justice safety valve act free sample

Past blogs have referenced the differences between State and Federal court but perhaps the biggest difference is the mandatory minimum sentences for certain criminal offenses.  These statutory requirements mean that an individual will serve at least the minimum required time, regardless of what their guideline range may be in the Federal system.  For example, an individual could commit a criminal offense that requires a minimum of 5 years in the Federal Bureau of Prisons and an additional 4 years on supervised release (much like Federal home detention, which is considered a restricted sentence), meaning an “executed” sentence of around 9 years. This same individual might have a limited criminal history or other factors (such as acceptance of responsibility point reductions or providing assistance to the government reductions) that place them in a guideline range of 63-78 months (or 5.25-6.5 years).  Under the current Federal system, a sentencing Judge is required to sentencing an individual to the mandatory minimum and then determine whether an additional sentence is appropriate without regard to the minimum.

Currently there is legislation introduced titled the Justice Safety Valve Act which would allow a sentencing Judge to give a sentence different from the mandatory minimum.  In order to deviate, a Judge must first give both the US Government and the Defendant notice and opportunity to respond.  Should the Judge proceed forward with a deviation, the Court would be required to explain, in writing, why the mandatory minimum term does not fulfill one of the purposes of punishment set by Congress in 18 USC 3553 (e.g. rehabilitation, public safety, just punishment, crime deterrence).  The US Government can appeal the Judge’s decision to disregard the mandatory minimum sentence if they so choose.

The benefits to this deviation are not new to the Federal system, but only limited to specific drug offenses.  Under 18 USC 3553(f) there exists the aptly named “Safety Valve” provision that permits a Judge to deviate from the mandatory minimum if:

While the legislation is still in the early stages, with many changes likely to come, that Congress is looking toward such reform provides more hope for those accused of a Federal offense from facing the impactful collateral consequences of a Federal conviction. If you or somebody you know has recently been convicted of a crime or has questions about the appellate process, contact the experienced criminal defense attorneys at Banks & Brower, LLC.  We are available at all times by calling us at 317-870-0019 or by emailing info@banksbrower.com.

A “safety valve” is an exception to mandatory minimum sentencing laws. A safety valve allows a judge to sentence a person below the mandatory minimum term if certain conditions are met.  Safety valves can be broad or narrow, applying to many or few crimes (e.g., drug crimes only) or types of offenders (e.g., nonviolent offenders). They do not repeal or eliminate mandatory minimum sentences. However, safety valves save taxpayers money because they allow courts to give shorter, more appropriate prison sentences to offenders who pose less of a public safety threat. This saves our scarce taxpayer dollars and prison beds for those who are most deserving of the mandatory minimum term and present the biggest danger to society.

The Problem:Under current federal law, there is only one safety valve, and it applies only to first-time, nonviolent drug offenders whose cases did not involve guns. FAMM was instrumental in the passage of this safety valve, in 1994. Since then, more than 95,000 nonviolent drug offenders have received fairer sentences because of it, saving taxpayers billions. But it is a very narrow exception: in FY 2015, only 13 percent of all drug offenders qualified for the exception.

Mere presence of even a lawfully purchased and registered gun in a person’s home or car is enough to disqualify a nonviolent drug offender from the safety valve,

Even very minor prior infractions (e.g., careless driving) that resulted in no prison time can disqualify an otherwise worthy low-level drug offender from the safety valve, and

The Solution:Create a broader safety valve that applies to all mandatory minimum sentences, and expand the existing drug safety valve to cover more low-level offenders.

Earlier this year, we wrote about a proposed bill that could have a significant impact on criminal sentencing in Oklahoma. We were excited about House Bill 1518, because, if passed, it would allow Oklahoma judges discretion in sentencing, even for convictions that carried mandatory minimum sentences. The Justice Safety Valve Act would allow judges to deviate from statutory mandatory minimums under certain conditions where the imposition of the minimum sentence would not be in the best interest of justice.

Critics of the bill say that allowing judges to deviate from minimum sentencing would create too much leniency for convicted criminals, particularly for repeat offenders. However, as Rep. Pam Peterson, the bill"s sponsor pointed out, the law does not require any judge to hand down a lighter sentence. It merely provides the option for judges to take a closer look at the offender, the offense, and whether or not justice would be served by the mandatory minimum.

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.

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.

The Supreme Court has reinforced the theory of the First Amendment as a "safety valve," reasoning that citizens who are free to to express displeasure against government through peaceful protest will be deterred from undertaking violent means. The boundary between what is peaceful and what is violent is not always clear. For example, in this 1965 photo, Alabama State College students participated in a non-violent protest for voter rights when deputies confronted them anyway, breaking up the gathering. (AP Photo/Perry Aycock, used with permission from the Associated Press)

Under the safety valve rationale, citizens are free to make statements concerning controversial societal issues to express their displeasure against government and its policies. In assuming this right, citizens will be deterred from undertaking violent means to draw attention to their causes.

The First Amendment, in safeguarding freedom of speech, religion, peaceable assembly, and a right to petition government, embodies the safety valve theory.

These and other decisions rest on the idea that it is better to allow members of the public to judge ideas for themselves and act accordingly than to have the government act as a censure. The Court has even shown support in cases concerning obscenity or speech that incites violent action. The safety valve theory suggests that such a policy is more likely to lead to civil peace than to civil disruption.

