justice safety valve act of 2013 for sale

Sens. Patrick Leahy (D-Vt.) and Rand Paul (R-Ky.) introduced a bill Wednesday designed to give relief to the nation"s bloated prison system by offering judges leeway to consider sentences below the mandatory minimum for all federal crimes.

The bill, named the Justice Safety Valve Act, would expand a current provision in sentencing law, authorizing judges to hand down less harsh sentences if they determine doing so would not jeopardize public safety. Under current law, only certain nonviolent, low-level, first-time drug offenses are subject to sentencing below the federal mandatory minimum.

“As a former prosecutor, I understand that criminals must be held accountable, and that long sentences are sometimes necessary to keep criminals off the street and deter those who would commit violent crimes,” Leahy said in a statement. "Our reliance on mandatory minimums has been a great mistake. I am not convinced it has reduced crime, but I am convinced it has imprisoned people, particularly non-violent offenders, for far longer than is just or beneficial. It is time for us to let judges go back to acting as judges and making decisions based on the individual facts before them. A one-size-fits-all approach to sentencing does not make us safer.”

Leahy has been a vocal proponent of sentencing reform. Earlier this year he called for the total abolition of federal and state mandatory minimum laws.

“Our country’s mandatory minimum laws reflect a Washington-knows-best, one-size-fits-all approach, which undermines the Constitutional Separation of Powers, violates the our bedrock principle that people should be treated as individuals, and costs the taxpayers money without making them any safer," he said. "This bill is necessary to combat the explosion of new federal criminal laws, many of which carry new mandatory minimum penalties.”

In an op-ed in The Hill on Wednesday, Julie Stewart, founder and president of the Families Against Mandatory Minimums Foundation, and Grover Norquist, president of Americans for Tax Reform, both hailed the Justice Safety Valve Act as a "common sense" measure that would save money and help ensure that the "time fits the crime in every criminal case." Their column offered some data on prison capacity and overcrowding:

According to a recent Congressional Research Service (CRS) report, the number of inmates under the Bureau of Prisons’ (BOP) jurisdiction has increased from approximately 25,000 in FY1980 to nearly 219,000 in FY2012. BOP prisons are operating at 38 percent over capacity, endangering the safety of guards and inmates alike. Last week, the Inspector General for the Department of Justice testified that it’s only going to get worse: the BOP projects system-wide crowding to exceed 45 percent over rated capacity through 2018.

"Our justice system’s overreliance on mandatory minimum sentencing is a major reason our prison system incarcerates more people than any other industrialized nation in the world, a disproportionate number of whom are Black and Brown," he said in a statement. "In fact, our overcrowded prisons are almost entirely the result of the mass incarceration of nonviolent drug offenders, who make up nearly half of all federal offenders, not violent criminals."

Congress’s new bipartisan task force on overcriminalization in the justice system held its first hearing earlier this month. It was a timely meeting: national crime rates are at historic lows, yet the federal prison system is operating at close to 40 percent over capacity.

Representative Karen Bass, a California Democrat, asked a panel of experts about the problem of mandatory minimum sentences, which contribute to prison overcrowding and rising costs. In the 16-year period through fiscal 2011, the annual number of federal inmates increased from 37,091 to 76,216, with mandatory minimum sentences a driving factor. Almost half of them are in for drugs.

The problem starts with federal drug laws that focus heavily on the type and quantity of drugs involved in a crime rather than the role the defendant played. Federal prosecutors then seek mandatory sentences against defendants who are not leaders and managers of drug enterprises. The result is that 93 percent of those convicted of drug trafficking are low-level offenders.

Both the Senate and the House are considering a bipartisan bill to allow federal judges more flexibility in sentencing in the 195 federal crimes that carry mandatory minimums. The bill, called the Justice Safety Valve Act, deserves committee hearings and passage soon.

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Proposed in March 2013, the Justice Safety Valve Act would allow federal judges to hand down sentences below current mandatory minimums if: The mandatory minimum sentence would not accomplish the goal that a sentence be sufficient, but not greater than necessary

The factors the judged considered in arriving at the lower sentence are put in writing and must be based on the language is based on the language of 18 U.S.C. § 3553(a)

This proposed updated safety valve would apply to any federal conviction that has been prescribed a mandatory minimum sentence. As written, it would not apply retroactively; inmates already serving a mandatory minimum sentence would not be allowed to request a lesser sentence or re-sentencing based on the Act. It would only apply to federal sentencing; North Carolina would have to enact its own legislation to change state mandatory minimum sentencing.

In 2012, there were 219,000 inmates being held in federal institutions run by the Federal Bureau of Prisons (BOP). In 1980, there were only 25,000. Approximately one-quarter of the Justice Department’s budget is spent on corrections. Over 10,000 people received federal mandatory minimum sentences in 2010.

In addition to these statistics, the application of mandatory minimum sentences leads to absurdly long sentences being imposed, at great taxpayer expense, on non-violent individuals. The organization Families Against Mandatory Minimums (FAMM) details how mandatory minimums have resulted in substantial – and unfair – punishments for low-level crimes, including these two examples: Weldon Angelos: Mr. Angelos was sentenced to 55 years in prison after making several small drug sales to a government informant. Several weapons were found in his home and the informant reported seeing a weapon in Mr. Angelos’ possession during at least two buys. He was charged with several counts of possessing a gun during a drug trafficking offense, leading to the substantial sentence, despite having no major criminal record, dealing only in small amounts of weed, and never using a weapon during the course of a drug transaction.

John Hise: Mr. Hise was sentenced to 10 years on a drug conspiracy charge. He had sold red phosphorous to a friend who was involved in meth manufacturing. Mr. Hise stopped aiding his friend, but not before authorities had caught on. He was convicted and sentenced to 10 years despite police finding no evidence of red phosphorous in his home during a search. Mr. Hise was ineligible for the current safety valve law because of a possession and DUI offense already on his record.

