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June 26, 2007

The safety valve solution to mandatory minimums

As discussed here and officially detailed here, this morning the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee is holding a hearing entitled, "Hearing on Mandatory Minimum Sentencing Laws — The Issues."   As spotlighted here, US District Judge Paul Cassell, speaking on behalf of the Judicial Conference of the United States, makes a very powerful statement against mandatory minimums. 

Unsurprisingly, however, US Attorney Richard Roper's written testimony argues in support of mandatory minimum sentencing laws and asserts that they are "critical tools for combating certain serious crimes."  Interestingly, though, Roper's testimony expresses support for the federal safety valve provisions, which he says "has been successful at preventing the mandatory minimum drug provisions from sweeping too broadly." 

I concur that the statutory safety valve has helped ameliorate some of the worst excesses of some mandatory minimum sentencing provisions.  However, Judge Cassell's testimony documents that the safety valve does not help in all cases (principally because of some rigid limitations in the reach of the safety valve).  I have long thought that, if Congress lacks the political will to eliminate all broad mandatory minimum sentencing provisions, it ought to at least expand the applicability of the safety valve to all first offenders and perhaps to all other nonviolent offenders.  After all, as Roper's testimony highlights, prosecutors view mandatory minimums as most important and perhaps only justified when directed at "major drug traffickers, gang violence, predators, and those who use firearms to further violent or drug-trafficking criminal activity."

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June 26, 2007 at 09:22 AM | Permalink

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» Why Law Enforcement Supports Mandatory Minimums from Austin Criminal Defense Lawyer
Annonymous commenter on Doug Bermans post The safety valve solution to mandatory minimums:Isnt part, and an important part, of the real story behind the motivation of law enforcement figures who so obdurately support mandato... [Read More]

Tracked on Mar 31, 2008 7:28:24 AM

Comments

Isn’t part, and an important part, of the real story behind the motivation of law enforcement figures who so obdurately support mandatory minimums is that it increases their ability to coerce plea bargains? Seemingly absent from the discussion is the fact that law enforcement supports and indeed requests massively below guideline sentences for its pleader-cooperators. The response that this is a statutory-based departure based on cooperation doesn’t seem particularly compelling given that in so many plea bargains a large down-departure is built into the deal by the prosecutors dropping many charges before settling on the claim(s) to be plead. This disparity that law enforcement can count on, between the mandatory sentences and what pleaders can expect, gives their already monstrous-plea bargaining power some serious additional oomph. Does anyone have any statistics on this?

Posted by: Annonymous | Jun 26, 2007 9:48:42 AM

The statistics I was wondering about concern what percentage of cases prosecutors accept and indeed recommend below guideline sentences without appealing, with a focus on sentences after pleas.

Posted by: Anonymous | Jun 26, 2007 1:28:03 PM

I am a wife who is directly affected by the mandatory minimums and the current crack cocaine disparity laws. I never realized the injustice until it happened to me and unfortunately my husband is going to be sentenced next week. What I was wondering, lets say that after these hearings the subcommittee agrees that mandatory minimums gives a one size fits all to the justice system, how long is it going to to take for the repeal to even take effect and if so, would it be retroactive, like the last time this happened? You think our system would have learned the lesson the first time.

Posted by: | Jun 26, 2007 3:04:14 PM

The unfairness of the statutory mandatory minimum sentencing laws are exacerbated by appellate decisions that trample the rule of leniency into the dust. As Judge Cassell points out in his statement, 18 USC 924(c) is a prime example of this tendency of the appellate courts. The Supreme Court did not have to interpret 924(c) as mandating consecutive sentences for separate acts that were charged and sentenced on the same day, but could have agreed with the circuits that required separation between the offenses, such as an intervening arrest or separate conviction. Thus, the initial five-year sentence would actually serve its warning purpose. Also, it is true that prosecutors just love these enhancing statutes; they are sledgehammers for extracting guilty pleas.

Posted by: defense attorney | Jun 27, 2007 4:53:47 PM

The satisfty the last condition of the federal safety valve provision the defendant must provide all information he/she has about the offense to the Government. The US Attorney can oppose the safety valve reduction, and often does if they don't think the defendant gave enough information.
In reality, this last condition negates the purpose of the safety valve. It puts the safety valve on the same level as a 5K1 - giving enough information to substantially assist the government - and is used to deny a reduction to most defendants who otherwise qualify.

Posted by: te | Jun 29, 2007 3:30:26 PM

HELP! I am an attorney with a problem that I don't know if probation and the court are aware of. My guy fits the safety valve requirements. Unfortunately the guideline min is 1 year and 3 months over the 10 year mand min. I have been researching and find a few cases which indicate that the issue is up in the air since Booker. I alos read the Lett case which mentioned Professor Burman's take on this situation. PLEASE CONTACT ME ASAP AND LET ME KNOW IF i AM MISSING SOMETHING. Beanie Bonin

Posted by: Cecelia Bonin | Aug 31, 2007 2:26:10 PM

Please forgive the mispells ( particularly Berman)and frantic writing. I am quote concern about my client. Beanie

Posted by: Cecelia Bonin | Aug 31, 2007 2:36:00 PM

I disagree strongly with the mandatory minimum. I had never heard of them or a lot of what is in the federal laws until just this year. They cross my path because of charges I myself am facing.
My ex-boyfriend and I met through a friend we shared. I had not wanted a man in my life but he won me over. We started living together after about two months and things were great. He was kind and fun loving. He take me out to eat, shopping, and just out to go somewhere. I thought things were turning around (from a life of lonlyness to one of love and joy) but then the abuse started bloody noses once a week, to black eyes. The abuse got worse and I learnt a lot about the man I loved like that he dealt drugs (meth). What could I do? Leave him and raise a newborn alone, how? I had no were to go besides he loved me (or so I thought). Needless to say I stayed. Only for things to get worse he took me out to the middle of no where and left me preganate alone for around a hour. Later he held a knife to me throt, a gun to my face, both times claiming he was going to kill me. I knew he was going to someday and I was terrifed of him. He'd told me of how he had killed in Mexico and how he would again. He threaten my family and he knew where they lived. Then one day he asked me to translate for his drug deal. I had no were to go that I knew of and was to scared of what he might do if found me. So I did and to make a long story short I am facing class a felonie drug charges. I am safety valve aligable but I will still (most likely) go to prison leaving two kids behind.

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