Justice Louis D. Brandeis recognized the potential for the First Amendment to serve as a safety valve in his concurring opinion in Whitney v. California (1927) when he wrote: “fear breeds repression; . . . repression breeds hate; . . . hate menaces stable government; . . . the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and the fitting remedy for evil counsels is good ones.”

This article was originally published in 2009. John Omachonu, Ph.D., is an educator, broadcast media practitioner, and teacher, who for more than two decades, taught college-level courses in mass media law and ethics. He is committed to the tenets, principles and practices of the First Amendment. Send Feedback on this article

UPDATE: Although the Justice Safety Valve Act of 2013 was not enacted, it was reintroduced in Congress in 2015. Read our post about its newest version, or, for other developments, see a list of all our posts on bills in Congress.

The Justice Safety Valve Act of 2013 gives judges discretion to not abide by a mandatory minimum if they believe the mandatory minimum is unjustly high.

In the current system, the prosecutor has broad discretion over what to charge a defendant with. They often have the option of charging a defendant for a crime with a high mandatory minimum or prosecuting for a lesser offense. This subverts the justice system as it was intended to function because originally the judge (not the prosecution) was supposed to decide what the most just sentence was. Now, the prosecution can decide what to charge a defendant with, and the judge is forced to follow the mandatory minimum of the charges the prosecution chose.

The Act requires the submission of several reports to review the BOP"s implementation of the law and assess the effects of the new risk and needs assessment system.

More than a year after it was enacted in 2018, key parts of the law are working as promised, restoring a modicum of fairness to federal sentencing and helping to reduce the country’s unconscionably large federal prison population. But other parts are not, demonstrating the need for continued advocacy and more congressional oversight. The way the Justice Department has been handling prisoner releases during the coronavirus pandemic gives some insight into what’s going wrong.

President Trump has bragged about signing the law, which was the first criminal justice reform bill passed in nearly a decade. But simply signing it is not enough. He needs to see it through.

The First Step Act is the product of years of advocacy by people across the political spectrum. Indeed, a very similar bipartisan bill nearly passed in 2015, but was dragged down by election-year politics. The Trump administration began working on its own criminal justice bill in early 2018, and an initial deal was catalyzed by a core group of bipartisan legislators. It was then refined through a series of compromises and, once the Senate decided to pick up the bill, sailed through both houses of Congress with supermajority support.

The law we now know as the First Step Act accomplishes two discrete things, both aimed at making the federal justice system fairer and more focused on rehabilitation.

Its sentencing reformcomponents shorten federal prison sentences and give people additional chances to avoid mandatory minimum penalties by expanding a “safety valve” that allows a judge to impose a sentence lower than the statutory minimum in some cases. These parts of the First Step Act are almost automatic: once the act was signed, judges immediately began sentencing people to shorter prison terms in cases came before them. Similarly, people in federal prison for pre-2010 crack cocaine offenses immediately became eligible to apply for resentencing to a shorter prison term.

The law’s prison reformelements are designed to improve conditions in federal prison in two ways. One is by curbing inhumane practices, such as eliminating the use of restraints on pregnant women and encouraging placing people in prisons that are closer to their families. The other is by reorienting prisons around rehabilitation rather than punishment. That is no small task. Successfully expanding rehabilitative programming in federal prison will require significant follow-through from Congress and the Department of Justice. It’s no surprise, then, that these distinct parts of the act are functioning differently.

Before 2010, an offense involving 5 grams of crack cocaine, a form of the drug more common in the Black community, was punished as severely as one involving 500grams of powder. The Fair Sentencing Act of 2010 changed that, reducing this 100:1 disparity to 18:1 — but only on a forward-going basis. People convicted under the now-outdated crack laws were stuck serving the very sentences that Congress had just repudiated.

The First Step Act fixed that by making the Fair Sentencing Act retroactive. According to the Justice Department, as of May, roughly 3,000 people serving outdated sentences for crack cocaine crimes had already been resentenced to shorter prison terms. Shortened or bypassed mandatory minimums mean that every year another estimated 2,000 people will receive prison sentences 20 percent shorter than they would have.

Another 3,100 people were released in July 2019, anywhere from a few days to a few months early, when the First Step Act’s “good time credit fix” went into effect. This simple change allowed people in federal prison to earn approximately an extra week off their sentence per year — and it applied retroactively, too. For some people it meant seeing their friends and family months earlier than expected.

Taken together, these changes represent an important decrease in incarceration. One year after the First Step Act was signed, the federal prison population was around 5,000 people smaller, continuing several years of declines. It has continued to shrink amidst the coronavirus pandemic.

To be sure, there’s still a long way to go: the federal prison population remains sky-high. And the Department of Justice does not appear to be in complete lockstep with the White House’s celebration of the law. In some old crack cocaine cases, federal prosecutors are opposing resentencing motions or seeking to reincarcerate people who have just been released. Prosecutors in these cases argue that any motions for resentencing must also consider the (often higher) amount of the drug the applicant possessed according to presentence reports. Other technical disputes are also cropping up, with the Department of Justice often arguing for a narrow interpretation of the First Step Act.

The First Step Act calls for the Bureau of Prisons to significantly expand these opportunities. Within a few years, the BOP must have “evidence-based recidivism reduction programs and productive activities” available for allpeople in prison. That means vocational training, educational classes, and behavioral therapy (to name a few options recommended in the act) should be staffed and broadly available. Participating in these programs will in turn enable imprisoned people to earn “time credits” that they can put toward a transfer to prerelease custody — that is, a halfway house or even home confinement — theoretically allowing them to finish their sentence outside of a prison.

