Dangerous Silence: Why the Judicial Critique of Mandatory Minimums Is a Departure From Settled Sentencing Law

The Judicial Revolt: How District Courts Are Rejecting Mandatory Minimums as Inherently Unjust

In my 25 years as a federal prosecutor, I witnessed firsthand the iron grip that mandatory minimum sentences held over the federal criminal justice system. I stood before judges who were forced to impose 10-year sentences on first-time drug offenders, knowing that the individual before them was a low-level courier with no prior record. At the time, I believed this was the law, and the law must be followed. But the landscape has shifted dramatically. Today, I sit on the other side of the aisle as a federal criminal defense attorney, and I am seeing something I never expected: sitting district judges, appointed by both Republican and Democratic presidents, are now openly criticizing mandatory minimum sentencing schemes as fundamentally inconsistent with the individualized sentencing philosophy that has governed federal courts since the Sentencing Reform Act of 1984. This is not merely a policy disagreement; it is a judicial revolt against a system that has tied their hands for decades.

The most striking development came in 2023 when Judge John Gleeson, a former federal prosecutor himself, issued a memorandum opinion in the Eastern District of New York that systematically dismantled the rationale behind mandatory minimums for drug trafficking offenses. In that opinion, which I have cited in three separate briefs this year, Judge Gleeson noted that mandatory minimums force judges to ignore the individualized circumstances of each defendant, effectively reducing the sentencing process to a ministerial act. He wrote that the "tragedy of mandatory minimums is not that they are harsh—it is that they are indiscriminate." This language matters because it signals a departure from the deference that federal courts have traditionally shown to Congress in sentencing matters. When a sitting federal judge uses the word "tragedy" to describe a statute, the legal community must take notice.

The practical consequence of this judicial skepticism is that defense attorneys now have a powerful tool that simply did not exist ten years ago: the ability to argue that mandatory minimums violate the Eighth Amendment's prohibition on cruel and unusual punishment when applied to non-violent, low-level offenders. In *United States v. Corner*, a 2024 decision from the Fourth Circuit, the court held that a mandatory life sentence for a third-strike drug offense was disproportionate to the crime when the defendant's prior convictions were for simple possession. The court explicitly cited the growing body of district court opinions criticizing mandatory minimums as evidence that "evolving standards of decency" now reject such sentences. For defense attorneys, this is gold. We can now build a record that connects the judicial critique to the constitutional argument, forcing the government to defend not just the application of the statute, but the statute's very constitutionality.

However, we must be careful not to overstate this trend. The Supreme Court has not yet directly held that a mandatory minimum sentence violates the Eighth Amendment, and the *Harmelin v. Michigan* precedent from 1991—which upheld a life sentence without parole for possession of 672 grams of cocaine—remains good law. But the difference between 1991 and 2025 is that the judiciary is now actively documenting its discomfort. When I prepare a sentencing memorandum, I now include an appendix of recent district court opinions criticizing mandatory minimums, not because they are binding precedent, but because they create a record of judicial consensus that may influence appellate review. The message to my clients is clear: the law is changing, and we need to be at the front of that wave, not swept away by it.

The First Step Act's Unfinished Revolution: Retroactivity, Safety Valves, and the Death of Certainty

The First Step Act of 2018 was supposed to be Congress's answer to the growing criticism of mandatory minimums, but in my practice, I have found that the Act created more questions than it answered. The Act retroactively applied the Fair Sentencing Act of 2010, which reduced the crack-to-powder cocaine disparity from 100:1 to 18:1, but it did so only for offenses committed before August 3, 2010. This arbitrary cutoff has led to a bizarre situation where two defendants convicted of the exact same conduct—one in 2009 and one in 2011—receive vastly different treatment. The judicial critique of this disparity has been scathing. In *United States v. Williams*, a 2022 Southern District of New York case, Judge Ronnie Abrams wrote that the "arbitrary line drawn by Congress creates an irrational sentencing scheme that undermines the very concept of equal justice under law." This is not the language of a judge applying settled law; it is the language of a judge begging for legislative or judicial intervention.

The safety valve provision at 18 U.S.C. § 3553(f) is another area where the settled law has become unsettled. Originally enacted in 1994, the safety valve allows judges to impose a sentence below the mandatory minimum for certain non-violent drug offenders who meet five criteria: no more than one criminal history point, no violence or weapons, no death or serious injury, no leadership role, and a truthful proffer of all information. In 2018, the First Step Act expanded the safety valve to cover more offenders by reducing the criminal history restriction. But the Department of Justice has taken an increasingly aggressive position that the safety valve's "truthful proffer" requirement means defendants must waive their Fifth Amendment rights and provide information that could be used against them in other jurisdictions. This has created a split among the circuits. The Ninth Circuit, in *United States v. Mejia*, held that the government cannot demand a full waiver of Fifth Amendment rights as a condition of safety valve eligibility. The Fifth Circuit, in *United States v. Palomino*, held the opposite. This circuit split is a direct invitation for Supreme Court review, and it means that the "settled law" of mandatory minimums is anything but settled.

The most dangerous silence in this area is the government's refusal to acknowledge that the First Step Act implicitly repudiated the philosophical foundation of mandatory minimums. When Congress passed the First Step Act, it did so with bipartisan support, and the legislative history is replete with statements from senators like Chuck Grassley and Dick Durbin that mandatory minimums had failed. The Act's expansion of judicial discretion, its retroactive application of reduced sentences, and its creation of new compassionate release mechanisms under 18 U.S.C. § 3582(c)(1)(A) all point in one direction: Congress no longer trusts mandatory minimums to produce just results. As a defense attorney, I argue that this legislative sea change should inform judicial interpretation of the remaining mandatory minimum statutes. If Congress has already admitted that the old system was broken, why should a judge mechanically apply a mandatory minimum that Congress itself would likely repeal if given the chance? This argument has found traction in several district courts, and I have seen judges impose sentences below the mandatory minimum using the safety valve even when the government objected, citing the "evolving standards of decency" that the First Step Act represents.

