Most of the time mandatory minimums are discussed in the context of federal cases, the discussion involves drugs. Over the past few years, Congress has passed various pieces of legislation that have reduced some of the more excessive punishments meted out for drug cases, especially crack cocaine. For example, prior to the passage of the Fair Sentencing Act of 2010, crack cocaine was punished 100 times more severely than powder cocaine; put a different way, the punishment for possession with intent to distribute 1 gram of crack cocaine (cocaine base)—about the weight of one paperclip—was statutorily the same as 100 grams of powder cocaine. That disparity has been mitigated slightly since the passage of the Fair Sentencing Act of 2010: now 1 gram of crack cocaine receives the same punishment as 18 grams of powder cocaine. While this is a beneficial change in the drug statutes, it is still a severe disparity, and mandatory minimums still exist: there is a ten year statutory minimum for possession with intent to distribute more than a kilogram of heroin, 5 kilograms of cocaine, 100 grams of PCP, 10 grams of LSD, 1,000 kilograms of marijuana, 280 grams of cocaine base, or 50 grams of methamphetamine. Think about that for a moment: 50 paperclips worth of methamphetamine can result in prison for a decade, absent some fancy lawyering. The punitive nature of the federal criminal justice system is a sobering reality.
Mandatory minimum sentences also exist for other criminal violations and some of them are far more difficult to deal with than the statutory minimums involved in drug case. They also happen to be exceptionally severe. For example, the FBI announced on February 18, 2014 that a federal grand jury in the Eastern District of Pennsylvania had issued an indictment against 10 members of Ironworkers Local 401 with “allegedly participating in a conspiracy to commit criminal acts of extortion, arson, destruction of property, and assault in order to force construction contractors to hire union ironworkers.” According to the indictment, the target of the conspiracy was a Quaker Meetinghouse that was burned to the ground in 2012 as a result of alleged arson. The indictment alleges RICO conspiracy, violent crime in aid of racketeering, three counts of arson, two counts of use of fire to commit a felony, and conspiracy to commit arsons.
Though union violence is rarer these days than it used to be, and though the indictment contains vivid imagery that adds a bit of color to the story (one supposed “goon” squad allegedly referred to itself as “The Helpful Union Guys,” or THUGs), the real story here is the severe statutory minimums that are at play in this case.
According to the FBI several of the defendants, a 72-year-old secretary/business manager and three other unfortunate individuals, “each face a theoretical mandatory minimum term of 35 years in prison and up to a statutory maximum of 130 years.” Now, we acknowledge that the feds love touting theoretical century-long sentences that rarely, if ever, get imposed. However, statutory minimum sentences… get enforced.
What, then, carries a theoretically statutory minimum sentence that is more severe than many countries’ absolute maximum sentence? Well, like most things involving federal sentencing, it’s complicated.
The lead defendant is named in seven counts. Count One, like most federal indictments, is a conspiracy count, this time RICO conspiracy under 18 U.S.C. § 1962(d). Five of the remaining counts are substantive counts: three involving arson (18 U.S.C. § 844(i)) and two involving the use of fire to commit a felony. The remaining count is conspiracy to commit arson under 18 U.S.C. § 844(n).
The theoretical mandatory minimum of 35 years comes from the substantive counts, subsections (h) and (i).
Subsection (i)—Arson—states, among other things, that maliciously damaging or destroying any building by fire carries with it a minimum period of imprisonment for at least 5 years, with a 20 year cap. (If there is personal injury or death, the punishment is enhanced). Theoretically, then, a conviction on each of the three arson counts will net a minimum 15 year sentence.
The two counts under subsection (h)—the use of fire to commit a felony—provide the remaining 20 years to the theoretical minimum of 35 years. Under subsection (h), the use of fire to commit any federal felony shall, in addition to the punishment provided for such felony, automatically tack an additional 10 years onto whatever sentence is meted out for the other felony. In this particular indictment, the other felony is the RICO conspiracy and extortion.
Statutes like 18 U.S.C. § 844(h) are some of the more pernicious statutes in the United States Code because they automatically add a chunk of time to a sentence outside the normal sentencing rubric. For example, a relatively small-time marijuana distributor who is convicted of possession with intent to distribute less than 5 kilograms (about ten pounds) of marijuana faces a statutory maximum sentence of 5 years. Calculating his sentencing guidelines, however, yields a sentencing range of about 10 to 16 months—this defendant might conceivably argue successfully for probation. BUT, if he possess a firearm in relation to his drug trafficking offense and is charged under 18 U.S.C. § 924(c) (carrying a firearm in relation to a drug trafficking crime) his sentence explodes: not only will his guidelines calculations tick up a couple of points for possession of a dangerous weapon, but section 924(c) mandates that an additional five years of imprisonment must be tacked on to the sentence he receives for the drug trafficking offense. Where this hypothetical individual may have been perhaps a candidate for probation absent the possession of a firearm, he’s now looking at a minimum period of imprisonment for five years.
And with these types of statutory minimums (whether it is possessing a firearm in relation to a drug trafficking offense, the use of fire to commit a felony, or aggravated identity theft), there is no “safety valve” relief available to help these individuals get below the statutory minimums. Relief under U.S.S.G. § 5C1.2 is only available in drug cases (which means that a whole slew of statutes are not covered) and even then it is not available if the defendant possesses a firearm.
Clearly, then, while the efforts of the sentencing reform community in reducing statutory minimums for drug possession crimes is a step in a positive direction, efforts should also be made to mitigate against other, more shadowy, but no less insidious enhancing statutes.