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US: Over-Criminalization Task Force Should Examine Federal Sentencing Practices

Letter to Congressmen James Sensenbrenner and Bobby Scott

Human Rights Watch sent the following letter to members of the US Congress, regarding the scope of the new Congressional Over-Criminalization Task Force.


The Honorable James Sensenbrenner
Committee on the Judiciary
US House of Representatives
2449 Rayburn House Office Building
Washington, DC 20515

The Honorable Bobby Scott
Committee on the Judiciary
US House of Representatives
1201 Longworth House Office Building
Washington, DC 20515

RE: Scope of Over-Criminalization Task Force

Dear Chairman Sensenbrenner and Ranking Member Scott:

Thank you for agreeing to lead the task force created by “The Over-Criminalization Task Force Resolution of 2013.” The growing national awareness that the federal prison system is unnecessarily large and unduly costly is a welcome development for all who care about the careful and cost-effective use of the federal power to write criminal laws and to arrest, convict, and sentence those who break them. 

At the same time, if the task force is to be effective, it needs to tackle multiple flawed facets of the criminal justice system, including not only overcriminalization but also federal sentencing practices.

Accordingly, Human Rights Watch urges the task force to include the length and fairness of federal prison sentences on its agenda. We recognize that some committee members may be primarily motivated by strong concerns about fiscal prudence, limited government, and strict liability crimes. Certainly, egregious examples of overcriminalization abound. They include cases like that of George Norris, the nursery owner who imported orchids and due to a paperwork misunderstanding ended up serving 17 months in federal prison.[1]

But the plethora of new federal crimes is not what drives the soaring number of federal prisoners. The federal prison population has grown an astonishing 790 percent since 1980 primarily because Congress increased the number of federal offenses subject to mandatory minimum prison sentences and eliminated parole—and not simply because it created more federal offenses.[2]

Data from the Bureau of Prisons reveals that almost 50 percent of the federal prison population is serving a sentence for drugs, another 12 percent for immigration offenses, and eight percent for robbery, burglary, and other property offenses.[3] In 2012, six out of ten federal defendants were prosecuted either for drugs or immigration offenses. Defendants prosecuted for fraud, non-fraud white collar, and “other” crimes constituted 24 percent of the federal cases.[4] (We do not have data indicating how many of those defendants were prosecuted for strict liability offenses.)

Federal prisoners serve long sentences. More than four out of ten are serving sentences of 10 years or longer.[5] One of the reasons federal prisoners serve such long sentences is because of mandatory minimum sentences. In fiscal year 2012, while the average sentence length of all federal offenders was 48 months, the average prison term of those sentenced to a mandatory minimum sentence was 139 months.[6]

Sixty percent of federal drug offenders in fiscal year 2012 received a mandatory sentence, accounting for three-quarters of all federal defendants receiving a mandatory minimum sentence.[7] More than a quarter of federal drug offenders (28 percent) received five-year mandatory minimum sentences; almost one-third (32 percent) received 10-year mandatory minimum sentences. [8]

When Congress enacted mandatory minimum sentences for federal drug offenders in 1986 and 1988, it intended those sentences to punish major traffickers and kingpins.  But because the sentences are triggered by drug quantities involved in the offense and not by role in drug hierarchies, even low-level offenders receive them. For example, more than two-thirds (68 percent) of street-level dealers (i.e., those who sell directly to users in quantities of less than once ounce) received at least a mandatory minimum sentence.[9] Their average sentence was 77 months.[10]

We believe the statistics noted above suggest the failure of federal sentences to meet basic criminal justice standards. Many federal sentences violate the core concept of proportionality—that the punishment should match the crime and culpability of the offender. Many federal sentences are also far longer than necessary to further the goals of punishment.[11] This is particularly true for defenders facing mandatory minimum sentences because the laws prevent judges from exercising their traditional role of ensuring sentences crafted to take into account the unique circumstances of each case. Across the country, states are revising their criminal codes and practices in recognition of the fact that prison is often an unnecessarily harsh and even counterproductive sanction for low-level offenders.  

The members of this task force have taken on a task of great importance. You have a unique opportunity to recalibrate federal punishments for particular offenses so that they promote public safety, respect for the law, and the well-being of the country’s communities. To meet that opportunity, you should incorporate into your work an evidence-based review of the costs and benefits of mandatory minimum sentences for federal offenders. What this committee does may have an enormous impact both on the lives of those who break federal laws and on their families. But more is at stake as well—including public faith in the integrity of the federal criminal justice system.

We look forward to continuing this discussion further as the task force undertakes its mandate.



Jamie Fellner
Senior Advisor, US Program
Human Rights Watch

CC: Members of the House Over-Criminalization Task Force


[1] Andrew M. Grossman, The Heritage Foundation, “The Unlikely Orchid Smuggler: A Case Study in Overcriminalization,” July 27, 2009, June 11, 2013).

[2] Nathan James, Congressional Research Service, “The Federal Prison Population Buildup: Overview, Policy Changes, Issues, and Options,” January 22, 2013, June 11, 2013).

[3] “Quick Facts about the Bureau of Prisons,” last updated May 25, 2013, June 11, 2013).

[4] United States Sentencing Commission, “2012 Sourcebook of Federal Sentencing Statistics,” (accessed June 11, 2013), see Figure A.

[5] “Quick Facts about the Bureau of Prisons.”

[6] United States Sentencing Commission, “2012 Sourcebook of Federal Sentencing Statistics,”, see Table 43. United States Sentencing Commission, “Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System,” October 2011, p. 136.

[7] United States Sentencing Commission, “Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System,” p. 122.

[8] United States Sentencing Commission, “2012 Sourcebook of Federal Sentencing Statistics,”, see Table 43.

[9] United States Sentencing Commission, “Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System,” p. 168, figures 8-11.

[10] Ibid. “Couriers” transport or carry drugs using a vehicle or other equipment; “mules” carry drugs internally or on their person.

[11] See Imposition of a Sentence, 18 USC 3553(a): “The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.”

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