Rolling out this system as intended will be a challenge, however, in part because BOP programs are already understaffed and underfunded. Around 25 percent of people spending more than a year in federal prison have completed zeroprograms. A recent BOP budget document described a lengthy waiting list for basic literacy programs. And according to the Federal Defenders of New York, the true extent of the BOP’s programming shortfall isn’t even known, because the BOP won’t share information on programming availability or capacity. The bureau offered little insight into its existing capacity and needs at a pair of congressional oversight hearings last fall. Worse, a recent report from the First Step Act’s Independent Review Committee, made up of outside experts to advise and assist the government with implementing the law, casts doubt on the quality of the BOP’s existing programming.

The BOP’s lack of transparency also makes it hard to know how “time credits” are being awarded — and thus, whether the BOP is permitting people to make progress toward prerelease custody as Congress intended. The First Step Act provides that most imprisoned people may earn 10 to 15 days of “time credits” for every 30 days of “successful participation” in recidivism-reduction programming. But a recent report suggests the BOP will award a specific number of “hours” for each program. How many “hours” make up a “day,” for the purpose of awarding credits? This highly technical issue may appear trivial, but could significantly affect the reach of the First Step Act.

People with inside knowledge of the system point to other concerns, too. The law excludes some imprisoned people from earning credits based on the crime that led to their incarceration or their role in the offense, and some advocates report that the BOP has applied those exclusions broadly, disqualifying a much larger part of the imprisoned population than Congress intended. Advocates also have heard that program availability in prisons is much spottier than the BOP has suggested, rendering illusory the DOJ’s claim that people are already being assigned to programs and “productive activities” tailored to their needs.

Any expansion of programming also won’t be free. Knowing that, the First Step Act authorized $75 million per year for five years for implementation. But authorization is only the beginning of the budgeting process. Congress must also formally appropriate money to the BOP to fund the First Step Act for each year that it is authorized.

Thankfully, in December 2019, Congress passed and the president signed the Consolidated Appropriations Act, which included full funding for the First Step Act through the end of the current fiscal year. That makes up for a bumpy start: last year, Congress failed to appropriate anything at all, forcing the DOJ to use $75 million from elsewhere in its budget to cover the temporary shortfall.

While this new funding is good news, it still might not be enough. According to a member of the Independent Review Committee, full implementation may cost closer to $300 million. After factoring in “training, staffing, [and] building things like classrooms,” he says, $75 million simply may not be enough. But any more substantial funding seems unlikely to materialize: in a recent budget, the White House sought nearly $300 million to fund improvements related to the law, of which only $23 million was earmarked for programming.

In late March, the Justice Department appeared to finally acknowledge the need to transfer people in federal prison to home confinement to keep them safe from the coronavirus. But transfers have been slow, and a recent report from ProPublica shows one reason why.

The DOJ prioritized transfers for people deemed to pose a “minimum” risk of recidivism under a new system developed for the First Step Act. But that system, called “PATTERN,” has never been perfect, and appears to have been quietly revised to make it more difficult to reach a “minimum” score — and by extension, that much harder to win a transfer to home confinement. This revelation offers the latest example of how the First Step Act’s implementation has proceeded in fits and starts.

The process of developing that tool has not gone smoothly. The first version unveiled by the DOJ, in July 2019, appeared to use a method for calculating “risk” that overstated the actual risk of re-offending among formerly incarcerated people, exaggerated racial disparities, and gave people only marginal credit for completing education, counseling, and other programs while in prison. Taken together, the tool gave short shrift to the idea that people can change while in prison — the very premise of the First Step Act.

Early this year, the DOJ shared what seemed like good news: PATTERN, it said, had been improved to partially address some of the concerns raised by the Brennan Center and others. But the tool continued to use an overly broad definition of recidivism. And while the DOJ claimed it introduced changes to reduce racial disparities, it did not release data on the revised tool’s actual effect on racial disparities. As a result, imprisoned people, families, lawyers, and advocates were all concerned when the DOJ announced it would use PATTERN to help determine who would be transferred out of federal prison during the pandemic.

Those concerns were justified. It now seems that the BOP changed PATTERN more significantly than they initially disclosed to make it much harder to qualify as a “low” or “minimum” risk. (A DOJ report, released a week after ProPublica’s story, suggests that the impact of these changes was relatively small, but offers limited data, and — still — provides no analysis of racial disparities.) This change will certainly narrow the effect of the First Step Act. But more urgently, it seems likely to keep more people in federal prison, exposed to a heightened risk of catching a deadly disease.

Trump has repeatedly claimed credit for passing the First Step Act. He did the same in a Super Bowl ad. Now his administration needs to do the hard work of ensuring that the law lives up to its promise.

If you are charged with a crime by the United States Department of Justice, you may be facing a mandatory minimum sentence, especially if you were arrested on federal drug charges or federal gun charges. However, you may be eligible for the safety valve provision which can significantly reduce your sentence. To learn more about the safety valve provision, along with the strict guidelines for qualifying, Bill Finn, a Raleigh federal lawyer, is sharing what you need to know.

For example, if you are convicted of drug trafficking 100 grams or more of heroin (but less than one kilogram), your mandatory minimum sentence is five years. However, if death or serious injury results from your actions, the mandatory minimum sentence is increased to 20 years.

The Safety Valve Provision is outlined in 18 U.S. Code § 3553 (f) and was passed by Congress as part of the Sentencing Reform Act in 1984. This was designed to ensure that disproportionate sentences were not given to nonviolent, “low level” offenders with little to no criminal history. The Safety Valve is typically applied to drug crimes with a mandatory minimum, allowing a judge to reduce the sentence less than what is required in the U.S. Code.

In addition to the lighter sentence, the Safety Valve offers a two-point reduction in the total offense. Every federal crime has an “offense level” rated between one and 43, with the higher numbers representing more serious crimes or crimes with compounded factors. For example, if an offender obstructs justice during the investigation, the offense level is increased by two levels, whereas if they clearly accept responsibility for their actions, their offense level may be lowered by two levels.

For those who are eligible for the Safety Valve Provision, the reduction of two offense points can significantly reduce their sentence by months or even years.

Did Not Organize or Lead Others:The defendant can not be the leader, organizer, or manager of a group committing the offense. For example, if the defendant exhibited any type of control over another individual in relation to the offense, they are disqualified from receiving the Safety Valve Provision.

The only applicable charges are those outlined in 18 U.S.C. 3553(f). This includes, but is not limited to: Distribution, manufacturing, or dispensing of a controlled or counterfeit substance (21 U.S. Code § 841)

If you are facing federal criminal charges, you need an experienced attorney on your side to help you secure the best practical outcome in your case. We represent clients in the Eastern District of North Carolina, including Raleigh, Fayetteville, Greenville, and Goldsboro. Reach out to Sandman, Finn & Fitzhugh today at (919) 887-8040 to schedule a free initial consultation, or fill out the form below to get started.

Attorney General Eric Holder’s speech to the American Bar Association last Monday, announcing critical reforms to the way the Department of Justice prosecutes and addresses drug crimes, was historic and long overdue. Not in recent memory has this country seen an attorney general acknowledge that it is time “to break free of a tired status quo; and to take bold steps to reform and strengthen America’s criminal justice system – in concrete and fundamental ways.”

We often hear that the executive branch of government needs more – more resources, more prosecutors and longer sentences. But this time Attorney General Holder has recognized that less can be more – that widespread incarceration is both ineffective and unsustainable. The federal government cannot maintain a federal prison system that since 1980 has grown at an astonishing rate of almost 800 percent, is operating at almost 40 percent over capacity and accounts for 25 percent of the Department of Justice’s budget. Currently over 219,000 people are in federal prison and almost half of them are serving time for drug-related crimes – and in a majority of cases they are non-violent.

Instead of asking for more, Holder and President Obama have taken on the task of rethinking the way the federal government approaches crime in this country. Addressing the length of sentences for non-violent crimes will ease overcrowding in federal prisons and help ensure that taxpayer dollars are spent in ways that improve public safety – such as reentry programs helping formerly incarcerated people seek employment and housing.

Although this is an important step forward for smart criminal justice policy, it is not a new approach to reform. In states around the country, lawmakers have in recent years been taking a hard look at broken criminal justice systems that fail to effectively respond to public safety needs or fix problems like addiction. Several states over the last 10 years have recognized the need to address the rising cost of incarceration and changed their laws to focus on people who truly need to be locked up. For example, since 2003, New York has reduced its prison population by almost 17 percent. These reductions can be attributed to a sharp decline in felony drug arrests, increased diversion to treatment programs, legislation that allowed for more earned time credits for people in prison, and reforms to the Rockefeller Drug Laws including lower mandatory minimums. All these successful reforms took place while the state’s crime rate declined by 13 percent.

While the attorney general has taken some preliminary steps to address the mass incarceration crisis in this country, he cannot do this alone. We must call on Congress to finish the work that the administration has now started and where states have been leaders. Specifically, two bipartisan bills that have been introduced in Congress go straight to the heart of the problems in the federal criminal justice system. The first, S.1410, the Smarter Sentencing Act of 2013, which was introduced by Sens. Richard Durbin (D-Ill.) and Mike Lee (R-Utah), is comprehensive legislation that would reduce the length of some drug mandatory minimum sentences, allow judges to use more discretion to determine sentences for low level drug offenses, and apply the Fair Sentencing Act (the law that reduced the crack-powder cocaine sentencing disparity) to those currently serving sentences for these offenses. Similarly, S.619 and H.R.1695, the Justice Safety Valve Act of 2013, is bipartisan legislation introduced by Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Sen. Rand Paul (R-Ky.). This bill would give federal judges more discretion to sentence below a mandatory minimum sentence when appropriate.

Now that the attorney general has taken a step toward reform, we call on Congress to take the next steps toward a just and fair criminal justice system by passing these two important pieces of legislation.

The primary “smart” sentencing provision of the Crime Bill appears in Title VII under the heading “Applicability of Mandatory Minimum Penalties in Certain Cases.” This provision, commonly known as a safety valve provision, served as a partial response to the Sentencing Commission’s 1991 report documenting the inconsistent and inappropriate application of previously enacted federal mandatory minimum statutes.8 To counteract this misapplication, the safety valve provision authorized sentencing courts to follow applicable sentencing guidelines without regard to more severe statutory mandatory minimum terms for certain less serious drug offenses (e.g., offenses not involving violence or firearms) when a defendant met a series of conditions (e.g., having pleaded guilty and having little criminal history).

The impact of this statutory safety valve grew when the Sentencing Commission in 1995 created a downward adjustment within the drug offense guidelines. The change provided for a two-level reduction in the guideline offense-level calculation for all defendants who met the criteria set out in the bill.9 Consequently, after passage of the 1994 Crime Bill and the guideline amendment it prompted, certain federal defendants who committed lower-level drug offenses could both avoid the application of severe mandatory minimums and benefit from a reduced guideline sentencing range.

These changes have helped shorten the sentences of tens of thousands of people who committed lower-level drug crimes but were subject to harsh drug-offense mandatory minimums enacted in other federal bills. Annual reports from the Sentencing Commission indicate that, in many years, well over 20 percent of federal drug defendants have benefited from the statutory safety valve, allowing them to be sentenced below an otherwise applicable mandatory minimum. In FY 2000, for example, nearly 5,000 of roughly 21,000 federal drug defendants received statutory safety valve relief at sentencing;10 in FY 2010, over 5,500 of roughly 23,000 federal drug defendants secured such relief.11

In addition, all of these defendants and often thousands more benefited each year from the corresponding guideline safety valve provision that serves to lower applicable guideline sentencing ranges. In FY 2010, for example, more than 3,000 additional federal drug defendants benefited from a reduced guideline range.12 Overall, the number of federal drug defendants whose sentences were reduced by these safety valve provisions in the 25 years since the passage of the Crime Bill is now approaching 200,000.

Recent work by Congress has further expanded the impact of the safety valve provision. In 2011, the Sentencing Commission released a report urging Congress to expand the safety valve to people who were convicted of drug offenses and have additional criminal history. The report also suggested that the safety valve should be applicable beyond drug cases.13 Taking partial heed, Congress in the FIRST STEP Act of 201814 expanded the safety valve to make federal drug defendants with additional (though still modest) criminal history eligible for relief from otherwise applicable mandatory minimums.

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Is justice best served by having legislatures assign fixed penalties to each crime? Or should legislatures leave judges more or less free to tailor sentences to the aggravating and mitigating facts of each criminal case within a defined range?

The proliferation in recent decades of mandatory minimum penalties for federal crimes, along with the tremendous increase in the prison population, has forced those concerned with criminal justice in America to reconsider this age-old question. The Supreme Court of the United States has upheld lengthy mandatory terms of imprisonment over the challenge that they violate the Eighth Amendment’s prohibition against cruel and unusual punishments.[1] The question remains, however, whether mandatory minimums are sound criminal justice policy.

Today, public officials on both sides of the aisle support amending the federal mandatory minimum sentencing laws. Two bills with bipartisan support are currently under consideration. Senators Patrick Leahy (D–VT) and Rand Paul (R–KY) have introduced the Justice Safety Valve Act of 2013,[2] which would apply to all federal mandatory minimums. Senators Dick Durbin (D–IL) and Mike Lee (R–UT) have introduced the Smarter Sentencing Act, which would apply to federal mandatory minimums for only drug offenses.[3]

In what follows, this paper will explain how mandatory minimums emerged in the modern era, summarize the policy arguments for and against mandatory minimums, and evaluate both the Justice Safety Valve Act and the Smarter Sentencing Act. The bottom line is this: Each proposal might be a valuable step forward in criminal justice policy, but it is difficult to predict the precise impact that each one would have. This much, however, appears likely: The Smarter Sentencing Act is narrowly tailored to address one of the most pressing problems with mandatory minimums: severe sentences for relatively minor drug possession crimes.[4]

For most of the 19th and 20th centuries, federal trial judges had virtually unlimited sentencing discretion.[5] In the 1960s and 1970s, influential members of the legal establishment criticized that practice,[6] concluding that that unrestrained discretion gave rise to well-documented sentencing disparities in factually similar cases.[7] Over time, that scholarship paved the way for Congress to modify the federal sentencing process through the Sentencing Reform Act of 1984.[8] That law did not withdraw all sentencing discretion from district courts; it did, however, establish the United States Sentencing Commission and directed it to promulgate Sentencing Guidelines that would regulate and channel the discretion that remained.[9]

Congress also decided to eliminate the courts’ discretion to exercise leniency in some instances by requiring courts to impose a mandatory minimum sentence for certain types of crimes. For example, Congress enacted the Armed Career Criminal Act[10] in 1984 as part of the same law that included the Sentencing Reform Act of 1984.[11] The Armed Career Criminal Act demands that a district court sentence to a minimum 15-year term of imprisonment anyone who is convicted of being a felon in possession of a firearm if he has three prior convictions for “a violent felony or a serious drug offense.”[12] Two years later, concerned by the emergence of a new form of cocaine colloquially known as “crack,” Congress passed the Anti-Drug Abuse Act of 1986,[13] which imposes mandatory minimum terms of imprisonment for violations of the federal controlled substances laws.[14]

District courts may depart downward from those mandatory minimum sentences only in limited circumstances. For example, the Anti-Drug Abuse Act of 1986 has two exceptions to the mandatory minimum sentencing requirement. The first occurs if a defendant cooperates with the government and the government files a motion for a downward departure from the statutory minimum.[16] Absent such a motion, the district court cannot reduce a defendant’s sentence based on that exception.[17] The second exception involves the so-called safety valve that allows judges to avoid applying mandatory minimums, even absent substantial assistance.[18] The safety valve, however, has a limited scope: It applies only to sentences imposed for nonviolent drug offenses[19] where the offender meets specific criteria relating to criminal history, violence, lack of injury to others, and leadership.[20] Otherwise, a district court must impose the sentence fixed by the Anti-Drug Abuse Act of 1986. With regard to the Armed Career Criminal Act, no federal law authorizes a district court to impose a term of imprisonment less than the one required by that statute.

The Armed Career Criminal Act and the Anti-Drug Abuse Act of 1986 are the two principal modern federal statutes requiring mandatory minimum terms of imprisonment—but they are by no means the only ones. Mandatory minimums have proliferated and have increased in severity. Since 1991, the number of mandatory minimums has more than doubled.[21] Entirely new types of offenses have become subject to mandatory minimums, from child pornography to identity theft.[22] During that period, the percentage of offenders convicted of violating a statute carrying a mandatory minimum of 10 years increased from 34.4 percent to 40.7 percent.[23]

The Assault on Mandatory Minimum Sentences.Mandatory minimum sentences have not eliminated sentencing disparities because they have not eliminated sentencing discretion; they have merely shifted that discretion from judges to prosecutors.[25] Judges may have to impose whatever punishment the law requires, but prosecutors are under no comparable obligation to charge a defendant with violating a law carrying a mandatory minimum penalty.[26] As a practical matter, prosecutors have unreviewable discretion over what charges to bring, including whether to charge a violation of a law with a mandatory minimum sentence, and over whether to engage in plea bargaining, including whether to trade away a count that includes such a law. Moreover, even if a prosecutor brings such charges against a defendant, the prosecutor has unreviewable discretion whether to ask the district court to reduce a defendant’s sentence due to his “substantial assistance” to the government.[27]

Indeed, nowhere else in the criminal justice system does the law vest authority in one party to a dispute to decide what should be the appropriate remedy. That decision always rests in the hands of a jury, which must make whatever findings are necessary for a punishment to be imposed, or the judge, who must enter the judgment of conviction that authorizes the correctional system to punish the now-convicted defendant.[30]

Furthermore, they contend, mandatory minimum sentences do not reduce crime. As University of Minnesota Law Professor Michael Tonry has concluded, “the weight of the evidence clearly shows that enactment of mandatory penalties has either no demonstrable marginal deterrent effects or short-term effects that rapidly waste away.”[31] Nor is it clear that mandatory minimum sentences reduce crime through incapacitation. In many drug operations, if a low-level offender is incapacitated, another may quickly take his place through what is known as the “replacement effect.”[32] In drug cases, mandatory minimum sentences are also often insensitive to factors that could make incapacitation more effective, such as prior criminal history.[33]

Further, only certain defendants in cases involving organized crime—those who are closest to the top of the pyramid—will be able to render substantial assistance.[36] The result is that sentencing reductions go to serious offenders rather than to small-scale underlings. The practice of affording sentence concessions to defendants who assist the government is entrenched in American law, but the quantity-driven drug mandatory minimums are uniquely problematic because they can render each low-level co-conspirator responsible for the same quantity of drugs as the kingpin.[37]

Statutes imposing mandatory minimum sentences result in arbitrary and severe punishments that undermine the public’s faith in America’s criminal justice system. Consider the effect of those provisions in the Anti-Drug Abuse Act of 1986. Drug offenses, which make up a significant proportion of mandatory minimums, can give rise to arbitrary, severe punishments.[38] The difference between a drug quantity that triggers a mandatory minimum and one that does not will often produce a “cliff effect.”[39] While someone with 0.9 gram of LSD might not spend much time incarcerated, another fraction of a gram will result in five years behind bars.

In fact, it is easy to find examples of unduly harsh mandatory minimums for drug offenses. A financially desperate single mother of four with no criminal history was paid $100 by a complete stranger to mail a package that, unbeknownst to her, contained 232 grams of crack cocaine. For that act alone, she received a sentence of 10 years in prison even though the sentencing judge felt that this punishment was completely unjust and irrational.[40]

Finally, critics maintain that mandatory minimum sentences are not cost-effective. The certainty of arrest, prosecution, conviction, and punishment has a greater deterrent effect than the severity of punishment. If a one-year sentence for a crime has the same deterrent effect as a five-year sentence, the additional four years of imprisonment inflict unnecessary pain on the offender being incarcerated and, to borrow from economics, impose a “dead weight” loss on society. Mandatory minimum sentences, therefore, waste scarce criminal justice resources.

A nation of more than 300 million people will necessarily have a tremendous diversity of views as to the heinousness of the conduct proscribed by today’s penal codes, and a bench with hundreds of federal district court judges will reflect that diversity. The decision as to what penalty should be imposed on a category of offenders requires consideration of the range of penological justifications for punishment, such as retribution, deterrence, incapacitation, education, and rehabilitation. Legislatures are better positioned than judges to make those types of judgments,[43] and Americans trust legislatures with the authority to make the moral and empirical decisions about how severely forbidden conduct should be sanctioned. Accordingly, having Congress specify the minimum penalty for a specific crime or category of offenses is entirely consistent with the proper functioning of the legislature in the criminal justice processes.

Mandatory minimum sentences eliminate the dishonesty that characterized sentencing for the majority of the 20th century. For most of that period, Congress vested district courts with complete discretion to select the appropriate period of confinement for an offender while also granting parole officials the authority to decide precisely whether and when to release an inmate before the completion of his sentence.