The use of mandatory minimums that allow little discretion for judges to depart to a lower sentence have contributed to the growing prison population and expense of housing those arbitrarily required to spend years in prison. There is certainly room for improvement. Expanding this safety valve to all mandatory minimum sentences would reduce the long-term prison population while still ensuring that the goals of sentencing are met.

The first question a federal judge must consider in deciding whether or not he or she will sentence a person convicted of a federal offense below the mandatory minimum under the proposed Act is whether the mandatory minimum sentence would over punish that person. In other words, would the mandatory minimum put the person in prison for longer than is necessary to meet the goals of sentencing?

The proposed Act would ensure that the goals of sentencing return to the forefront of determining an appropriate prison term rather than substituting the judgment of Congress for that of the presiding judge during the sentencing phase of the federal criminal process.

There are currently just under 200 mandatory minimum sentences for federal crimes on the books, but only federal drug offenses are subject to an existing sentencing safety valve. The actual text of the existing sentencing safety valve can be found at 18 U.S.C. § 3553(f).

In order for a federal judge to apply the existing safety valve to sentencing for a federal drug crime, he or she must make the following findings: No one was injured during the commission of the drug offense

These criteria are strict and minimize the number of people who could be saved from lengthy, arbitrary prison sentences. The legal possession of a gun during the commission of a drug crime has been used to deny the application of the safety valve as has prior criminal history that included only misdemeanor or petty offenses. In effect, the current safety valve legislation allows only about one-quarter of those sentenced on federal drug offenses to take advantage of the deviation from mandatory minimums each year.

Another exception to mandatory minimum sentencing, substantial assistance, is often unavailable to low-level drug offenders. Often those who are tasked with transporting or selling drugs, or who are considered mules, have little if any information about the actual drug ring itself. These people are then not eligible for a reduced sentence below a mandatory minimum because they have no information to provide prosecutors; they are incapable of providing substantial assistance.

Identical versions of the Act were introduced in the House and Senate, H.R. 1695 and S. 619. Both have been referred to the committee for review. The proposed Safety Valve Act would expand the application of the safety valve beyond drug crimes and would allow judges to ensure that sentencing goals are met while not over-punishing individuals and overcrowding the nation’s prison system.

However, the Safety Valve Act is no substitute for an experienced federal defense lawyer on the side of anyone facing federal charges; it is not a get out of jail card. If a judge deviates below mandatory minimums in sentencing, he or she would still be required to apply the federal sentencing guidelines in determining an appropriate sentence.

This informational article about the proposed Justice Safety Valve Act is provided by the attorneys of Roberts Law Group, PLLC, a criminal defense law firm dedicated to the rights of those accused of a crime throughout North Carolina. To learn more about the firm, please like us on Facebook; follow us on Twitter or Google+ to get the latest updates on safety and criminal defense matters in North Carolina. For a free consultation with a Charlotte defense lawyer from Roberts Law Group, please call contact our law firm online.

In this case, our client was charged with First Degree Murder in connection with a “drive-by” shooting that occurred in Charlotte, NC. The State’s evidence included GPS ankle monitoring data linking our client was at the scene of the crime and evidence that our client confessed to an inmate while in jail. Nonetheless, we convinced a jury to unanimously find our client Not Guilty. He was released from jail the same day.

Our client was charged with First Degree for the shooting death related to alleged breaking and entering. The State’s evidence included a co-defendant alleging that our client was the shooter. After conducting a thorough investigation with the use of a private investigator, we persuaded the State to dismiss entirely the case against our client.

After conducting an investigation and communicating with the prosecutor about the facts and circumstances indicating that our client acted in self-defense, the case was dismissed and deemed a justifiable homicide.

Our client was charged with the First Degree Murder of a young lady by drug overdose. After investigating the decedent’s background and hiring a preeminent expert toxicologist to fight the State’s theory of death, we were able to negotiate this case down from Life in prison to 5 years in prison, with credit for time served.

Our client was charged with First Degree Murder related to a “drug deal gone bad.” After engaging the services of a private investigator and noting issues with the State’s case, we were able to negotiate a plea for our client that avoided a Life sentence and required him to serve only 12 years.

On September 18, 2013, the United States Senate Committee on the Judiciary held a hearing entitled, "Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences."

Chairman Leahy, Ranking Member Grassley, and members of the Committee, thank you for the opportunity to provide a written statement for the record for today’s hearing,“Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences.”

Human Rights Watch has been concerned about the flaws in mandatory minimum sentencing schemes for over 15 years. We are very pleased that your Committee is taking up this issue, as we believe it is well past time for Congress to eliminate or significantly restrict mandatory minimum sentences, which we have found often lead to excessive and unfair sentences.

Imprisonment is the most coercive and drastic sanction short of the death penalty that can be lawfully imposed on individuals by government.  International human rights standards, particularly the inherent dignity of the individual, the prohibition on inhuman or degrading punishment, and the right to liberty, require that sentences be proportionate to the gravity of the individual’s conduct and culpability and should be no longer than necessary to further the purposes of punishment.

In 1973, New York enacted harsh mandatory sentencing laws for drug offenses and for second-time felony offenders. The purpose of the drug laws was to deter people from using or selling drugs and to isolate from society those who were not deterred. "It was thought that rehabilitation efforts had failed; that the epidemic of drug abuse could be quelled only by the threat of inflexible, and therefore certain, exceptionally severe punishment."[1]  Strongly supported by Governor Nelson Rockefeller, the new drug laws (commonly referred to as the Rockefeller laws) established a scale of extraordinarily punitive mandatory sentences for the unlawful possession and sale of controlled substances keyed to the weight of the drug involved.

In our report we told the story of Roberta Fowler, a twenty-year-old with two children at the time of sentencing. Fowler had previous convictions for possession of drug paraphernalia, prostitution, and larceny.[3]She received a term of four years to life imprisonment for providing $20 worth of cocaine to an undercover agent. We also noted the case of John Gamble, indicted for selling a $10 vial of crack cocaine to an undercover police officer. He had one prior felony, for possessing a car four days after it was stolen. He had never been imprisoned. Gamble was convicted after trial and received a ten- to-twenty-year sentence for the cocaine sale.[4]

Mandatory minimum sentences — both in New York and, as described below, elsewhere — often result in sentences that are disproportionate to the offense.   The mandatory minimum sentences in New York were punishing people whose actions caused minimal harm, while at the same time having little deterrent effect.

The tide has turned in New York — the state began moving away from its Rockefeller drug laws in the 2000s, first by reducing the length of many mandatory minimums in 2004 and subsequently by completely eliminating many of these excessive mandatory minimums in 2009.[5]Crime rates in the state continue to drop after the elimination of these sentences.[6]

Mandatory sentencing at the federal level has been particularly common for drug-related crimes. 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.[8]  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.[9]

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 one ounce) received a mandatory minimum sentence.[10]  Harsh penalties based solely on drug type and quantity fail to distinguish between varying levels of culpability, and fail to ensure that those who occupy more senior positions in criminal organizations receive higher sentences than peripheral participants.

Mandatory minimum sentencing laws bear heavy responsibility for distortions in federal sentencing, including sentences that are disproportionately severe relative to the individual crime and the offender’s culpability. By enacting an increasing number of mandatory minimums, Congress has deprived federal judges of the ability to calibrate sentences according to the specific conduct and culpability of the individual defendant, taking into account the purposes of sentencing. As a practical matter, sentencing decisions have been transferred from an independent judiciary with no personal stake in the outcome of a case to prosecutors, representatives of the executive branch with personal as well as institutional interests in securing convictions. Their choices as to what offenses to charge —and what plea bargains to accept —dictate the sentence.

In the federal system, prosecutors also have the authority under the law to file motions in court that mandatorily increase a defendant’s sentence upon conviction based upon certain facts, e.g. past record or possession of a gun in furtherance of a crime. At the prosecutors’ discretion, federal drug offenders facing a ten-year mandatory minimum sentence can have their sentence mandatorily doubled to twenty years because of a prior drug conviction; and their sentence can metastasize into a life sentence if they have two prior drug convictions, as shown in the case of Roy Lee Clay:

Roy Lee Clay, 48 years old, was sentenced by a federal court on August 27, 2013 to life behind bars. He was convicted after trial of one count for a conspiracy to distribute one kilogram or more of a mixture or substance containing heroin.  According to the prosecutors he was part of a heroin distribution group centered in Baltimore, Maryland. He obtained heroin in New York between 2009 and 2011 and distributed it to other dealers and to users as well. The mandatory minimum sentence for distributing one kilogram of heroin is ten years.  But Clay had two prior drug convictions – one a 1993 federal conviction for possession with intent to distribute 100 grams of heroin and a state drug distribution conviction in 2004– that made him eligible for a mandatory sentence enhancement to life.  The prosecutors sought the enhancement and the judge had no choice but to impose that sentence, even though at sentencing she indicated that she thought a thirty year sentence would have been more appropriate.[11]

Federal law also mandates additional consecutive sentences for drug offenders who possess firearms in connection with their drug crimes.[12]The guns do not have to be used, brandished or discharged and the gun offenses can all be part of the same case. Indeed, defendants who possess guns can have gun offenses attached to a conspiracy to commit a drug crime and to the offense of committing that crime. The first gun violation carries a five-year mandatory penalty consecutive to the drug sentence; the second gun offense, and every subsequent one, carries a twenty-five year consecutive sentence. The total sentence adds up quickly:

Rick Barton sold oxycontin and cocaine in rural Virginia and West Virginia, and at least four times accepted guns as payment for drugs. He was convicted after trial and sentenced to 1020 months (85 years) in prison: 60 months for his conviction of possession with intent to distribute the drugs and 960 months for his conviction on four counts for possessing guns in furtherance of his drug business.[13]

Mandatory minimums have not only given prosecutors unprecedented power to determine what a defendant’s sentence will be, they have ratcheted up the power of prosecutors to secure guilty pleas from federal drug defendants.  In 2012, 97 percent of all federal drug convictions were the result of pleas.[14]Regardless of their innocence, the strength of their case, or the weakness of the prosecutor’s case, most defendants cannot risk trial because they will face a far greater sentence if convicted after trial than if they plead guilty.

Finally, proponents of mandatory minimums suggest that these sentences help to promote public safety, yet the available evidence shows otherwise. Seventeen states have curtailed or eliminated their mandatory minimum laws and their crime rates have continued to decline.[15]

Though Congress is late to reforms, we have been encouraged by recent steps in the direction of sentencing reform. The Fair Sentencing Act of 2010 reduced the statutory penalties for crack offenses by increasing the quantity threshold required to trigger a mandatory sentence. It also repealed the federal five-year mandatory minimum for simple possession of crack cocaine —the first federal repeal of a mandatory minimum since the 1970s.[16]

Senators Rand Paul and Patrick Leahy have introduced the Justice Safety Valve Act, improving on the current federal “safety valve,” which exempts certain drug offenders from otherwise applicable mandatory minimum sentences if their crime is minor, involves no violence, the offender has no or a negligible prior criminal record, and the offender is willing to provide information to the government. Welcome as the existing safety valve is, it leaves far too many defendants subject to mandatory sentence. The Justice Safety Valve Act would be a substantial improvement as it would give sentencing flexibility to judges in a much broader number of cases involving mandatory minimums. Senators Dick Durbin and Mike Lee have also proposed improvements to the safety valve through their recently introduced Smarter Sentencing Act.

In August 2013, US Attorney General Eric Holder instructed federal prosecutors to try to avoid charges carrying mandatory minimum sentences for certain low-level, nonviolent drug offenders and to refrain from seeking sentencing enhancements based on prior convictions unless the defendant’s conduct warranted such severe sentences.[17]

We recommend that Congress continue this momentum and follow the lead of the many states that have decided to eliminate or significantly restrict mandatory minimum sentences.

To the extent that mandatory minimums remain in place, we further recommend that Congress ensure through legislation that the minimum sentences be calculated to be proportionate to the least serious conduct covered by the statute and no greater than necessary to achieve the legitimate goals of punishment.