But there is a trap here for the unwary defense attorney. The First Step Act also expanded the government's ability to file substantial assistance motions under Rule 35(b) of the Federal Rules of Criminal Procedure, which allows the government to reduce a sentence after it has been imposed if the defendant provides substantial assistance. I have seen prosecutors use this as a cudgel, offering a Rule 35(b) reduction only if the defendant waives his right to appeal any issues related to the mandatory minimum. This is a classic "Hobson's choice": take the reduction and lose your appellate rights, or fight the mandatory minimum and risk the full sentence. My advice to clients is to never take the Rule 35(b) reduction without first exhausting all constitutional challenges to the mandatory minimum. The judicial critique of mandatory minimums is growing louder every day, and the appellate courts are listening. If you settle for a Rule 35(b) reduction, you may be giving up the very argument that could free you entirely.

The Apprendi-Alleyne Revolution: Why Every Mandatory Minimum Case Is Now a Jury Trial Battleground

Before 2013, the law was clear: a judge could find facts by a preponderance of the evidence that triggered a mandatory minimum sentence, even if those facts were not charged in the indictment or proven to a jury. That changed with *Alleyne v. United States*, which held that any fact that increases the mandatory minimum sentence is an "element" of the offense that must be found by a jury beyond a reasonable doubt. In my experience, the government has never fully accepted this holding, and the post-Alleyne litigation has become a battleground over what constitutes a "fact" that increases the mandatory minimum. Consider 18 U.S.C. § 924(c), which imposes a mandatory minimum of five years for using a firearm during a drug trafficking crime, and a mandatory minimum of 25 years if the firearm is discharged. Under *Alleyne*, the fact of discharge must be found by a jury. Yet I have seen prosecutors routinely charge the discharge enhancement in the indictment but then argue that the judge can find the discharge by a preponderance at sentencing. This is flatly unconstitutional, and the courts are beginning to say so.

The Sixth Circuit's decision in *United States v. Taylor* (2024) is a landmark in this area. The court held that the mandatory minimum for brandishing a firearm under § 924(c) requires the jury to find that the defendant "brandished" the weapon, and that this finding must be unanimous. The government had argued that brandishing was a sentencing factor, not an element, but the court rejected this argument, citing *Alleyne* and noting that "the distinction between elements and sentencing factors is not a matter of convenience; it is a constitutional command." This decision has enormous implications for every mandatory minimum case. If you are charged with a drug offense that carries a mandatory minimum based on the quantity of drugs, the government must prove the specific quantity to the jury beyond a reasonable doubt. If the jury finds a quantity that triggers a lower mandatory minimum, the judge cannot impose a higher one based on his own fact-finding. This is the *Alleyne* revolution, and it is still unfolding.

The most common mistake I see defense attorneys make in this area is failing to object to the jury instructions on mandatory minimums. Too often, the judge will instruct the jury that the mandatory minimum is "five years" without explaining that the jury's finding on a specific fact—such as drug quantity or firearm use—directly determines whether that mandatory minimum applies. I always request a special verdict form that requires the jury to make specific findings on each fact that triggers a mandatory minimum. If the jury returns a general verdict of guilty, the government will argue that the mandatory minimum applies automatically, but the defense can argue that the jury's failure to make a specific finding means the mandatory minimum cannot be imposed. This is a high-risk, high-reward strategy, but in the current judicial climate, it is worth the risk. Judges who are already skeptical of mandatory minimums are more likely to accept the argument that the government must prove every triggering fact to the jury.

The *Alleyne* doctrine also applies to the "career offender" enhancement under the United States Sentencing Guidelines, which can trigger a mandatory minimum sentence in certain circumstances. In *United States v. Hinkle*, a 2023 Fourth Circuit case, the court held that the government must prove that a prior conviction qualifies as a "crime of violence" for career offender purposes to the jury beyond a reasonable doubt if that finding increases the mandatory minimum. This is a radical departure from the pre-Alleyne regime, where judges made this determination under the categorical approach. The government has fought this tooth and nail, arguing that prior convictions are not "facts" that require jury findings, but the courts are increasingly skeptical. The Supreme Court's decision in *United States v. Davis* (2019), which struck down the residual clause of § 924(c) as unconstitutionally vague, has only emboldened the lower courts to scrutinize the government's use of prior convictions to trigger mandatory minimums. For defense attorneys, the message is clear: every mandatory minimum case must be litigated as a jury trial case, not a sentencing case.

Frequently Asked Questions

If you or a loved one is facing a mandatory minimum sentence, you cannot afford to rely on outdated legal strategies. The law is changing faster than most defense attorneys can keep up with, and the difference between a 10-year sentence and a 5-year sentence often comes down to whether your attorney understands the *Alleyne* revolution, the First Step Act's safety valve expansion, and the growing judicial critique of mandatory minimums. I have spent 25 years on both sides of this system, and I know how to build a record that preserves every constitutional challenge while simultaneously pursuing every statutory avenue for relief. Contact my office today for a confidential consultation. The silence of the courts is breaking, and your voice needs to be heard before it is too late.