That division of authority created the inaccurate impression that the public action of the judge at sentencing fixed the offender’s punishment while actually leaving that decision to the judgment of parole officials who act outside of the view of the public. At the same time, Congress could escape responsibility for making the moral judgments necessary to decide exactly how much punishment should be inflicted upon an individual by passing that responsibility off to parties who are not politically accountable for their actions. The entire process reflected dishonesty and generated cynicism, which corrodes the professional and public respect necessary for the criminal justice system to be deemed a morally defensible exercise of governmental power.

Mandatory minimum sentences also address two widely acknowledged problems with the criminal justice system: sentencing disparity and unduly lenient sentences. Mandatory minimums guarantee that sentences are uniform throughout the federal system and ensure that individuals are punished commensurate with their moral culpability by hitching the sentence to the crime, not the person.[44]

In fact, the need to use mandatory minimums as a means of addressing sentencing variances has become more pressing in the wake of the Supreme Court’s 2005 decision in United States v. Booker.[45] Booker excised provisions of the Sentencing Reform Act of 1984 that had made the Sentencing Guidelines binding upon federal judges.[46] The result, unfortunately, has been a return to the type of inconsistency that existed before that statute became law. According to the Department of Justice, Bookerhas precipitated a return to unbridled judicial discretion: “[For] offenses for which there are no mandatory minimums, sentencing decisions have become largely unconstrained.”[47] Booker therefore threatens to resurrect the sentencing disparities that, 30 years ago, prompted Congress to enact the Sentencing Reform Act. Mandatory minimum sentences may be the only way to eliminate that disparity today.

Mandatory minimum sentences also prevent crime because certain and severe punishment inevitably will have a deterrent effect.[48] Locking up offenders also incapacitates them for the term of their imprisonment and thereby protects the public.[49] In fact, where the chance of detection is low, as it is in the case of most drug offenses, reliance on fixed, lengthy prison sentences is preferable to a discretionary sentencing structure because mandatory sentences enable communities to conserve scarce enforcement resources without losing any deterrent benefit.[50]

It is a mistake to condemn mandatory minimum sentences because of the cost of imprisoning offenders. Opponents of mandatory minimums decry the high cost of housing a large number of inmates for a lengthy period of time and point to other criminal justice programs—e.g., the FBI, Federal Public Defenders, and victim advocates—that can better use those funds. That argument, however, does not consider both sides of the ledger. Imprisonment reduces the number of future victims of crime and thereby reduces the costs that they and the rest of society would otherwise suffer. Society is entitled to decide how to spend its funds, and underwriting the cost of incapacitating proven criminals is certainly a legitimate use of resources. Moreover, this efficiency-based criticism mistakenly assumes that Congress will not increase the budget for the Justice Department to use a valuable criminal justice tool: imprisonment.

In any event, there is no guarantee that any funds saved by reducing the length of offenders’ sentences will go to other components of the criminal justice system. Indeed, there is no criminal justice “lockbox” into which all saved or unspent funds are dumped, and it is dishonest to pretend that funds not given to the Federal Bureau of Prisons will necessarily be used elsewhere in the criminal justice system rather than for non–criminal justice government programs.

Finally, the arguments against mandatory minimum sentences are, at their core, just a sleight of hand. The principal objection to mandatory minimum sentences is not that they are mandatory, but that they are severe or that they are required for drug offenses. No one would object to a mandatory 30-day sentence for possession of heroin or a mandatory one-year sentence for rape (in fact, the objection likely would be that those mandatory sentences are too short). Critics are concerned less about the mandatory nature of federal sentences than they are about their length and their use in drug cases.

The Justice Safety Valve Act of 2013.As noted above, Section 3553(f) of Title 18 contains a “safety valve” that allows judges to exempt certain drug and other offenders from mandatory minimum sentences. The Justice Safety Valve Act would add a new subsection (g) to Section 3553.[55] That provision would expand the existing safety valve by allowing a judge to depart downward from any mandatory minimum “if the court finds that it is necessary to do so in order to avoid imposing” an unjust sentence.[56] Judges would need to state on the record their reason(s) for not imposing a mandatory minimum sentence, but they could reduce every sentence required by law to the punishment that the court deemed appropriate in each case.[57]

The Smarter Sentencing Act of 2013.The other law, called the Smarter Sentencing Act, operates in a different and far more limited manner.[58] To start with, it would not apply to every mandatory minimum sentence. Instead, it would amend Section 3553(f), which applies only to nonviolent drug crimes. The Smarter Sentencing Act would permit a district judge to impose sentences without regard to any mandatory minimum if the court finds that the defendant has no more than two criminal history points, as defined by the U.S. Sentencing Guidelines, and the defendant was not convicted of a disqualifying offense, such as a violent crime.[59]

Finally, the act would make retroactive the Fairness in Sentencing Act of 2010,[60] which reduced the disparity between the amount of crack cocaine and powder cocaine needed to trigger mandatories and eliminated the five-year mandatory minimum sentence for simple possession of crack cocaine.[61] It is sensible as a matter of policy to apply that statute retroactively. The Fairness in Sentencing Act of 2010 reduces the crack-to-powder ratio used in calculating a mandatory minimum sentence from 100:1 to 18:1. If the higher ratio is unnecessary to serve the legitimate purposes of punishment, there is no obvious reason why it should not be applied retroactively. After all, if Congress decides that a particular method of calculating a sentence of imprisonment is unduly severe on a going-forward basis, it makes little sense to continue to apply that penalty to offenders already suffering under it.