Congress should eliminate mandatory enhancements based on prior records, and eliminate mandatory consecutive sentences based on firearms or any other additional factor. Judges can take prior records into account in fashioning proportionate sentences.

Congress should establish broader safety valve provisions that authorize judges to sentence below the mandatory minimum, including sentences to probation and community supervision, if the individual circumstances of the case and the individual characteristics of the offender merit such a reduction to serve the interests of justice and further the goals of punishment and a higher sentence would be greater than necessary to further those goals.

[2]Human Rights Watch, Cruel and Usual: Disproportionate Sentences for New York Drug Offenders, vol. 9, no. 2 (B), March 1997, https://www.hrw.org/reports/1997/usny.

[5]Madison Gray, “A Brief History of New York’s Rockefeller Drug Laws,” Timemagazine, April 2, 2009, http://content.time.com/time/nation/article/0,8599,1888864,00.html(accessed September 17, 2013).

[6]Timothy O’Connor and Tim Henderson, “New York drug-law reforms, drop in crime reduce prison population,” Journal News, http://www.lohud.com/article/20111016/NEWS02/110160330/New-York-drug-law... (accessed September 17, 2013).

[7]United States Sentencing Commission, “Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System,” October 2011, p. 71.

[9]United States Sentencing Commission, 2012 Sourcebook of Federal Sentencing Statistics,http://www.ussc.gov/Research_and_Statistics/Annual_Reports_and_Sourceboo...(accessed September 17, 2013),Table 43.

[10]United States Sentencing Commission, “Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System,” October 2011, p.168, Figures 8-11.

[11]United States v. Garcia, et al,no. 11-cr-0569-CCB (D. Md. 2013); see alsoIan Duncan, “Heroin dealer gets mandatory term of life without parole,” Baltimore Sun, August 27, 2013, http://www.baltimoresun.com/news/maryland/crime/blog/bs-md-ci-heroin-dea... (accessed September 17, 2013).

[14]United States Sentencing Commission, 2012 Sourcebook of Federal Sentencing Statistics, http://www.ussc.gov/Research_and_Statistics/Annual_Reports_and_Sourceboo...(accessed September 17, 2013).

[15]Julie Stewart, “Mandatory Ineffectiveness,” U.S. News & World Report, September 2, 2013,http://www.usnews.com/opinion/articles/2013/09/02/eric-holder-is-right-t... (accessed September 17, 2013).

[17]“Attorney General Delivers Remarks at the Annual Meeting of the American Bar Association’s House of Delegates,” United States Department of Justice press release,  August 12, 2013, http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130812.html (accessed September 17, 2013).  The criteria for this policy to apply would exclude a substantial share of cases, so it is unclear how significant of an impact this change will have.

A functioning justice system must work to protect the innocent, while simultaneously holding accountable and rehabilitating those who commit crimes. We must comprehensively overhaul a criminal justice system that, in its current form, is guided by outdated laws and perpetuates structural failures in society. Our judicial system sets up those who have offended and served their sentences to continued failure, even after they have served their time.

As a nation, we incarcerate more of our own citizens than any other country in the world – often times for non-violent drug offenses. Past reforms meant to keep our communities safer have resulted in disproportionately high incarceration rates among people of color, splitting families apart and helping to continue cycles of poverty. Despite the creation of innovative tools at the local level in King County to institute diversionary “safety valve” mental health, drug rehabilitation, and veterans treatment courts, these resources do not currently exist at the federal level. Communities of color still face disproportionate mandatory minimum sentences, with charges often stacking on top of one another. The vast majority of inmates leaving prison face long-term unemployment, with employers often unwilling to consider them due to their records.

As a former prosecutor, I have had a unique exposure to the intricacies of our judicial system. The men and women who work in law enforcement, as prosecutors, public defenders, judges, and corrections officers shoulder the immense duty of keeping our communities safe. These individuals must uphold this responsibility while at the same time assuring that the system remains fair and balanced, and that individuals are treated and judged equally under the law. The time has come to make important adjustments to the way we handle criminal justice in our country.

Overhauling Our Judicial System: Cosponsor of H.R. 2435, the Justice Safety Valve Act –Federal mandatory minimums must be rolled back. These laws have created massive disparities, with communities of color facing dramatically higher rates of incarceration. This bill would allow judges to break from mandatory minimum penalties, assessing lower sentences where appropriate. I have consistently opposed any legislation that imposes new mandatory minimums – this one size fits all approach cannot continue.

Ending Private Prisons and Restoring Fairness to the System: Cosponsor of H.R. 3227, the Justice is Not For Sale Act - As a country, we must end the practice of turning the incarceration of citizens into a business transaction. I am an original cosponsor of the Justice is Not For Sale Act. This legislation, also introduced by Senator Bernie Sanders in the U.S. Senate, would end all private prison contracts at the federal, state, and local level – including immigration detention facilities. H.R. 3227 would also reinstate the federal parole system to allow the US Sentencing Commission to make individualized, risk-based determinations regarding each prisoner.

Ending Racial Profiling: Original Cosponsor of H.R. 1498, the End Racial Profiling Act – legislation prohibiting any law enforcement agent or agency from engaging in racial profiling, and also allows for any individual injured by racial profiling the right to file a lawsuit. H.R. 1498 requires federal law enforcement to develop and maintain policies to eliminate profiling, and require state/local/tribal law enforcement agencies who apply for certain federal grants to develop similar policies.

Ensuring Transparency: Original Cosponsor of H.R. 1870, the Police Training and Independent Review Act –To receive federal law enforcement grants under this bill, states must pass laws requiring the appointment of a special prosecutor to review cases where an officer is a defendant, including officer-involved shootings. It also requires training on racial and ethnic bias at law enforcement academies.

Providing Legal Help to Those In Need:I support funding for Legal Services Corporation (LSC), the single largest funder of civil legal aid for low-income Americans and signed on to a letter to appropriators asking to increase their funding for the LSC and voted against amendments that would have shifted funding away.

