concurring separately.
I am obligated by the force of precedent to concur in the court’s judgment in this matter. I write separately to comment upon the operation of the mandatory minimum set forth by Congress in 18 U.S.C. § 924(e)(1). In my opinion, it is a travesty to sentence Rudolph to a mandatory term of fifteen years imprisonment for possession of an old shotgun which he may not even have intended to use.1
In its headlong rush to appear tough on crime, Congress has enacted approximately 100 mandatory minimum penalties in over sixty criminal statutes. Congress apparently believes that stiff mandatory penalties deter would-be criminals. No less an authority than the United States Sentencing Commission has recently questioned this premise. See generally Michael Tonry, Mandatory Minimum Penalties and the U.S. Sentencing Commission’s “Mandatory Guidelines”, 4 Fed. Sentencing Rptr. 129 (1991).
Rather than create a uniform system of punishment, mandatory mínimums enhance sentencing disparity. See id. at 130-32. They transfer sentencing discretion from the court to the prosecutor. Id. at 130, 132. Prosecuting attorneys “often do not file charges that carry mandatory míni-mums when the evidence would have supported such charges” and “us[e] the mandatory provisions tactically to induce guilty pleas.” Id. at 130. Where possible, judges “often impos[e] sentences less severe than applicable mandatory provisions would appear to require.” Id. Perhaps as a result, “substantial unwarranted disparities exis[t] in sentencing of defendants to whom mandatory mínimums appl[y].” Id.
This case reflects the unfairness inherent in these mandatory minimum sentences. *471In another jurisdiction, perhaps, an overworked prosecutor might have struck a deal or left it to the state to prosecute.2 Perhaps another defense attorney might have pressed for a deal, rather than incur the risk of a trial. Neither eventuality occurred in this case. Rudolph will go to prison for fifteen years.
This punishment, quite simply, is wholly out of proportion to the crime.3 Rudolph will likely spend much of the remainder of his life in jail. He will pay and pay for, in the words of the majority, his “seeming incapacity to learn from his past mistakes.” Supra at 470. His family will pay. And so will the public.4 Nevertheless, this is the sentencing regime with which we are stuck until Congress, in its finite wisdom, changes its mind.
. As the majority opinion points out, Rudolph apparently knew that the gun was in the truck. He told his probation officer that it was broken and he intended to get it fixed. P.S.R. at 3. A police officer who test-fired the shotgun, however, found that the weapon was operational. Id. The jury chose not to credit the conflicting evidence as to Rudolph’s possession.
. Possession of a firearm by a prior convicted felon is a Class C felony under North Dakota law. N.D.Cent.Code § 62.1-02-01 (1985 & Supp.1991). The maximum penalty Rudolph would have faced under state law is five years in prison, a 55,000 fine, or both. N.D.Cent.Code § 12.1-32-01.4 (1985).
. Rudolph has 17 prior convictions, 14 of which are for burglary and three of which are for larceny. Although he has poor judgment and an inability to consider the consequences of his actions, his criminal history reveals no physical threats of violence. P.S.R. at 9-10. In addition, Rudolph is mildly mentally retarded. See Sentencing Tr. at 18, 31; P.S.R. at 9. Faced with this record, the district judge would have considered a more lenient sentence, had he not been hampered by the operation of the statutory mandatory minimum. See Sentencing Tr. at 36.
. The average cost of incarceration in a federal facility is $17,909 per prisoner per year. See, e.g., United States v. Quarles, 955 F.2d 498, 505 n. 6 (8th Cir.1992) (Bright, J., concurring and dissenting).