Drug Mandatory Minimum Sentencing: Not Safe with Safety Valve

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As any federal criminal law practitioner knows, there are a daunting set of mandatory minimum offenses in the federal law that trump any other sentencing provisions. The most common of the mandatory minimum offenses are for drug offenses.

Even a small amount of methamphetamine (50 grams, about a tenth of a pound ), cocaine ( 5 kilos ) or heroin (1 kilo) can make even a first-time offender subject to a ten-year mandatory minimum sentence. And since there is no parole in the federal system, this means that a first-time drug mule could wind up spending more than eight years in jail! And many times these drug mules don’t even
know the kind of drug they are carrying or the quantity: many are told that it is marijuana.

When we still had an attorney general named Eric Holder, he issued a memo to prosecutors urging them under many circumstances not to allege the quantity of drugs so as to circumvent these harsh minimums in routine border-bust, mule cases. But our new President quickly puts an end to the Holder memo.

So now, all that is left to avoid the mandatory minimum absent a charge reduction, which is very rare, is (1) cooperation or (2) “safety valve.” Cooperation, or as it is known in the vernacular as “snitching,” is obviously not available to many defendants because most know little about the structure of the DTO (drug trafficking organization.) And there are practical considerations like not wanting to get your family killed. Yes, the bad guys sometimes find out about cooperation. Almost any astute defense attorney can read the docket and figure out easily if a defendant has been cooperating.

So now, about all that is left is “safety valve,” and it is grossly unfair and ineffective. Section 5C1.2 of the United States Sentencing Guidelines provides that the minimum sentence does not apply when the defendant plays a limited role in the narcotic offense, truthfully discloses the facts of the case to the prosecutor, and most important does not have more than one criminal history point. Herein, lies the problem.

I have a client who gave his underage girlfriend (seventeen years old) a ride to her house after 10:00 p.m., a violation of curfew laws. He pled guilty (before I represented him) to Contributing to a Delinquency of a Minor and is still on informal probation. (By the way, he is now married to her.) He is facing a ten-year minimum sentence instead of a probable two or three years in jail just for making sure his future bride got home safe! And even one Driving While Intoxicated Offense for which a person is on informal probation is disqualifying for safety valve. Not fair, of course, unless you happen to have the last name Sessions.

It makes sense to give a person a break from a mandatory ten year sentence when they have no criminal record. But it makes not sense to disqualify him or her for a very minor charge.

The only way that this problem can be resolved is with either a change in the Administration (not likely for at least three more years) or legislation. Many bills have been proposed to remedy the situation, but they simply die before being approved by the House and the Senate. Senator Rand Paul has proposed a bill this year, S. 1127, the “Justice Safety Valve Act.” which would allow a judge to impose a lower sentence than the mandatory minimum in the interest of justice.

We should all write our Congressmen and rally around this bill. Safety valve is way too limited as currently written. Mandatory minimum terms often subvert justice. (This is a topic for another day.) But conservatives and liberals alike should agree that the present safety valve needs revamping. I believe that most individuals have no idea about how the federal drug laws are applied in the United States. As educated and informed individuals, we should all be aware and speak out on this subject.

It is said that tears are the safety valve of the heart. Justice is crying profusely because of the current state of the safety valve law.

ABOUT THE AUTHOR: Russell S. Babcock
Russell Babcock is a preeminent federal and state criminal defense attorney. He is bilingual en Espanol.
He has won many awards for his work including Superlawyers, best criminal attorney, best appellate attorney. He is a certified criminal law specialist. The emphasis of his firm is on complex federal felonies including border and drug crime, white-collar crime and appeals He has argued six times in front of the California Supreme Court. Mr. Babcock received his JD from the University of California Davis in 1998.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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