Helping With Reentry: Cosponsor of H.R. 2899, the Second Chance Act -legislation that would reauthorize the Second Chance Act, which continues funding for reentry programs at the state and local levels that have been proven to reduce recidivism, lead to better outcomes for those released from prison, and lower the amount our nation spends on incarceration. We lock up more of our own people than any other country in the world.

Equal Employment Opportunities through Banning the Box: Cosponsor of H.R. 1905, the Fair Chance Act -This “ban the box” legislation prohibits federal agencies and primary federal contractors from asking about an applicant’s criminal history on an initial employment application. This legislation allows applicants who have completed their prison sentences to build a strong foundation for a career.

Leadership at the federal level is critical to ensure wider enactment of restorative justice programs like those spearheaded by Washington State. As we work towards common-sense reforms to our criminal justice system, I greatly value the continuing information, opinions and experiences shared with me by my constituents about these critical topics. We must chart a new course if we are to build a stronger tomorrow.

Everyone has the right to be treated equally under the law and to have the peace of mind that they and their loved ones will not be subject to excessive use of force or bias by law enforcement. It is critical that trust exists between law enforcement and the communities they serve.

In order to rebuild and preserve relationships between the judicial and law enforcement systems and the communities, it is crucial that safety and transparency are prioritized. While the vast majority of law enforcement officers in our country operate with the highest degree of professionalism and without bias, the specter of racial profiling has greatly impacted relationships with some communities of color. It is critical that we address the underlying issues that have created such divides.

It is for that reason that I have cosponsored legislation that would establish pilot grant programs through the Department of Justice (DOJ) using existing funding to assist state, local, and tribal law enforcement agencies with the costs of purchasing or leasing Body Worn Cameras (BWCs). In the wake of the recent alarming events involving law enforcement across the country, body-worn cameras have emerged as a potentially powerful transparency tool to communities, as well as police officers. The use of cameras is not a perfect solution, and the DOJ must conduct studies on the impact of BWCs on not only reducing excessive use of force by police, but also increasing accountability of officers, the effects of BWCs on both officer safety and public safety, and best practices for data management.

I also support and have cosponsored legislation designed to enforce the constitutional right to equal protection of the laws by changing the policies and procedures underlying the practice of profiling, such as the End Racial Profiling Act. I have consistently supported programs such as the Byrne Justice Assistance Grants (JAG) and Community Oriented Policing Services (COPS) programs to improve the support and responsiveness that police agencies can provide to the communities they serve. The Byrne JAG program provides support for many parts of the criminal justice system, including community-based criminal justice initiatives, crime prevention education, hiring patrol officers, and programs such as veterans treatment courts. Byrne JAG also supports anti-human trafficking training for local departments to identify and rescue victims through coordination with federal law enforcement and victims service providers. The COPS Office and its corresponding programs provide invaluable resources and technical assistance to state and local law enforcement agencies. It is essential, now more than ever, that these programs be used to encourage reforms, increase training for law enforcement officers, and create trust through community outreach.

I am committed to working with my colleagues to find additional avenues to protect civil liberties, increase transparency, and work to address bedrock issues that have frayed the trust between law enforcement and communities in many parts of the country.

There is a rapidly growing opioid abuse epidemic in our nation and the need for comprehensive treatment has never been greater. The abuse and addiction to opioids such as heroin, morphine, and prescription pain relievers is a serious problem that affects the health, social, and economic welfare of all societies. According to the 2013 National Survey on Drug Use and Health 1.9 million people in the United States suffered from substance use disorders related to prescription opioid pain medicines in 2013 and 517,000 suffered from a heroin use disorder. The number of unintentional overdose deaths from prescription opioids has soared in recent years, more than multiplying since 1999.

This crisis has had a devastating effect on public health and safety in communities across the United States. According to the Centers for Disease Control and Prevention (CDC), drug overdose deaths now surpass traffic crashes in the number of deaths caused by injury in the U.S, with an average of 120 drug related deaths per day in 2014. Factors such as drastic increases in the number of prescriptions written and dispensed and greater social acceptability for using medications for different purposes has contributed to the growing epidemic of opioid addictions.

While I ultimately am pleased that Congress has begun to address the serious and growing challenge posed by the abuse of prescription and illicit opioids in this country with the passage of the Comprehensive Opioid Abuse Reduction Act in May 2016, the compromise bill failed to include additional emergency funding to support new programs. It is absolutely essential that we recognize the evidence-based fact that remanding these individuals to jail and prison is structurally, as well as morally, wrong. Funding grant programs and other new initiatives is a critical responsibility of Congress that cannot be ignored. More can and must be done to make this a truly comprehensive approach.

On November 6, 2012, Washington State voters approved Initiative Measure 502 concerning recreational use of marijuana with 55.7 percent of the vote. The Washington State Liquor and Cannabis Board is responsible for issuing licenses for growing, producing, and selling marijuana.

Looking at the legal implications of this issue, I am deeply concerned about the conflicts between federal and state law. While it is legal to possess and use a limited quantity of marijuana under state law, marijuana remains an illegal substance under federal statutes. This lack of clarity is unacceptable. Individuals following state law should not be subject to federal enforcement. As Washington state’s marijuana law continues to be implemented, it is critical that the confusion and disagreement between federal and state laws be reconciled.

Though much work remains to be done, the Drug Enforcement Administration’s (DEA) decision to expand research opportunities on marijuana is a sign of progress. It is my sincere hope that the loosening of the National Institute on Drug Abuse (NIDA) research monopoly will foster new information, and further the conversations about federal-level policy.

While the limited enforcement direction that the DOJ has taken is a positive step, I remain concerned about possible prosecution of Washington State residents who are acting in accordance with state law. I have contacted DOJ numerous times about this issue, and along with other Members of Congress, asking that the DOJ respect voters acting in accordance with state laws, and not enforce federal marijuana laws on those in compliance. I have also spoken directly with officials in the White House and DOJ expressing my concerns. I am committed to protecting the rights of residents in Washington State, and will continue to look for any avenue to ensure legal clarity when it comes to marijuana use.

