|II. FEDERAL MANDATORY MINIMUM REFORMS: IMPROVE AND EXPAND THE FEDERAL "SAFETY VALVE"|
Summary of the Problem: There are two types of federal sentencing laws: mandatory minimum sentencing laws, enacted by Congress, and the sentencing guidelines, promulgated by the United States Sentencing Commission and approved by Congress. A mandatory minimum sentence is a required minimum term of punishment (typically incarceration) that is established by Congress in a statute. When a mandatory minimum applies, the judge is forced to follow it and cannot impose a sentence below the minimum term required, regardless of the unique facts and circumstances of the defendant or the offense. Sentencing guidelines, in contrast, can be nuanced and crafted to account for both consistency in sentencing and individual circumstances of the offense and offender. Where both statutory mandatory minimums and guidelines apply, the mandatory minimum trumps the guidelines.
In the mid-1980s, Congress responded to public fears about the growing crack cocaine epidemic by adopting mandatory minimums of five and ten years to punish serious and high-level drug traffickers. In 1988, mandatory minimum penalties were extended to apply to conspirators as well as principals. Because the application of these mandatory minimums depended on one factor, drug weight, they could not be adjusted to account for factors such as playing a limited role in the offense. This had the unfortunate consequence of treating all participants in a drug scheme the same way, including very low-level drug couriers and assistants, who are subject to the same lengthy sentence as kingpins.
In response to widespread criticism that mandatory minimums are unduly harsh in many circumstances, as they cannot meaningfully distinguish among defendants of different culpability, in 1994 Congress created a "safety valve" that would suspend the operation of the otherwise applicable mandatory minimum in drug cases if the defendant was a low-level participant, did not use a weapon, was involved in a violence-free crime, had little or no criminal history and told the government the truth about his or her involvement in the offense and offenses in the same course of conduct or common scheme or plan. See 18 U.S.C. § 3553(f).
The statutory safety valve obliges courts to impose a sentence under the advisory guidelines in place of a mandatory minimum upon a judicial finding that the conditions of 18 U.S.C. § 3553(f) are met. Today, the safety valve has been used to recognize and adjust the sentences of 25 percent of all drug offenders, benefiting first-time, low-level, nonviolent offenders. This means judges can craft sentences that more accurately punish offenders based on the severity of their offense, their culpability, and their criminal history.
The safety valve, while of great benefit, suffers from several problems that should be corrected. First, it defines low-level offenders much too narrowly, relying on the point system established by the Sentencing Commission for calculation of criminal history. Second, the "tell-all" requirement is confusing to judges, defense attorneys, and prosecutors and has been misinterpreted to require defendants to provide information about other offenders (not just themselves), which is covered by a separate statutory section, § 3553(e). Third, there is no sound reason to limit the application of the safety valve, which seeks to recognize and fashion appropriate sentences for first time, low-level, nonviolent offenders who recognize and admit their responsibility, to only those defendants who were convicted of a drug offense.
1. Amend 18 U.S.C. § 3553(f) to broaden the safety valve.
To be eligible for the safety valve waiver of the mandatory minimum, a defendant must be found to satisfy five criteria. One of them concerns the extent of the offender's criminal history, which in turn relies on the point system established by the Sentencing Commission for calculation of criminal history. The intent of the safety valve was to allow courts to recognize offenders with no or limited criminal history. Due to the peculiarities of the sentencing guidelines' criminal history provisions, people who have been convicted of more than one very minor offense, such as driving on a suspended license or passing a bad check, can be considered to have too much criminal background to qualify for the safety valve. Changing the criteria slightly will permit the safety valve to assist some offenders whose criminal history points overstate their actual risk of recidivism. Congress can change the criminal history criteria by including defendants who fall into the Sentencing Commission's Criminal History Category I, whether due to the defendant's criminal history or due to a departure from a higher criminal history category that, in the court's opinion, overstates the actual criminal history of the defendant.
2. Amend 18 U.S.C. § 3553(f) to substitute acceptance of responsibility for the tell-all requirement.
Congress can also improve the safety valve by replacing the tell-all requirement with a requirement that the defendant accept responsibility for the offense. The tell-all requirement is confusing to judges, defense attorneys, and prosecutors and has been interpreted to require defendants to provide information about other offenders, not just their own conduct. It has been a hotly litigated issue, as defense counsel and prosecutors argue about how much information is enough, whether it was provided in a timely fashion and how far beyond the offense of conviction a defendant must go in his or her submission. There is already a separate provision in criminal law that rewards cooperation with the prosecution with a reduction in sentence below the mandatory minimum when that cooperation substantially assists the government in an investigation or prosecution. Reductions for such "substantial assistance" are controlled by prosecutors pursuant to a guidelines provision requiring a government motion.
