Two prominent senators introduced bipartisan legislation this week to give judges more sentencing discretion in crimes with mandatory minimums. The bill introduced by Sens. Rand Paul (R-KY) and Patrick Leahy (D-VT) would expand a so-called “safety valve” provision that allows judges to sentence below the statutorily required prison term from just some drug cases to all federal crimes carrying a mandatory minimum sentence.
Mandatory minimum sentences tie judges’ hands, and shift the discretion in determining punishment from judges to prosecutors, who are not neutral arbiters in criminal cases they pursue. The sentencing requirements are also a major contributor to the United States’ bloated prison population, the highest in the world. In a statement introducing the bill, Senate Judiciary Chair Leahy called U.S. reliance on mandatory minimum sentences a “great mistake”:
As a former prosecutor, I understand that criminals must be held accountable, and that long sentences are sometimes necessary to keep violent criminals off the street and deter those who would commit violent crime. I have come to believe, however, that mandatory minimum sentences do more harm than good. As Justice Kennedy said, “In too many cases, mandatory minimum sentences are unwise and unjust.” […]
The United States has a mass incarceration problem. Between 1970 and 2010, the number of people incarcerated grew by 700 percent. Although the United States has only 5 percent of the world’s population, we incarcerate almost a quarter of its prisoners. At the end of 2011, 2.2 million people were in jail or prison in the United States. That means we incarcerate roughly one in every 100 adults.[…]
In addition to driving up our prison population, mandatory minimum penalties can lead to terribly unjust results in individual cases. This is why a large majority of judges oppose mandatory minimum sentences. In a 2010 survey by the United States Sentencing Commission of more than 600 Federal district court judges, nearly 70 percent agreed that the existing safety valve provision should be extended to all Federal offenses. That is exactly what our bill does.
The bill is a first crucial step toward reforming the unduly draconian federal sentencing scheme, and garnered immediate praise from Families Against Mandatory Minimums. But even FAMM, which released a report this month on “safety valve” provisions, has noted that the safety valve scheme currently in effect for federal drug crimes imposes a stringent five-factor test for escaping mandatory minimums. One federal judge who lamented in two outspoken opinions that the scheme treats low-level drug offenders like kingpins described the “safety valve” provision this way:
The “safety valve” provision that was supposed to save minor defendants from the two-by-four that a mandatory minimum becomes on sentencing day has too many conditions to be effective. Even though more than 94% of crack defendants have no leadership or managerial role, fewer than 10% of such defendants qualify for the safety valve.
In a second opinion sentencing a defendant who did qualify for safety valve treatment, U.S. District Judge John Gleeson pointed out that even those who escape mandatory minimums receive unduly harsh sentences under the U.S. Sentencing Guidelines, which are no longer mandatory but carry tremendous weight with federal judges.
FAMM’s report highlights more lenient safety valves in several states, but the proposed federal safety valve provision is far better than none at all and would, at a minimum, spare more defendants receiving unjust sentences. Gleeson and other judges have also implored prosecutors to use their own discretion to dole out less mandatory minimums, and the U.S. Sentencing Commission to reform its own outdated standards.