Each bill would grant district courts greater discretion to depart downward from a mandatory minimum sentence than current law allows. The Safety Valve Act would allow such departures in every case in which there is a mandatory minimum sentence, while the Smarter Sentencing Act permits that result only in connection with violations of the controlled substances laws and only if the defendant satisfies certain requirements.

Neither the Justice Department nor the Government Accountability Office has analyzed the potential effect of either proposal, so Americans are left with uncertainty about those proposals’ likely effects. In theory, the Safety Valve Act could result in a greater number of downward departures than the Smarter Sentencing Act because the former would apply to every mandatory minimum statute. It is uncertain, however, just how often district courts would depart downwards in non-drug cases and how many years of imprisonment courts would shave off the amount now required by law for those offenses.

Moreover, the Safety Valve Act could pose a risk of overcorrection. That bill, for example, would authorize a district court to disregard a mandatory minimum sentence “if the court finds that it is necessary to do so in order to avoid” imposing a sentence that would “violat[e]” the purposes of federal criminal punishment, which are to impose a sentence that is “sufficient, but not greater than necessary” to, among other “things, reflect the seriousness of the offense,” “provide just punishment,” “afford adequate deterrence,” and “protect the public from further crimes of the defendant.”[62] Even though the act would require district courts to provide a written statement of the reasons for any downward departure,[63] that provision would, on its face, appear to grant district courts virtually unfettered discretion to issue a sentence below the statutory minimum. Furthermore, the Safety Valve Act supplies district courts with no objective standards, thereby denying an appellate court the criteria needed to determine whether the district court had abused its discretion.

Given that the Sentencing Guidelines are no longer mandatory, the Safety Valve Act might effectively return to district courts the broad discretion that they enjoyed before the Sentencing Reform Act of 1984. The result would be to make every current mandatory minimum sentence into a mere recommendation, thereby accelerating the transformation of federal sentencing law back to the “bad old days” of unjustified sentencing disparities—a risk that must be considered.

The Smarter Sentencing Act is a far narrower remedy than the Safety Valve Act because it addresses perhaps the most troubling aspect of mandatory minimums: their capacity to impose arbitrary and unduly severe sentences on relatively low-level offenders in controlled substances cases. That problem is particularly acute in drug cases, because an additional gram of a controlled substance quantity can have an enormous impact on sentencing even though that additional gram has little marginal bearing on the offender’s moral culpability.[64] By removing the mandate in cases where offenders, despite having a slightly more substantial criminal history, otherwise qualify for the safety valve and by substantially decreasing mandatory sentences for nonviolent drug offenses, the Sentencing Act would mitigate the evils of the “cliff effect” that some critics have identified.

Perhaps, in the long term, the Safety Valve Act might be preferable policy. For now, however, such sweeping reform might be a bridge too far. The immediate and most urgent problem facing America’s criminal justice system is that district courts must impose unduly severe mandatory minimum sentences on certain small-scale drug offenders. The Smarter Sentencing Act focuses on remedying that problem while leaving for another day the issue of whether there should be mandatory minimum sentences imposed on, for example, violent criminals. The Smarter Sentencing Act takes a smaller step than the Safety Valve Act toward the revision of the federal mandatory minimum sentencing laws, but a smaller step might enhance federal sentencing policy while avoiding the risks noted above.

The problem, however, is remediable. Granting district courts some additional limited sentencing discretion would improve the status quo by eliminating some unjust sentences without obviously undercutting the incapacitative, deterrent, and educative benefits of the criminal law. The Smarter Sentencing Act seeks to mitigate the “cliff effect” in the context of nonviolent drug offenses. Doing so could ameliorate some of the extremely harsh sentences that district courts have imposed without taking a bite out of the efforts that the government has made over the past four decades to improve public safety.

“(3) Statement in writing of factors.—The court shall state, in the written statement of reasons, the factors under subsection (a) that require imposition of a sentence below the statutory minimum.

As voted out of the Senate Judiciary Committee on January 30, 2014, The Smarter Sentencing Act of 2013, S. 1410, 113th Congress (2013), provides as follows:

(a) Definition of Covered Offense.—In this section, the term “covered offense” means a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 (Public Law 111–220; 124 Stat. 2372), that was committed before August 3, 2010.

(b) Defendants Previously Sentenced.—A court that imposed a sentence for a covered offense, may, on motion of the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court, impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111–220; 124 Stat. 2372) were in effect at the time the covered offense was committed.

(c) Limitations.—No court shall entertain a motion made under this section to reduce a sentence if the sentence was previously imposed or previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111–220; 124 Stat. 2372) or if a motion made under this section to reduce the sentence was previously denied. Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section.

(a) Directive to Sentencing Commission.—Pursuant to its authority under section 994(p) of title 28, United States Code, and in accordance with this section, the United States Sentencing Commission shall review and amend, if appropriate, its guidelines and its policy statements applicable to persons convicted of an offense under section 401 of the Controlled Substances Act (21 U.S.C. 841) or section 1010 of the Controlled Substances Import and Export Act (21 U.S.C. 960) to ensure that the guidelines and policy statements