Summary of the Problem:  Federal law requires judges to impose mandatory minimum sentences for defendants, who, during and in relation to or in furtherance of a crime of violence or drug trafficking crime possess, brandish or discharge a firearm, of five, seven and ten years respectively. Second and subsequent convictions under the law require a 25-year mandatory minimum sentence.  All sentences under this law must be served in addition to any other sentence, including the sentence for the underlying drug or violent crime.

            Though the 25-year recidivist enhancement appears designed to punish true recidivists-people convicted of using a firearm once, who have served their sentence, and then used a weapon again-it also is used on first time offenders.  In 1993, the Supreme Court ruled that the 25-year enhancement applies to defendants convicted of two or more separate instances of possessing a firearm, even though the defendant sustains his first conviction in the same proceeding as the second.  

            For example, a defendant who, over the course of three days, carried a gun while making three drug sales (prosecuted in a single indictment resulting in three separate convictions) can be sentenced to a minimum sentence of 55 years for the gun charges, plus whatever other sentences result from the underlying conviction. This defendant, if convicted in one trial of three instances of carrying a gun in relation to a drug trafficking offense, will be sentenced to (1) whatever sentence the drug trafficking conviction carries; (2) a five-year mandatory minimum sentence consecutive to the drug sentence, and (3) two 25-year mandatory minimum sentences consecutive to the drug sentence, consecutive to the five-year mandatory minimum and consecutive to each other. 

            This results in unduly severe sentences that do nothing to deter recidivists.  One of the most prominent cases illustrating the harshness of these unintended consequences involved Weldon Angelos.  In United States v. Angelos, 345 F. Supp. 2d 1227 (D. Utah 2004), Judge Cassell was required to sentence a twenty-four-year-old first offender, a music executive with two young children, to a mandatory consecutive term of 55 years based on his three convictions in the same trial for simply possessing a firearm in connection with small marijuana deals.[i]  The judge found this sentence to be "unjust, cruel, and even irrational," but determined he had no choice but to impose it.  He called upon the President to commute the sentence, and upon Congress to make the "second or subsequent" enhancement applicable only to true recidivists who previously had been convicted of a serious offense.  One hundred and sixty-three former U.S. Attorneys, federal judges, and DOJ officials, including four former Attorneys General, signed an amicus brief in the appeal before the Tenth Circuit, arguing that the sentence violated the Eighth Amendment.     

            In the course of rational basis review under the Equal Protection Clause, Judge Cassell found that § 924(c)is not justified by its plea-inducing properties, but quite the opposite.  When Angelos "had the temerity to decline" a plea bargain to drug trafficking and one § 924(c) count (with a fifteen-year sentence), the government charged him with four additional § 924(c) counts, thus demonstrating that the statute's "harsh punishment" is not visited on "‘flagrantly guilty repeat offenders (who avoid the mandatory by their guilty pleas), but rather on first offenders in borderline situations (who may have plausible defenses and are more likely to insist upon trial).'"  Id.at 1254 (quoting Stephen J. Shulhofer, Rethinking Mandatory Minimums, 28 Wake Forest L. Rev. 199, 203 (1999)).  Further, the government obtained 25 years of the 60-year mandatory minimum sentence by not arresting Mr. Angelos after the first controlled buy, but by arranging additional controlled buys which produced an additional § 924(c) count.  Because the government had "in some sense procured" the additional criminal acts, the deterrence rationale did not justify the stacking feature.  Id. at 1253.

Proposed Solutions: 

            Legislative Changes:  The proposed change would clarify that the second, 25-year consecutive sentence, would only apply if the defendant has been previously convicted and served a sentence for an offense under 18 U.S.C. § 924(c).   In this way the penalty will apply to true recidivists. 

            The bill also would amend Part 1 of Title 18 to include a notice provision similar to that in 18 U.S.C. § 851 for recidivist drug defendants.  It would require the government to file a notice with the court when it intends to invoke the enhanced recidivism penalties in the gun statutes.  The notice requirement will not unduly burden prosecutors, who routinely file § 851 notices.  It will add a level of fairness and predictability to the proceedings that is especially warranted in light of the fact that the enhancement is a 25-year mandatory minimum that must be served consecutive to any other sentence imposed.  

