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Mandatory Minimum Reform is Slow in Coming

North Carolina has structured sentencing, which has been in effect for crimes committed in the last 20 years. Before 1994, the state used Fair Sentencing, and before 1980, the state used a pre-Fair sentencing regime about which I know very little.

Structured sentencing was designed to introduce consistency into the system, to eliminate parole (and replace it with post-supervision release), and to create clarity – truth-in-sentencing – so that when the judge handed down the sentence, everyone in the courtroom knew that at least the minimum would be served.

Over time, North Carolina’s legislature has chipped away at the structure. DWIs were excluded from the system, in order that they be punished more harshly. Today we have six levels of a DWI, where a person can theoretically get up to 3 years if convicted of an Aggravated Level One DWI.

But the key deviation from the structured nature of our sentencing scheme is through mandatory minimums. I was asked recently to list the ways in which mandatory minimums (outside of the basic structured sentencing scheme) impact North Carolina law, and I can think of two ways.

First, forcible rape is punishable by a mandatory minimum of 25 years in prison, regardless of what the sentencing guidelines state.

Second, and more problematically, North Carolina drug trafficking offenses have mandatory minimums. These minimums exist for those substances that a person possessed, transported, or sold in which the quantity exceeds certain arbitrary weights or amounts established by the legislature.

If convicted of a trafficking offense, a judge may not impose a non-active sentence unless the person participates in substantial assistance. Substantial assistance (or “snitching”) in many counties requires that the person plead in to the drug trafficking offense before the assistance is given: so in a sense, the person agrees to serve the mandatory minimum, and is hoping that his or her information will be sufficient to warrant a reduction in the sentence below the minimum, or, if possible, to probation.

Federal criminal law has even more draconian mandatory minimums that can result in outrageous sentences for what would otherwise be comparatively minor participation in a larger drug conspiracy.

Families Against Mandatory Minimums has fought for years against mandatory minimums, which take discretion out of the hands of judges, place enormous discretion in the hands of prosecutors whose charging decisions can crush a defendant. For a list of recent reforms, see this PDF.

The good news is reform is coming, at least in other states. And some efforts are being made at the federal level to create “safety valves” to escape the mandatory minimum dilemma.

The bad news is that basic distrust of the judiciary means that legislators still hew to the view that mandatory minimums are good policy.



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