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March 20, 2013

"Bipartisan Legislation To Give Judges More Flexibility For Federal Sentences Introduced"

The title of this post is the headline of this notable new press release now available at the website of Senator Patrick Leahy. Here is how it starts:

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Senator Rand Paul (R-Ky.) introduced bipartisan legislation Wednesday to allow judges greater flexibility in sentencing federal crimes where a mandatory minimum punishment is considered unnecessary.

The bipartisan Justice Safety Valve Act of 2013 expands the so-called “safety valve” that allows judges to impose a sentence below the mandatory minimum in qualifying drug cases to all federal crimes.  By giving judges this greater flexibility, they will not be forced to administer needlessly long sentences for certain offenders, which is a significant factor in the ever-increasing Federal prison population and the spiraling costs that steer more and more of the justice budget toward keeping people in prison, rather than investing in programs that keep our communities safe.

“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 crime,” Leahy said.  “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.”

Paul said that “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.  This bill is necessary to combat the explosion of new federal criminal laws, many of which carry new mandatory minimum penalties.”

Because Senator Leahy is doing some notable work today on the drone and immigration reform fronts, I suspect that today's introduction of the Justice Safety Valve Act of 2013 will not get as much attention from the MSM as I might think it merits.   That said, I expect (and hope) that this story will get some broader attention due to the fact that GOP rock-star Senator Rand Paul is the other big initial player in this important federal sentencing reform effort.  (To start, I am very pleased to see that John Gramlich has produced this lengthy and informative piece about the bill in CQ Roll Call.)

Not surprisingly, the folks at Families Against Mandatory Minimums are excited about this development, and this new FAMM press release details some additional notable content that FAMM has produced in conjunction with this new bill.  Here are excerpts and links:

FAMM President Julie Stewart today hailed the introduction of The Justice Safety Valve Act of 2013 (S. 619), a bipartisan federal bill that would save taxpayer dollars by reserving scarce federal prison beds for the most dangerous offenders.  The bill creates a “safety valve” that allows federal courts to impose sentences below the mandatory minimum sentence under specific conditions. The legislation was introduced on March 20 by Senator Patrick Leahy (D-VT), chair of the Senate Judiciary Committee, and Senator Rand Paul (R-KY), and referred to the Senate Judiciary Committee for consideration.

Stewart also announced the release of a new FAMM report entitled, “Turning Off the Spigot: How Sentencing Safety Valves Can Help States Protect Public Safety and Save Money.” The report details how eight states have embraced sentencing safety valves as a way of reducing prison populations and saving money, while at the same time protecting public safety....

The report concludes by recommending a safety valve that is similar to the Justice Safety Valve Act sponsored by Senators Paul and Leahy. FAMM plans to distribute the report to state legislators across the country who sit on crime-focused legislative committees."

For a comprehensive overview of the Justice Safety Valve, including the bill text, a summary of its benefits, profiles of individuals who would have been eligible for relief, and likely questions and answers, click here

To download FAMM’s report, “Turning Off the Spigot: How Sentencing Safety Valves Can Help States Protect Public Safety and Save Money”, click here.

March 20, 2013 at 03:30 PM | Permalink


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"The bipartisan Justice Safety Valve Act of 2013 expands the so-called “safety valve” that allows judges to impose a sentence below the mandatory minimum in qualifying drug cases to all federal crimes."

Is anyone working on a Justice Safety Valve Act of 2013 that will allow judges to impose a sentence above the stated maximum in qualifying cases where the convicted defendant is unusually dangerous or depraved?

I mean, the idea that we need to avoid this one-size-fits-all, Washington-knows-best attitude is equally valid at the statutory top as at the statutory bottom.

May I assume Leahy and Rand will get right to work on this?

Posted by: Bill Otis | Mar 20, 2013 4:00:23 PM

LOL good one bill! i agree. As long as the judge can show why they are going below or above i have no problem with it.

Posted by: rodsmith | Mar 20, 2013 5:43:26 PM

It would be a short list of crimes that have statutory maximums that are too low.

Posted by: Thinkaboutit | Mar 20, 2013 5:57:27 PM

Thinkaboutit --

Short or long, if the "flexibility" sauce is good for the goose, it's good for the gander.

Posted by: Bill Otis | Mar 20, 2013 6:00:37 PM

This would help with the outlier cases that its obvious shouldn't get the mm.
If passed, should be retroactive to be of value.
It does nothing for the run of the mill sentences that people serve 3-5 times longer than state charges.
Therefore good time days need to be increased to 35-40 pcnt of sentence.
It's a good effort government officials, but much more is needed.
Federal system is severely dysfunctional.

Posted by: Miwestguy | Mar 20, 2013 6:25:57 PM

This is a courageous step by these two senators. Most politicians are too scared to be labelled "soft on crime" to introduce this type of legislation. It is good to see that after years of taking away judicial discretion, congress is beginning to give some back. I also agree that we now need more good time days and how about allowing sentencing by juries.

Posted by: Alan | Mar 20, 2013 6:49:54 PM

Bill, same with the "discretion" sauce. If it's good for the prosecutor, etc etc.

Posted by: Thinkaboutit | Mar 20, 2013 9:34:28 PM

Thinkaboutit --

I disagree. Prosecutorial decisions are properly political in the sense that (1) prosecutors, unlike judges, are officers of a political branch; (2) prosecutors, unlike judges, can be removed by a standard and routine political process (i.e., elections); and (3) prosecutorial decisions, unlike judicial decisions, can therefore properly be influenced by political considerations.

