26 Nov 23

Avoiding Federal Mandatory Minimum Sentences

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Last Updated on: 5th December 2023, 02:11 pm


Avoiding Federal Mandatory Minimum Sentences

Mandatory minimum sentences are no joke. They require judges to sentence defendants to a minimum number of years in prison, no matter what the circumstances are. Even first-time, nonviolent offenders can face decades behind bars. These laws strip away judicial discretion and force judges to hand down rigid, one-size-fits-all sentences.

But there are ways defendants can try to avoid mandatory minimums. This article will go over some of the main strategies and defenses attorneys use. We’ll also look at recent reforms that are dialing back some of the harshest mandatory minimums. There’s a long way to go, but progress is happening.

What Are Mandatory Minimum Sentences?

First, a quick primer on what mandatory minimums are. Congress passed laws establishing mandatory minimums for federal drug crimes in the 1980s and 90s, during the “tough on crime” and War on Drugs era.

These laws require judges to impose a minimum prison term for certain federal offenses. The most well-known are for drug crimes, but there are also mandatory minimums for offenses like child pornography, using a gun during a violent crime, and many others.

Judges hate these laws. Former federal judge John Gleeson called mandatory minimums “unwise, unjust, and unconstitutional.” Retired Supreme Court Justice Anthony Kennedy said they lead to “injustice and unfairness” in many cases.

But judges’ hands are tied. If the law sets a mandatory minimum, they have to enforce it no matter what.

Mandatory minimums are a big reason America’s prisons are so overcrowded. About half of federal prisoners are serving mandatory minimum sentences. And their lengths can be staggering – even for nonviolent crimes.

For example, getting caught selling 5 grams of crack triggers a 5-year mandatory minimum. Fifty grams brings a 10-year minimum. Some drug mandatory minimums are even higher:

  • 1,000 kilograms of marijuana – 10 years
  • 5 kilograms of cocaine – 10 years
  • 50 grams of meth – 10 years

These drug amounts can represent a single transaction by a low-level dealer or courier. But the law forces judges to lock them up for a decade, no exceptions.

Critics argue mandatory minimums are cruel, racially biased, and don’t reduce crime. But supporters say they provide “toughness and fairness” in sentencing.

Avoiding the Mandatory Minimum at Sentencing

Many mandatory minimum defenses focus on avoiding the mandatory sentence at the sentencing stage. By then, the defendant has already been convicted, and the judge is preparing to announce their punishment.

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Before announcing a mandatory minimum sentence, the judge has to determine if it’s triggered. This gives the defense some last chances to avoid it.

One strategy is to argue the mandatory minimum is disproportionate and violates the Eighth Amendment. The Eighth Amendment prohibits “cruel and unusual punishments.” It’s a long shot, but occasionally works for minor crimes.

Another common tactic is to cooperate with prosecutors. Prosecutors can file a “substantial assistance” motion asking the judge for leniency if the defendant provides “substantial assistance” helping their investigation. This is often through testifying against co-conspirators.

But it’s risky – the defendant is admitting more guilt hoping for mercy later. And there’s no guarantee of earning the prosecutor’s motion. Still, cooperating is one of the main ways defendants avoid mandatory minimums at sentencing.

The “Safety Valve” is another important escape method. It’s an exception letting judges sentence low-level, nonviolent drug offenders below the mandatory minimum. To qualify, defendants have to meet 5 criteria:

  1. Minimal criminal history
  2. Nonviolent offense
  3. Didn’t cause injury or death
  4. Wasn’t an organizer or leader
  5. Fully cooperated with prosecutors before sentencing

If defendants check all 5 boxes, the judge can go under the mandatory minimum. But requirements like cooperating and having minimal criminal history mean only about 25% of drug offenders qualify.

Avoiding the Mandatory Minimum at Trial

Other strategies focus on avoiding conviction altogether. Strong legal defenses can lead to acquittals or hung juries at trial.

One defense tries claiming the defendant didn’t know about the mandatory minimum. In rare cases, judges have ruled not telling defendants about mandatory minimums before pleading guilty makes their plea invalid. But this usually only works if the defense can prove the defendant would have gone to trial if they knew.

Entrapment defenses argue the crime wouldn’t have happened if not for government coercion. If successful, entrapment defenses can beat the underlying charge. But entrapment claims rarely work outside of egregious misconduct.

Lawyers also scrutinize the prosecutor’s evidence for loopholes creating reasonable doubt. For drug crimes, common attacks include questioning drug purity tests, chain of custody, or handling procedures. Anything to undermine the proof necessary to trigger the mandatory minimum.

Overall, avoiding conviction is an uphill battle. Federal prosecutors win over 90% of their cases through guilty pleas or trial convictions. But fighting the charges aggressively is sometimes defendants’ best shot at dodging the mandatory minimum.

Recent Reforms Dialing Back Mandatory Minimums

For decades, mandatory minimums only became more draconian. But winds have shifted slightly in recent years. Some important reforms are giving judges more discretion and opportunities to sentence below mandatory minimums:

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First Step Act – Passed in 2018, the First Step Act was the biggest criminal justice reform in years. One major change was expanding the Safety Valve. Now more drug offenders can qualify for exceptions from mandatory minimums.

Compassionate Release – Another provision increases “compassionate release” for elderly and terminally ill inmates. In 2020, thousands of federal prisoners applied for compassionate release due to COVID-19. Many were serving mandatory minimums.

Stacking Fix – The First Step Act also fixed the “stacking” problem. Before, if defendants had multiple charges triggering mandatory minimums, the sentences stacked on top of each other. Now multiple counts can run concurrently.

“Holloway Fix” – This change helps when mandatory minimums are triggered by drug weights. Defendants can argue the weights overstate their culpability, allowing less time. It’s named after a 2015 case, US v. Holloway.

These reforms don’t abolish mandatory minimums. But they do give judges more tools to avoid imposing them. Many more people are getting exceptions and reductions than before.

Yet most advocates say reforms so far are just baby steps. Major organizations like the American Bar Association still push for full repeal of federal mandatory minimums. But getting Congress to act will be an uphill battle.


Mandatory minimum sentences still have an iron grip on federal sentencing. But their harshness and inflexibility are facing increasing scrutiny. Reformers are starting to chip away at them through legislation, judicial discretion, and creative lawyering.

Defendants have several possible strategies to avoid mandatory minimums. But their chances depend on the facts of their case, resources, and luck of the draw with prosecutors and judges.

This unjust sentencing regime puts people in impossible situations. Even innocent defendants often plead guilty to avoid risking decades behind bars. True reform requires rethinking this cruel, outdated approach to justice.