This is a brief discussion of the law associated with themandatory minimum sentencing provisions offederal controlled substance(drug)lawsanddrug-related federal firearms and recidivist statutes.Thesemandatory minimums, however, are not as mandatory as they might appear.The government may elect not to prosecute the underlying offenses.Federal courtsmaydisregardotherwise applicable mandatory sentencing requirementsat the behest of the government.Thefederal courtsmay also bypasssome ofthemfor the benefit of certain low-level, nonviolent offenders withvirtually spotlesscriminal recordsunder the so-called"safety valve" provision.Finally, in cases where the mandatory minimums would usually apply, thePresident may pardon offenders or commute their sentences before the minimum term of imprisonment has been served.Be that as it may,sentencing in drug cases,particularlymandatory minimum drug sentencing, hascontributedtoan explosion in thefederal prison population and attendant costs.Thus, the federal inmate population at the end of 1976 was 23,566, and at the end of 1986 it was 36,042.OnJanuary 4, 2018,the federal inmate population was 183,493.As of September 30, 2016, 49.1% of federal inmates were drug offenders and 72.3% of those were convicted of an offense carrying a mandatory minimum.In 1976, federal prisons cost $183.914 million; in 1986, $550.014 million; and in 2016, $6.751 billion (est.).

Federal mandatory minimum sentencing statutes have existed since the dawn of the Republic. When the first Congress assembled, it enacted several mandatory minimums, each of them a capital offense.

Then, in 1984, Congress enacted the Sentencing Reform Act that created the United States Sentencing Commission and authorized it to promulgate then binding sentencing guidelines.

The hate crime legislation enacted in 2009 directed the U.S. Sentencing Commission to submit a second report on federal mandatory minimums.Booker decision and its progeny, the Guidelines became but the first step in the sentencing process.

The second Commission report recommended that Congress consider expanding eligibility for the safety valve, and adjusting the scope, severity, and the prior offenses that trigger the recidivist provisions under firearm statute

In October 2017, the commission issued a third report devoted exclusively to mandatory minimum penalties for drug offenses, in which it made no recommendations.

3. Offenses carrying a drug mandatory minimum penalty were used less often, as the number and percentages of offenders convicted of an offense carrying a mandatory minimum penalty has decreased since fiscal year 2010.

4. While fewer offenders were convicted of an offense carrying a mandatory minimum penalty in recent years, the offenses of those who were tended to be more serious.

6. Statutory relief plays a significant role in the application and impact of drug mandatory minimum penalties, and results in significant reduced sentences when applied.

7. Additionally, drug mandatory minimum penalties appear to provide criminal defendants with a significant incentive to provide substantial assistance to the government pursuant to 18 U.S.C. § 3553(e) and the related guideline provisions of USSG §5K1.1.

8. However, neither the statutory safety valve provision at 18 U.S.C. § 3553(f), nor the substantial assistance provision of 18 U.S.C. § 3553(e) fully ameliorate the impact of drug mandatory minimum penalties on relatively low-level offenders.

10. Although likely due in part to an older age at release, drug trafficking offenders convicted of an offense carrying a drug mandatory minimum penalty had a lower recidivism rate than those drug trafficking offenders not convicted of such an offense.

Trafficking lesser amounts of 841(b)(1)/960(b) substances; other Schedule I or II substances; analogues; or date rape drugs: if death or serious injury results

Section 841(a) outlaws knowingly or intentionally manufacturing, distributing, dispensing, or possessing with the intent to distribute or dispense controlled substances except as otherwise authorized by the Controlled Substances Act.

The government may establish the knowledge element of Section 841(a) in either of two ways. First, the "knowledge requirement may be met by showing that the defendant knew he possessed a substance listed on the [controlled substance] schedules."

When a defendant claims no guilty knowledge, the circumstances may warrant a willful blindness instruction to the jury. The willful blindness instruction, sometimes called the deliberate ignorance or "ostrich head in the sand" instruction, is warranted if "(1) the defendant claims lack of knowledge; (2) the evidence would support an inference that the defendant consciously engaged in a course of deliberate ignorance; and (3) the proposed instruction, as a whole, could not lead the jury to conclude that an inference of knowledge is mandatory."

Manufacture: For purposes of Section 841(a), ""manufacture" means the production … or processing of a drug, and the term "production" includes the manufacture, planting, cultivation, growing, or harvesting of a controlled substance."

Distribute or Dispense: The Controlled Substances Act defines the term "distribute" broadly. The term encompasses any transfer of a controlled substance other than dispensing it.

Possession with Intent to Distribute or Dispense: The government may satisfy the possession element with evidence of either actual or constructive possession.

The escalating mandatory minimums that apply to offenders with "a prior conviction for a felony drug offense" extend to those offenses classified as misdemeanors under state law, but punishable by imprisonment for more than a year.

Sentencing for violations of Section 841(a) is governed by the nature and volume of the substance involved, the defendant"s criminal record, and injuries attributable to the offense.

The eight substances are heroin, powder cocaine, cocaine base (crack), PCP, LSD, fentanyl, methamphetamine, and marijuana. Criminal penalties related to each substance provide one set of mandatory minimums for trafficking in a very substantial amount listed in Section 841(b)(1)(A), and a second, lower set of mandatory minimums for trafficking in a lower but still substantial amount listed in Section 841(a)(1)(B). The first set (841(b)(1)(A) level) features the following thresholds:heroin - 1 kilogram;

A Section 841(a) violation involving one of the eight drugs at the higher 841(b)(1)(A) level is punishable by imprisonment for:not less than 10 years;

a mandatory term of life imprisonment if the offender has a prior felony drug conviction and the offense resulted in death or serious bodily injury or if the offender has two or more prior felony drug convictions.

