U.S. Sentencing Guidelines, Mandatory Minimums, Safety Valve Encourage Snitches, Promote False Testimony, Prevent Just Sentences

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Anytime a new penal statute uses the term “reform” you can take to it the bank that the result will produce just the opposite; that its objective to correct a perceived and politically charged threat will, more than likely than not, harvest a new crop of worse injustices.

Thus is the case with the federal Sentencing Reform Act of 1984 (“SRA”), passed with strong bipartisan support during the Reagan presidency after many years of debate and study. The first indicator that the SRA was not about “reform” was that it was born out of the omnibus Comprehensive Crime Control Act which was designed to overhaul the federal criminal justice system. Notwithstanding that SRA was the afterbirth of a sweeping congressional effort to “get tough” on crime, proponents of SRA hailed its primary purposes which were: “(1) to establish comprehensive and coordinated statutory authority for sentencing [currently found in 18 U.S.C. § 3553]; (2) to address the seemingly intractable problem of unwarranted sentencing disparity and enhance crime control by creating an independent, expert sentencing commission to devise and update periodically a system of mandatory sentencing guidelines; and (3) principally through the sentencing commission to create a means of assembling and distributing sentencing data, coordinating sentence research and education, and generally advancing the state of knowledge about criminal behavior.”

One of the SRA’s chief sponsors, the late Sen. Edward M. Kennedy, believed the U.S. Sentencing Commission (“Commission”) and the U.S. Sentencing Guidelines (“Guidelines”) the Commission would promulgate would accomplish three primary policy goals: 1) produce just punishment, deterrence, incapacitation and rehabilitation; 2) provide certainty and fairness by eliminating the sentencing disparity, which had plagued the federal court system, through individualized sentencing that considered both aggravating and mitigating factors; and 3) enhance the knowledge of human behavior as it pertained to the criminal justice system.

Last year, the Commission issued a report based upon independent analysis and research,Demographic Differences in Federal Sentencing Practices: An Update of the Booker Report’s Multivariate Regression Analysis, which made the following findings:

  • Black male offenders received longer sentences than white male offenders. The differences in the sentence length have steadily increased since Booker [a 2005 U.S. Supreme Court decision which held the U.S. Sentencing Guidelines are “advisory” and not mandatory as they had been uniformly interpreted since SRA’s enactment].
  • Female offenders of all races received shorter sentences than male offenders. The difference in sentence length fluctuated at different rates in the time periods studied for white females, black females, Hispanic females, and “other” female offenders (such as those of Native American, Alaskan Native, and Asian or Pacific Islander origin).
  • Non-citizen offenders received longer sentences than offender who were U.S. citizens. The differences in sentence length have steadily increased since Booker.
  • Offenders with some college education received shorter sentences than offenders with no college education. The differences in sentence length have remained relatively stable across the time periods studied.
  • The data were inconsistent as to the association between an offender’s age and the length of sentence imposed.

Thus, thirty-six years after SRA’s enactment, federal sentencing practices are just as arbitrary, discriminatory, and counterproductive to the goals of justice as they were before SRA’s enactment. This has been especially true in federal sentencing practices in drug cases, most notably those involving crack/powder cocaine. Besides the individual biases of some federal judges in these cases, the primary problem is the mandatory minimum sentence requirements in most drug cases.

Mandatory minimum sentencing was created by Congress in 1986, two years after the enactment of SRA. The Drug Policy Alliance (“DPA”) points out that mandatory drug sentences are based on three factors: type of drug, weight of the drug mixture (or alleged weight in conspiracy cases), and the number of prior convictions. The purpose of mandatory minimums was to target “drug kingpins” but, as DPA notes, the U.S. Sentencing Commission has found that only 5.5 percent of the crack cocaine cases and 11 percent of all federal drug cases involve “high-level drug dealers.”

In 1994, in another futile effort to eliminate the ever-increasing disparity between the “least culpable” and “more culpable” drug offenders, Congress enacted more “sentencing reform” legislation. This time it was the Mandatory Minimum Sentencing Reform Act, codified in § 3553(f), which created a “safety valve” in the Guidelines. The District of Columbia Court of Appeals in In Sealed Case (Sentencing Guidelines “Safety Valve”) in 1997 said the “safety valve” provisions ofU.S.S.G. § 5C1.2 requires U.S. district court judges to disregard mandatory minimums in certain drug cases and instead sentence a defendant pursuant to the Guidelines when he/she satisfies five indices of reduced culpability: “1) the defendant has no more than one criminal history point; 2) the defendant ‘did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense’; 3) the offense did not result in death or serious bodily injury; 4) the defendant was not a leader or organizer of the offense; and 5) the defendant has fully cooperated with the government.”

The defendant must satisfy all five indices to warrant a “safety valve” departure from a mandatory minimum sentence. In 2008 the Families Against Mandatory Minimums (“FAMM”) found that since 1995 more than 63,272 federal drug offenders received the benefit of a “safety valve” sentence, which saved the federal government $25,000 per year, shaved off each offender. FAMM touts the benefits of federal “safety valve” provisions as follows:

  • Give courts flexibility to prevent unjust sentences: safety valves allow courts – in very narrow circumstances – to sentence a defendant below the mandatory minimum if the mandatory minimum is too lengthy or doesn’t fit the offender or the crime.
  • Protect public safety: safety valves don’t mean that people get off without any prison time, just that they don’t get any more prison time than they deserve. Safety valves thus help 1)  prevent prison overcrowding, 2) avoid the need to release violent offenders early to make room for nonviolent offenders entering the system, and 3) save scarce space and resources for those who are a real threat to the community.
  • Save taxpayers money: when courts sentence offenders below the mandatory minimum, they spend less time in prison than they would otherwise be required to, which results in less corrections costs for taxpayers.