Example: Holder wants to try foreign terrorists in civilian courts; Mukasey wanted them tried in military courts. Holder emphasizes civil rights enforcement; Mukasey emphasized drug or CP enforcement. A given US Attorney may have doubts about how well plea bargains serve justice and thus offer relatively few, while a different US Attorney might readily accept them as needed to save taxpayer money.

These are important discretionary policy choices of the kind given over to the executive branch and largely or entirely withheld from the judicial branch. And there is nothing wrong with that.

Posted by: Bill Otis | Mar 20, 2013 10:57:47 PM

Does this mean that USSC now must, or can, re-do the drug Guidelines so that they are no longer tied to the mandatory minimums? If not, then what is the point in the proposed bill of having sentencing judges "consult" or "consider" the Guidelines which are already "stair-stepped" to comport with mandatory minimums? Under Gall/Kimbrough, et al., is not the judge's simple disagreement with the mandatory minimum (or advisory Guideline) enough to justify/support a decision to utilize the Safety Valve? And, with all due respect, how much bigger of a truck can be driven through the new requirement that Judges reiterate the standards of 3553(a) before simply imposing whatever sentence they deem just? I'm not saying the proposal doesn't have merit, just that we all ought to be up front about what's going on here. Oh, and one last comment for Bill Otis - if you place any stock in the notion of due process, then surely you must agree that the government is bound by its own stated statutory maximums. In this regard, the ratchet DOES only operate in one direction.

Posted by: anon | Mar 20, 2013 11:47:26 PM

i do disagree on this bill. I think the judge should have the right once a case has started. To have the authority to tell the DA that guess what. We're talking about 15 min's of activity. You have filed 52 charges. Time to pick one and drop the rest.

Posted by: rodsmith | Mar 21, 2013 1:17:18 AM

Anon, this just a way out of the mandatorys for the few judges that would do it...Also outlier cases that are so very much out of line....

But the guidelines are basically pretty much followed, therefore this is not going to be used very much.
Its a good effort by politicians, but they really don't understand the additive nature of the federal system and how ones history can ratchet sentences upward, dramatically.

The statues are written general in nature, wide open, very broad definitons... So many defendants get hooked with enhancements, that had nothing to do with their relevant conduct...Thats what is terribly wrong with the guidelines....Of coarse this is just my opinion...

Posted by: MidWestGuy | Mar 21, 2013 9:38:15 AM

rodsmith --

If you're Adam Lanza or Anders Breivik, you can kill a whole bunch of people in 15 minutes.

If it's Jerry Sandusky we're talking about, it was sometimes 15 minutes of "activity," and sometimes the whole night (at his "sleepovers"). But whether it was 15 minutes or the night, these rapes went on and on and on for 15 years. It seems to me that Sandusky was actually UNDERcharged. He was certainly underpunished.

Posted by: Bill Otis | Mar 21, 2013 10:18:55 AM

oh i agree. But the diff is in those cases yes you would have multiple murder charges. But that is not the case in a majority of criminal crimes.

selling one pack of drugs should not result in 50 diff charges. That's what i'm talking about. Or stealing ONE car and so on.

or in other sex crimes where they phone ONE photo but there are 5-6 diff charges. That in my book is overcharging!

or the real killer. Charge the sucker in federal court and win. Then take him/her back to state court and do it all over for the same crime.

That too is overcharging at a min and could be double jeopary if you get down to it. Don't even try the multip soverign bullshit.

Posted by: rodsmith | Mar 21, 2013 11:26:58 AM

Bill, explain how was Jerry Sandusky (a dispicable individual) underpunished? He received a sentence the law allowed. And here, I thought whatever your other predilections you respected the rule of law.

"Jerry Sandusky will spend the rest of his life in prison for the sexual abuse of 10 children, as a Pennsylvania judge sentenced him to 30 to 60 years"

He ain't get'in out. He will likely be sexually assaulted while in prison. After he dies should part of his sentence be that his body handcuffed and left in the prison morgue for 100 years?

Posted by: ? | Mar 21, 2013 10:09:53 PM

? --

To say that I respect the rule of law is not to say that I agree with all SCOTUS decisions, and I certainly don't. (Neither do you, while presumably you would say that you also respect the rule of law).

Sandusky was underpunished because he should have received the death penalty. He was a serial, brutal, years-long child rapist. I realize that such people can no longer be executed under Kennedy v. Louisiana. But that case was incorrectly decided, for the reasons given by the four dissenters.

Are dissenting SCOTUS Justices ipso facto disrespectful of the "rule of law?" Of course not. Then neither am I.

Posted by: Bill Otis | Mar 21, 2013 11:29:48 PM

sorry bill but the death penalty was never even on the table for sandusky once the earlier USSC decisions basically stated that you can't kill people who have not taken a life. Not to mention that decision was actualy rendered before Kennedy v. Louisiana...but of course those fuckups under jindal were too retarded to realize it and the courts had to waste time saying

NO means NO! all over again.

Personaly i think the 2nd time a court has to tell you something is illegal...They should put YOUR ass in jail for a while so it can sink in!

Posted by: rodsmith | Mar 23, 2013 4:15:48 PM

? stated: "[Sandusky] ain't get'in out. He will likely be sexually assaulted while in prison."

Doubtful. He is likely (and correctly) sitting in a nice and comfy protective custody unit because of the case's high profile nature.

Posted by: TarlsQtr1 | Mar 24, 2013 12:55:36 PM


"We have no control over what the receiver of the (inmate's) phone call does," said Susan Bensinger, a spokesman for the state system.

Sandusky, who is being held in administrative custody - a type of solitary confinement - at the prison for his own safety
{as TarlsQtr1 wrote}

3/25/13 pennlive.com

Posted by: Adamakis | Mar 25, 2013 12:26:18 PM

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