A Section 841(a) violation involving one of the eight drugs in lesser amounts, or some other Schedule I or II drug, or a date rape drug is punishable by imprisonment for:not less than 20 years if death or serious bodily injury results; and

The felony drug convictionsthat trigger the sentencing enhancementinclude federal, state, and foreign convictions.The "serious bodily injury" enhancement is confined to bodily injuries which involve"(A) a substantial risk of death;(B) protracted and obvious disfigurement; or(C) protracted loss or impairment of the function of a bodily member, organ, or mental faculty."And, the "if death results" enhancement is availableonlyif the drugs provided by the defendant were the "but-for" cause of death;it is not available if the drugs supplied were merely a contributing cause.The same "but for" standard presumably applies with equal force to the "serious bodily injury" enhancement.

To prove an attempt to violate Section 841(a) "the government must establish beyond a reasonable doubt that the defendant (a) had the intent to commit the object crime and (b) engaged in conduct amounting to a substantial step towards its commission. For a defendant to have taken a substantial step, he must have engaged in more than mere preparation, but may have stopped short of the last act necessary for the actual commission of the substantive crime."

Conspiracy is an agreement to commit a crime.i.e., an agreement to distribute the drugs; (2) that the defendant knew of the conspiracy; and (3) that the defendant intentionally joined the conspiracy."

Although it technically demonstrates an agreement to distribute a controlled substance, proof of a small, one-time sale of a controlled substance is ordinarily not considered sufficient for a conspiracy conviction. "[T]he factors that demonstrate a defendant was part of a conspiracy rather than in a mere buyer/seller relationship with that conspiracy include: (1) the length of affiliation between the defendant and the conspiracy; (2) whether there is an established method of payment; (3) the extent to which transactions are standardized; (4) whether there is a demonstrated level of mutual trust; (5) whether the transactions involved large amounts of drugs; and (6) whether the defendant purchased his drugs on credit."

Trafficking offenses that ordinarily do not trigger mandatory minimum sentences may do so if they involve special circumstances. Thus, trafficking to pregnant women,

Section 960 sets the penalties for three categories of offenses: (1) importing or exporting a controlled substance in violation of 21 U.S.C. § 825 (labeling and packaging), § 952 (importing controlled substances), § 953 (exporting controlled substances), or § 967 (smuggling controlled substances); (2) possession of a controlled substance aboard a vessel or aircraft in violation of 21 U.S.C. § 955; and (3) possession with intent to distribute in violation of 21 U.S.C. § 959.

Of these, violations of Sections 952 and 959 appear to be the most commonly prosecuted. "To sustain a conviction for the importation of a controlled substance[under Section 952], the government must prove: (1) the defendant played a role in bringing a quantity of a controlled substance into the United States; (2) the defendant knew the substance was controlled; and (3) the defendant knew the substance would enter the United States."

Section 963 outlaws attempts and conspiracies to violate the prohibitions covered by Section 960, and calls for the same penalties, including mandatory minimums, as apply to the underlying substantive offenses.

The term "vessel subject to the jurisdiction of the United States" includes vessels within U.S. territorial or customs waters, and vessels of foreign registration or vessels located in foreign territorial waters when the foreign nation has consented to application of U.S. law, as well as vessels for which no claim of registration or false claim of registration is presented.

Section 960a doubles the otherwise applicable mandatory minimum sentence for drug trafficking (including an attempt or conspiracy to traffic) when the offense is committed in order to fund a terrorist activity or terrorist organization.

Conviction of a Continuing Criminal Enterprise (CCE or Drug Kingpin) offense results in imposition of a 20-year mandatory minimum; the mandatory minimum for repeat offenders is 30 years.

To secure a conviction, the government must establish, "1) a felony violation of the federal narcotics laws; 2) as part of a continuing series of three or more related felony violations of federal narcotics laws; 3) in concert with five or more other persons; 4) for whom [the defendant] is an organizer, manager or supervisor; [and] 5) from which [the defendant] derives substantial income or resources."

The homicide mandatory minimum found in the drug kingpin statute sets a 20-year minimum term of imprisonment for killings associated with a kingpin offense or for killings of law enforcement officers associated with certain other controlled substance offenses.

Section 924(c), in its current form, establishes one of several different minimum sentences when a firearm is used or possessed in furtherance of another federal crime of violence or drug trafficking. The mandatory minimums must be imposed in addition to any sentence imposed for the underlying crime of violence or drug trafficking and vary depending upon the circumstances:imprisonment for not less than five years, unless one of the higher mandatory minimums below applies;

imprisonment for life if the offender has a prior conviction for violation of Section 924(c) and if the firearm is a machine gun or destructive device or is equipped with a silencer.

Section 924(c) outlaws possession of a firearm in furtherance of, or use of a firearm during and in relation to, a predicate offense. A "firearm" for purposes of Section 924(c) includes not only guns ("weapons ... which will or [are] designed to or may readily be converted to expel a projectile by the action of an explosive"), but silencers and explosives as well.

Section 924(c) is triggered when a firearm is used or possessed in furtherance of a predicate offense. The predicate offenses are crimes of violence and certain drug trafficking crimes. The drug trafficking predicates include any felony violation of the Controlled Substances Act, the Controlled Substances Import and Export Act, or the Maritime Drug Law Enforcement Act.

The "in furtherance" component compels the government to show some nexus between possession of a firearm and a predicate offense – that is, to show that the firearm furthered, advanced, moved forward, promoted, or in some way facilitated the predicate offense.

Although the Supreme Court has determined that acquiring a firearm in an illegal drug transaction does not constitute "use" in violation of Section 924(c),

The "use" outlawed in the use or carriage branch of Section 924(c) requires that a firearm be actively employed "during and in relation to" a predicate offense – that is, either a crime of violence or a drug trafficking offense.

A firearm is used or carried "during and in relation" to a predicate offense when it has "some purpose or effect with respect" to the predicate offense; "its presence or involvement cannot be the result of accident or coincidence."

The basic five-year mandatory minimum penalty for using, carrying, or possessing a firearm in the course of a predicate offense becomes a seven-year mandatory minimum if a firearm was brandished during the course of the offense and becomes a 10-year mandatory minimum if a firearm was discharged during the course of the offense.Alleynev. United States must be presented to the jury and proven beyond a reasonable doubt.