In lieu of the tell-all requirement, we would propose an acceptance of responsibility requirement. Acceptance of responsibility means that the defendant acknowledges his or her role in the offense early in the process, saving significant resources and eliminating the sometimes time- and resource-consuming process of determining whether or not a defendant has provided enough (or timely enough) information about his offense. Acceptance of responsibility standards are well established, as they have been a longstanding feature of the guidelines.
3. Amend 18 U.S.C. § 3553(f) to expand the safety valve.
Federal mandatory minimum sentences have been added to a number of offenses, but the safety valve only applies to drug offenders. The problems associated with mandatory minimum drug sentences are replicated in other mandatory minimum-bearing offenses. There is no sound reason to limit the application of the safety valve, which seeks to recognize and fashion appropriate sentences for first time, low-level, non-violent offenders who recognize and admit their responsibility, to only those defendants convicted of drug offenses. Therefore, the safety valve should be made available for all offenses that are subject to mandatory minimums.
Legislative Appropriations (Solutions w/ Funding Requests): This proposal has the potential to save money due to the ability to sentence below the statutory mandatory minimum.
Legislative Branch: House and Senate Judiciary Committees
Legislative Branch: See above
Judicial Branch: The United States Sentencing Commission amended the Sentencing Guidelines in 1995 to include a two-level reduction for defendants who meet the criteria of § 3553(f), and in 2002 clarified that the reduction should be applied without respect to whether the defendant was subject to a mandatory minimum.
Potential Allies, Potential Opposition, and Public Opinion:
Potential Allies: American Bar Association, Families Against Mandatory Minimums, National Association of Criminal Defense Lawyers, Federal Public and Community Defenders, American Civil Liberties Union, Independence Institute, Center for Community Alternatives, International Community Corrections Association, Prison Legal News, StoptheDrugWar.org, International CURE, Virginia CURE, and the Constitution Project.
Potential Opposition: Some members of Congress
Public Opinion: A 2007 ACLU/BRS survey found that 63 percent oppose mandatory minimums (37 percent strongly oppose). A 2001 ACLU/BRS survey found that 61 percent oppose mandatory minimums. Opposition has remained relatively constant. In August 2008, Families Against Mandatory Minimums released the findings of a public opinion poll it commissioned about public attitudes toward mandatory minimums. The poll, conducted by Strategy One, shows widespread support for ending mandatory minimum sentences for nonviolent offenses, and that Americans will vote for candidates who feel the same way.
For Further Information:
Families Against Mandatory Minimums/Strategy One poll on mandatory minimums (August 2008), available at http://www.famm.org/Repository/Files/FAMM%20poll%20no%20embargo.pdf
Families Against Mandatory Minimums, Correcting Course: Lessons from the 1970 Repeal of Mandatory Minimums, available at http://www.famm.org/Repository/Files/8189_FAMM_BoggsAct_final.pdf
United States Sentencing Commission, Special Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (August 1991), available at http://www.ussc.gov/r_congress/MANMIN.PDF
American Bar Association, Justice Kennedy Commission, Report with Recommendations, available at www.abanet.org/crimjust/kennedy/JusticeKennedyCommissionReportsFinal.pdf - 2004-08-12
Statement of Paul G. Cassell Before the Subcommittee on Crime, Terrorism and Homeland Security, Hearing on Mandatory Minimum Sentencing Laws (June 26, 2007), http://judiciary.house.gov/hearings/June2007/Cassell070626.pdf
Recommendations for Federal Criminal Sentencing in a Post-Booker World http://constitutionproject.org/sentencing/article.cfm?messageID=245&categoryId=7
Principles for the Design and Reform Of Sentencing Systems: A Background Report, http://constitutionproject.org/sentencing/article.cfm?messageID=148&categoryId=7
Mandatory Justice: The Death Penalty Revisited, http://constitutionproject.org/pdf/mandatoryjusticerevisited.pdf
|Last Updated on Wednesday, 19 November 2008 16:22|