Report on Mandatory Sentences - Law Reform Commission

2.115 In 1986, following public outcry regarding the crack cocaine epidemic and, in particular, the
spread of AIDS through drug use, Congress passed the Anti-Drug Abuse Act 1986. 250 Congress
expedited the passage of the Act in response to a number of events, including the highly publicized death
of the Boston Celtics’ player, Len Bias, in 1986. 251
2.116 The Anti-Drug Abuse Act 1986 established a new regime of non-parolable, mandatory minimum
sentences for drug trafficking offences that linked the minimum penalty to the quantity of drugs involved in
the offence. 252 The 1986 Act sought to subject larger drug dealers to a 10-year mandatory minimum
sentence for a first offence and a 20-year mandatory minimum sentence for a subsequent conviction of
the same offence. One kilogramme or more of a mixture or substance containing heroin triggered a 10-
year sentence, as did five kilogrammes or more of a mixture or substance containing cocaine. The Act
also sought to cover mid-level players by providing for a mandatory minimum sentence of five years
which was triggered by weights such as 100 grammes or more of a mixture or substance containing
heroin and 500 grammes or more of a mixture or substance containing cocaine. A second conviction for
these offences carried a 10-year minimum sentence.
2.117 Controversially, the 1986 Act distinguished between powder cocaine and cocaine base,
commonly known as “crack” cocaine, by treating quantities of cocaine base differently to similar quantities
of powder cocaine. 253 At the time, crack cocaine was considered to be more dangerous than powder
cocaine due to its especially harmful effects on communities where its use had become increasingly
prevalent. Thus, for example, under the so-called “100-to-1” ratio, five grammes of crack cocaine
triggered a mandatory minimum sentence of five years while 500 grammes of powder cocaine were
required to trigger the same sentence. In addition, the 1986 Act increased the penalty enhancements
applicable to offenders who sold drugs to persons under 21 years; who employed persons under 18
years; and who possessed certain weapons. 254
2.118 In 1988, Congress passed the Omnibus Anti-Drug Abuse Act 1988. 255 The 1988 Act introduced a
mandatory minimum sentence of five years’ imprisonment for simple possession of more than five
grammes of crack cocaine. In addition, the Act doubled the existing 10-year mandatory minimum
sentence to a 20-year mandatory minimum sentence for engaging in a continuing drug enterprise. The
Act also extended the mandatory minimum sentences applicable to completed distribution and
importation/exportation offences to conspiracies to commit those offences, regardless of the particular
offender’s level of culpability. 256 It has been noted that this measure (designed to catch drug kingpins,
250
251
252
253
254
255
256
Mascharka “Mandatory Minimum Sentences: Exemplifying the Law of Unintended Consequences” [2001] 28
Florida State University Law Review 935 at 941.
<strong>Report</strong> to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (United States
Sentencing Commission, 2011) at 23.
Special <strong>Report</strong> to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (United
States Sentencing Commission, 1991) at Chapter 2.
<strong>Report</strong> to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (United States
Sentencing Commission, 2011) at 24-25.
Special <strong>Report</strong> to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (United
States Sentencing Commission, 1991) at Chapter 2.
<strong>Report</strong> to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (United States
Sentencing Commission, 2011) at 25; and Special <strong>Report</strong> to Congress: Mandatory Minimum Penalties in the
Federal Criminal Justice System (United States Sentencing Commission, 1991) at Chapter 2.
Special <strong>Report</strong> to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (United
States Sentencing Commission, 1991) at Chapter 2; and Mascharka “Mandatory Minimum Sentences:
Exemplifying the Law of Unintended Consequences” [2001] 28 Florida State University Law Review 935 at
941.
73