For some time, Section 924(c) consisted of a single long paragraph with brandishing, discharging, short barrels, semiautomatics, machine guns, and bombs all in the same paragraph. When Congress added the "possession in furtherance" language, it parsed the section. Now, the general, brandish, and discharge mandatory penalties provisions appear in one part.

The circuits are apparently divided over the question of whether the government must show that the defendant knew that the firearm at issue was of a particular type (i.e., short-barreled rifle or shotgun, machine gun, or bomb).

Prior to the division, the Supreme Court had identified as an element of a separate offense (rather than a sentencing factor) the question of whether a machine gun was the firearm used during and in relation to a predicate offense.

As a general rule, anyone who commands, counsels, aids, or abets the commission of a federal crime by another is punishable as though he had committed the crime himself.

The Supreme Court has said in Rosemond v. United States that to aid or abet a violation of Section 924(c), the assistance may be shown to have advanced either the predicate offense or the firearm use.

The penalties under Section 924(c) were once flat sentences. For example, the penalty for use of a firearm during the course of a predicate offense was a five-year term of imprisonment.

A number of defendants have sought refuge in the clause of Section 924(c), which introduces the section"s mandatory minimum penalties with an exception: "[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law." Defendants at one time argued that the mandatory minimums of Section 924(c) become inapplicable when the defendant was subject to a higher mandatory minimum under the predicate drug trafficking offense under the Armed Career Criminal Act (18 U.S.C. § 924(e)), or some other provision of law.Abbottv. United States.

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years.... 18 U.S.C. § 924(e)(1).

Section 924(e) begins with unlawful possession of a firearm ("a person who violates section 922(g)"). The threshold possession offense need not itself involve a drug or violent crime.

There is "no authority to ignore [an otherwise qualified] conviction because of its age or its underlying circumstances. Such considerations are irrelevant ... under the Act."

The section defines serious drug offenses as those violations of state or federal drug law punishable by imprisonment for 10 years or more.Conviction under a statute which carries a 10-year maximum for repeat offenders qualifies, even though the maximum term for first-time offenders is five years.

The term "serious drug offense" includes attempts or conspiracies to commit a serious drug offense, as long as the attempt or conspiracy is punishable by imprisonment for 10 years or more.

The Supreme Court in Johnson v. United States found unconstitutionally vague Section 924(e)"s violent felony residual clause ("the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year … that … involves conduct that presents a serious potential risk of physical injury to another.").

Low-level drug offenders can escape some of the mandatory minimum sentences for which they qualify under the safety valve found in 18 U.S.C. § 3553(f). Congress created the safety valve after it became concerned that the mandatory minimum sentencing provisions could have resulted in equally severe penalties for both the more and the less culpable offenders.

The safety valve is not available to avoid the mandatory minimum sentences that attend other offenses, even those closely related to the covered offenses. Section 860 (21 U.S.C. § 860), which outlaws violations of Section 841 near schools, playgrounds, or public housing facilities and sets the penalties for violation at twice what they would be under Section 841, is not covered. Those charged with a violation of Section 860 are not eligible for relief under the safety valve provisions.

For the convictions to which the safety valve does apply, the defendant must convince the sentencing court by a preponderance of the evidence that he satisfies each of the safety valve"s five requirements.

The safety valve has two disqualifications designed to reserve its benefits to the nonviolent. One involves instances in which the offense resulted in death or serious bodily injury. The other involves the use of violence, threats, or the possession of weapons. The weapon or threat of violence disqualification turns upon the defendant"s conduct or the conduct of those he "aided or abetted, counseled, commanded, induced, procured, or willfully caused."

The Sentencing Guidelines define "serious bodily injury" for purposes of Section 3553(f)(3) as an "injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation."

The Guidelines disqualify anyone who acted as a manager of the criminal enterprise or who receives a Guideline level increase for his aggravated role in the offense.

The most heavily litigated safety valve criterion requires full disclosure on the part of the defendant. The requirement extends not only to information concerning the crimes of conviction, but also to information concerning other crimes that "were part of the same course of conduct or of a common scheme or plan," including uncharged related conduct.

Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant"s substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.

The substantial assistance provision was enacted with little fanfare in the twilight of the 99th Congress as part of the wide-ranging Anti-Drug Abuse Act of 1986, legislation that established or increased a number of mandatory minimum sentencing provisions.

As a general rule, a defendant is entitled to a sentence below an otherwise applicable statutory minimum under the provisions of § 3553(e) only if the government agrees.

Any sentence imposed below the statutory minimum by virtue of Section 3553(e) must be based on the extent of the defendant"s assistance; it may not reflect considerations unrelated to such assistance.e.g., "offense-level-based reductions, month-based reductions, and percentage-based reductions."

The substantial assistance exception makes possible convictions that might otherwise be unattainable. Yet, it may also lead to "inverted sentencing," that is, a situation in which "the more serious the defendant"s crimes, the lower the sentence – because the greater his wrongs, the more information and assistance he had to offer to a prosecutor"; while in contrast the exception is of no avail to the peripheral offender who can provide far less substantial assistance.

Defendants sentenced to mandatory minimum terms of imprisonment have challenged their sentences on a number of constitutional grounds beginning with Congress"s legislative authority and ranging from cruel and unusual punishment through ex post facto and double jeopardy to equal protection and due process. Each constitutional provision defines outer boundaries that a mandatory minimum sentence and the substantive offense to which it is attached must be crafted to honor.

Many of the federal laws with mandatory minimum sentencing requirements were enacted pursuant to Congress"s legislative authority over crimes occurring on the high seas or within federal enclaves,

"The Congress shall have Power ... To regulate Commerce with Foreign Nations, and among the several States, and with Indian Tribes."United States v. Lopez, "[f]irst, Congress may regulate the use of the channels of interstate commerce.... Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.... Finally, Congress"s commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce."

Applying these standards, the LopezCourt concluded that the Commerce Clause did not authorize Congress to enact a particular statute which purported to outlaw possession of a firearm on school property. Because the statute addressed neither the channel