 860), which outlaws violations of Section 841 near schools, playgrounds, or public housing facilities and sets the penalties for violation at twice what they would be under Section 841, is not covered. Those charged with a violation of Section 860 are not eligible for relief under the safety valve provisions.

For the convictions to which the safety valve does apply, the defendant must convince the sentencing court by a preponderance of the evidence that he satisfies each of the safety valve"s five requirements.

The safety valve has two disqualifications designed to reserve its benefits to the nonviolent. One involves instances in which the offense resulted in death or serious bodily injury. The other involves the use of violence, threats, or the possession of weapons. The weapon or threat of violence disqualification turns upon the defendant"s conduct or the conduct of those he "aided or abetted, counseled, commanded, induced, procured, or willfully caused."

The Sentencing Guidelines define "serious bodily injury" for purposes of Section 3553(f)(3) as an "injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation."

The Guidelines disqualify anyone who acted as a manager of the criminal enterprise or who receives a Guideline level increase for his aggravated role in the offense.

The most heavily litigated safety valve criterion requires full disclosure on the part of the defendant. The requirement extends not only to information concerning the crimes of conviction, but also to information concerning other crimes that "were part of the same course of conduct or of a common scheme or plan," including uncharged related conduct.

Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant"s substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.

The substantial assistance provision was enacted with little fanfare in the twilight of the 99th Congress as part of the wide-ranging Anti-Drug Abuse Act of 1986, legislation that established or increased a number of mandatory minimum sentencing provisions.

As a general rule, a defendant is entitled to a sentence below an otherwise applicable statutory minimum under the provisions of § 3553(e) only if the government agrees.

Any sentence imposed below the statutory minimum by virtue of Section 3553(e) must be based on the extent of the defendant"s assistance; it may not reflect considerations unrelated to such assistance.e.g., "offense-level-based reductions, month-based reductions, and percentage-based reductions."

The substantial assistance exception makes possible convictions that might otherwise be unattainable. Yet, it may also lead to "inverted sentencing," that is, a situation in which "the more serious the defendant"s crimes, the lower the sentence – because the greater his wrongs, the more information and assistance he had to offer to a prosecutor"; while in contrast the exception is of no avail to the peripheral offender who can provide far less substantial assistance.

Defendants sentenced to mandatory minimum terms of imprisonment have challenged their sentences on a number of constitutional grounds beginning with Congress"s legislative authority and ranging from cruel and unusual punishment through ex post facto and double jeopardy to equal protection and due process. Each constitutional provision defines outer boundaries that a mandatory minimum sentence and the substantive offense to which it is attached must be crafted to honor.

Many of the federal laws with mandatory minimum sentencing requirements were enacted pursuant to Congress"s legislative authority over crimes occurring on the high seas or within federal enclaves,

"The Congress shall have Power ... To regulate Commerce with Foreign Nations, and among the several States, and with Indian Tribes."United States v. Lopez, "[f]irst, Congress may regulate the use of the channels of interstate commerce.... Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.... Finally, Congress"s commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce."

Applying these standards, the LopezCourt concluded that the Commerce Clause did not authorize Congress to enact a particular statute which purported to outlaw possession of a firearm on school property. Because the statute addressed neither the channels nor instrumentalities of interstate commerce, its survival turned upon whether it came within Congress"s power to regulate activities that have a substantial impact on interstate commerce.

Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere and concerns about diversion into illicit channels, we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA [Controlled Substances Act]. Thus ... when it enacted comprehensive legislation to regulate the interstate market in a fungible commodity, Congress was acting well within its authority to "make all Laws which shall be necessary and proper" to "regulate Commerce ... among the several States." That the regulation ensnares some purely intrastate activity is of no moment."

The Constitution grants the President authority to negotiate treaties and the Senate the authority to approve them in the exercise of its advice and consent prerogatives.

"The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

[T]he 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 imprisonment of others.

Justice Scalia, in his Raich concurrence, saw the Necessary and Proper Clause as a necessary Commerce Clause supplement for legislation like the Controlled Substances Act that purports to regulate purely in-state activity.

The Constitution both grants and limits Congress"s legislative authority. In the area of mandatory minimum sentences for controlled substance violations, the constitutional challenges have arisen largely under the Eighth Amendment"s Cruel and Unusual Punishment Clause; the equal protection element of the Fifth Amendment; the Fifth and Sixth Amendment components awakened by Apprendi v. New Jersey and its progeny; and the separation-of- powers doctrine.

The Supreme Court decision in Harmelin v. MichiganHarmelin was a first-time offender convicted of possession of 672 grams of cocaine, enough for possibly as many as 65,000 individual doses. Under the laws of the state of Michigan, the conviction carried with it a mandatory sentence of life imprisonment without the possibility of parole. The Court splintered over the question of whether Harmelin"s mandatory sentence offended the Eighth Amendment because it was grossly disproportionate to his offense.

Five members of the Court concluded that it did not. Two members, Justice Scalia and Chief Justice Rehnquist, simply refused to recognize an Eighth Amendment proportionality requirement, at least in noncapital cases.

Decisions of the lower federal courts seem to confirm that the Eighth Amendment precludes a mandatory term of imprisonment in drug trafficking cases only in those exceptionally rare cases when the punishment is grossly disproportionate to the offense.

The Equal Protection Clause of the Fourteenth Amendment condemns statutory classifications invidiously based on race, or constitutionally suspect factors. Moreover, "[d]iscrimination on the basis of race odious in all aspects is especially pernicious in the administration of justice."

The Constitution demands that no person "be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury" and that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury."In reWinship decision explained that due process requires that the prosecution prove beyond a reasonable doubt "every fact necessary to constitute the crime" with which an accused is charged.Winship, the question arose whether a statute might authorize or require a more severe penalty for a particular crime based on a fact—not included in the indictment, not found by the jury, and not proven beyond a reasonable doubt. Pennsylvania passed a law under which various serious crimes (rape, robbery, kidnapping, and the like) were subject to a mandatory minimum penalty of imprisonment for five years, if the judge after conviction found by a preponderance of the evidence that the defendant had been in visible possession of a firearm during the commission of the offense.

The Supreme Court concluded that visible possession of a firearm under the statute was not an element of a new series of crimes, but was instead a sentencing consideration that had been given a legislatively prescribed weight.

There followed a number of state and federal statutes under which facts that might earlier have been treated as elements of a new crime were simply classified as sentencing factors. In some instances, the new sentencing factor permitted imposition of a penalty far in excess of that otherwise available for the underlying offense. For instance, the Supreme Court found no constitutional defect in a statute which punished a deported alien for returning to the United States by imprisonment for not more than 2 years, but which permitted the alien to be sentenced to imprisonment for not more than 20 years upon a post-trial, judicial determination that the alien had been convicted of a serious crime following deportation.

Perhaps uneasy with the implications, the Court soon made it clear in Apprendithat, "under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt."McMillan"s mandatory minimum determination in light of the Apprendi.

Harris drew a distinction between facts that increase the statutory maximum and facts that increase only the mandatory minimum. We conclude that this distinction is inconsistent with our decision in Apprendi and with the original meaning of the Sixth Amendment. Any fact that, by law, increases the penalty for a crime is an element that must be submitted to the jury and found beyond a reasonable doubt. Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact t