Mike Riggs has a post over on reason.com about Rand Paul and Patrick Leahy’s efforts to create additional safety valves in federal sentencing to mitigate the effects of mandatory minimum drug laws. Riggs’ post is a good starting point.
But there’s a lot more to say.
Not All Safety Valves Are Created Equal
Right now there is only one true safety valve and a second way to break a mandatory minimum through substantial assistance.
The 3553(f) safety valve can only be used for drug offenses and specifically may not be used in cases where a weapon is used in connection with the instant offense. It requires that the individual have no more than one sentencing point and that the person gave the government all useful information prior to sentencing. This obviously does not apply in cases where the defendant goes to trial, loses, and maintains his innocence. The defendant must come clean with respect to that particular incident or set of instances.
The 3553(e) substantial assistance route allows someone to break a mandatory minimum for any crime, but only on the government’s motion. If the person did not satisfy the government’s 5K1.1 criteria, the person doesn’t get a motion and doesn’t get relief. Note that in the event of a 3553(e) a statutory mandatory minimum can be broken, but the defendant must be sentenced within the Sentencing Guidelines range. If the sentencing guidelines, based on weights of drugs or other factors, turn out to be higher than the mandatory minimum, the judge may not simultaneously go below the statutory minimum and depart from the guidelines on a government’s 3553(e).
It’s important that any safety valve, for it to have real, practical value outside of a few egregious examples, to have a few characteristics.
First, the safety valve must not be on the government’s motion, which would effectively make it worthless as a post-trial tool for judges.
Second, the safety valve must not be tied to the Sentencing Guidelines except insofar as they serve as a reference point to guide a judge’s thinking.
Third, the safety valve must not be overly restrictive in terms of prior record levels. In North Carolina, a few traffic offenses will create multiple points that can disqualify a defendant later charged in federal court from any 3553(f) safety valve consideration.
Fourth, the safety valve must not be contingent on cooperation with the government. The safety valve needs to be able to restore an defendant’s right to go to trial, and lose, and not be given a horrific punishment as in Weldon Angelos’ case.
Weldon Angelos is being punished for going to trial. Following three drug buys, he was arrested. He was offered 15 years in exchange for a guilty plea. The judge said he’d sentence him to 18 years if he could. Instead, he’s serving 55 years. In my mind, serving 15 years for selling some pot is outrageous. Angelos probably thought it was too when he rejected that plea, believing that if the truth just came out at trial, he’d win on two of the 924(c) counts and face a 5 year mandatory minimum instead of 55 years. Even though Angelos was a first time offender and not a major player in the drug operation, Angelos did not qualify for a 3553(f) because the 924(c) is a gun offense, not a drug offense.
Now he’ll get out of jail when he’s in his 70s.
Restoring Judge’s Discretion is a Good First Step
Restoring a judge’s discretion is a good first step. Mandatory minimums effectively take power from judges and give that power to prosecutors, who get to decide how to charge. A prosecutor can effectively shape the outcome by charging the defendant with a series of 924(c) or 851 enhancements so that when the defendant first gets in front of a judge for a substantive hearing, the defendant already is facing mandatory minimums measured in decades.
924(c) sentences run consecutive to each other and to all other charges. Once that decision has been made, the Defendant is stuck.
That prosecutorial hammer – the hammer that takes power from a neutral judge and gives it to a prosecutor – means that the prosecutor can extract cooperation, and very punitive pleas, as well as promises to waive certain constitutional rights, such as bail hearings and the like, in an effort to avoid being charged with crimes involving mandatory minimums.
A Better Way
We need to rethink our criminal justice system. Set aside whether you think drugs should be legal – as I do. The problem right now is that we are sending away millions of human beings and consigning them to years in prison for essentially consuming substances or selling those substances to others.
A good first step, especially in an era of austerity, is to consider whether we want to bear the economic cost of warehousing human beings.
A good next step would be to consider whether, if the government decides to warehouse people, whether those people need to be warehoused for 5 or 10 years for possessing or transporting substances. What is an adequate punishment? If you rob someone in North Carolina without a weapon, you’re looking at perhaps a year in prison as a first time offender with even the possibility of probation.
If you have a 30 pills that are classified as opiates – Oxycontin – you face, under North Carolina law, at least 6 years in prison with no way below that except by substantial assistance.
Does this make sense?
A good final step is to consider whether there aren’t better approaches – such as those in Portugal – that would emphasize treatment over incarceration.