FAMM, however, advocates that the “safety valve” provisions not only be expanded for all drug offenders but extended to all federal offenses mandating a mandatory minimum. The advocacy group points out that the current “safety valve” provisions are so strict that many nonviolent, low-level drug offenders cannot satisfy its five indices. The group notes that in 2008 while 52 percent of all drug offenders had little or no criminal history and 80 percent of them did not have or use a weapon and only 5.7 percent were considered leaders, managers or supervisors of others, only 25 percent of the drug offenders benefitted from the safety valve provisions.

The Commission disputes these FAMM conclusions. In a March 2009 report titled “Impact of Prior Minor Offenses on Eligibility for Safety Valve,” the Commission reported:

“As part of its ongoing review and amendment of the guidelines, the commission, in August 2006, began to examine various aspects of the criminal history rules located in Chapter Four of the guidelines, including the treatment of misdemeanor and petty offenses (minor offenses). The Commission hosted two roundtable discussions on November 1, 2006 and November 3, 2006, in Washington, D.C., to solicit input from judges, defense attorneys, probation officers, Department of Justice representatives, and members of academia as one component of this review.  The Commission also gathered information through its training programs, the public comment process, and comments received during a public hearing held in March 2007.

“During the process, some commentators hypothesized that the inclusion of minor offenses in the criminal history calculation has an unwarranted adverse impact on offenders’ criminal history scores and, ultimately, their guideline ranges and sentences. In April 2007, the Commission promulgated an amendment to respond to these concerns and modify the provisions determining whether and when certain minor offenses are counted in the criminal history score.

“The dialogue leadings to the promulgation of the amendment focused, in part, on the frequency with which prior minor offenses caused a defendant convicted of drug trafficking to become ineligible to receive the benefit of the safety valve relief provided by statute and guideline. Data reviewed by the Commission in connection with the amendment showed that relatively few drug trafficking offenders are excluded from receiving the safety valve because of the guideline provision regarding minor offenses.”

In support of this conclusion, the Commission said it examined 24,483 drug offenders, and that 9,115 of them (37.2 percent) received the benefit of the safety valve provisions. Of the 9,115 safety valve beneficiaries, 1,519 of the offenders had a prior “minor offense” in their criminal history which did not affect their safety valve eligibility. Further, the Commission pointed out that of the 15,368 drug trafficking offenders who did not qualify for safety valve consideration, only 788 of them had a prior “minor offense” in their criminal history but who did not qualify because they failed to satisfy all five of the safety valve indices.

Whether the percentage of drug offenders who receive safety valve consideration is 25 percent as stated by FAMM or 37 percent as stated by the Commission is relatively immaterial. The issue, we feel, is that the safety valve considerations are much too stringent to achieve meaningful sentencing reform. When less one-third of the offenders receive the benefit of a “reform” sentencing statute, then it cannot reasonably be said that the desired reform is truly meaningful.

We feel that only two of the five safety valve indices are relevant to meaningful reform objectives: whether a weapon was possessed or used during the offense; and whether the offense resulted in the death or serious bodily injury of anyone.

We would like to stress that we find it particularly offensive that a fundamental aspect of the safety valve statute is that the defendant must become a full-fledged “snitch” to secure the benefit, not only against himself but anyone else who may have been involved, no matter how remote, in any criminal activity associated with the offense. Failure to fully and completely “snitch” is a sufficient basis for the Government to oppose a safety valve benefit and for the court not to extend it.

Finally, we have not only become disillusioned with the Guidelines, even if they are now “advisory,” as a sentencing reform device but have become convinced they will never produce the fair and impartial justice they were designed to achieve in the federal sentencing process. While we are not prepared to return to unfettered judicial discretion in sentencing, we are now convinced that the Guidelines, regardless of how many times they are amended, are unworkable in producing equal, racially neutral sentencing practices in the federal courts.

The Guidelines, no matter their original intent, have not led to any meaningful reform.  The result of years of Guideline sentencing has been much less about than justice and fairness in sentencing than about treating individuals as generic automatons, who have no personal and unique histories, backgrounds or accomplishments.  The Guidelines have been, and continue to be, used to force defendants to plea guilty and cooperate with the Government or face a severe and draconian sentencing regime.  The Guidelines have been used to pressure defendants to accept plea agreements rather than exercise their right to trial by jury, for fear they will lose downward sentencing adjustments for “acceptance of responsibility” and saving the government time preparing for trial.  The Guidelines have led to a justice system dependent upon snitches, in which questionable cases are prosecuted by a Government, which understands the immense pressure place upon a defendant to plea guilty, regardless of meritorious defenses the defendant may have or the reality of actual innocence.  This is not the American way…

By: Houston Criminal Defense Attorney Lawyer John Floyd and Paralegal Billy Sinclair