1.  Amend 18 U.S.C. § 924(c) 18 U.S.C. 924 . . .  

(c)(1)(C)  If any person is convicted under this subsection after a prior conviction under this subsection has become final, such person shall --

                        (i) be sentenced to a term of imprisonment of not less than 25 years; and

                        (ii) if the firearm involved is a machine gun or a destructive device, or is equipped with a firearm silencer or firearm muffler, be sentenced to imprisonment for life. 

2.  Add 18 U.S.C. sec. 925 to provide for proceedings to establish prior convictions in the same manner as set out in 21 U.S.C. § 851.             

Jurisdiction: 

            Legislative Branch:   Senate and House Judiciary Committees 

Background: 

            Legislative Branch:  Section 924(c)(1) was initially passed into law in 1968, and it provided for mandatory terms of imprisonment of 2 to 25 years for second or subsequent offenders, providing judges discretion in sentencing second or subsequent offenses. Congress amended the statute to eliminate that discretion in 1998. 

            In 1984, Congress passed the Sentencing Reform Act, creating the Sentencing Commission and charging it with developing sentencing guidelines. The Commission has the capacity to create guidelines based on research, data, and input from the field regarding just punishment for federal criminal offenses.  The guidelines provide an enhancement for armed offenses, but one that is significantly less than that imposed by Congress. 

            Other recidivist provisions do not operate in the same way as the stacking provision and some, like the recidivism enhancement for second and subsequent drug convictions are only triggered after a sentence for a first offense has been imposed and served.  See e.g. 21 U.S.C.§ 841(b)(1)(A).  Furthermore, the government must provide the defendant notice of the intent to seek an enhanced sentence.  See 21 U.S.C. § 851. 

            Judicial Branch:  The Criminal Law Committee of the United States Judicial Conference called for the reform of the stacking provision in testimony before the House Judiciary Committee Subcommittee on Crime, Terrorism and Homeland Security on June 26, 2007. 

 Potential Allies, Potential Opposition, and Public Opinion: 

Potential Allies:  United States Judicial Conference, American Bar Association, Families Against Mandatory Minimums, Federal Public and Community Defenders, CATO Institute, the Constitution Project, Prison Fellowship, National Association of Criminal Defense Lawyers, Independence Institute, the Center for Community Alternatives, International Community Corrections Association, Prison Legal News, International CURE, Virginia CURE, signers of an amicus brief filed in the Weldon Angelos case in the 10^th Circuit Court of Appeals, including former attorneys general Janet Reno, Benjamin Civiletti, Griffin Bell and Nicholas Katzenbach; former FBI director William S. Sessions and other former prosecutors and judges, including 150 ex-Justice Department officials, some prosecutors. 

Public Opinion:  There have been public opinion polls on mandatory minimums, but none specific to the §924(c) stacking provision. The Weldon Angelos case received significant public attention and created an outcry. At the time of the case, it was featured in national publications and news media ranging from Slate, The New York Times, and the Salt Lake Tribune to the O'Reilly Factor, The Washington Post, and the Wall Street Journal.

Experts:   

For Further Information:

Testimony of the Honorable Paul Cassell before the House Judiciary Committee Subcommittee on Crime, Terrorism and Homeland Security on June 26, 2007, available at http://judiciary.house.gov/hearings/June2007/hear_062607_3.html 

Recommendations for Federal Criminal Sentencing in a Post-Booker World http://constitutionproject.org/sentencing/article.cfm?messageID=245&categoryId=7 

Principles for the Design and Reform Of Sentencing Systems: A Background Report, http://constitutionproject.org/sentencing/article.cfm?messageID=148&categoryId=7 

Mandatory Justice: The Death Penalty Revisited, http://constitutionproject.org/pdf/mandatoryjusticerevisited.pdf

[i] In 1993, the Supreme Court interpreted "second or subsequent" in § 924(c) to refer to convictions on separate counts in the same proceeding.  Deal v. United States, 508 U.S. 129 (1993).