Whenever Drug Warriors hear challenges about how non-violent, first-time offenders are being unjustly sentenced to rot in cages for decades, their go-to rebuke is the adored Sentencing Guidelines “safety valve.” They say that the valve saves those who are regarded as the most sympathetic defendants in the drug war from being sentenced to cruelly disproportionate sentences. But the real valve, as seen on the ground, provides a different picture.
The following is a not-uncommon tale involving a federal narcotics case and how the “safety valve” sentencing provision, which is meant to help out those criminal justice virgins, can be rendered meaningless in light of how drug conspiracies are usually prosecuted:
Joe is a young guy who hangs with the “wrong crowd” but has never had a brush with the law. In times of financial strife and sheer boredom – he’s a millennial who has a shit job and a girlfriend he can’t stand — he gets asked by one of his amigos to drive a car that has some meth in it from point A to point B. He’s only told that there are 2 kilos hidden inside, nothing else, and agrees to get paid $1,000 per kilo. It’s not much, but he’s new to the game and naïve, so he takes it.
He doesn’t package the stuff, load it into the car, negotiate the deal, or even meet the buyer or seller. He just agrees to drive the drugs. It turns out that his amigo has been under government surveillance, and eventually Joe gets caught with the car and the stuff. He gets indicted in federal court, and is charged with conspiring with his confederates to possess with intent to distribute 50 grams of pure* meth.
Because it’s a drug conspiracy, the government does not have to prove an overt act, but that’s neither here nor there, at least for the moment. What’s driving Joe into a panic as he sits in pretrial detention is one thing the prosecutor said during his bond hearing:** Joe is facing a mandatory minimum of ten years in federal prison for the 50 grams of meth in the indictment.
While talking to a cellie While keeping to himself, because that’s what his lawyer told him to do, Joe overhears someone talking about something called a “safety valve,” and how it gives sentencing breaks to people without criminal records. A ray of hope, and Joe can’t wait to ask his lawyer about this discovery during their next meeting.
In 1994, Congress created what’s called the “safety valve” provision of the federal Sentencing Guidelines. It was created for the perceived purpose of giving first-time offenders a chance to escape the dreaded mandatory minimum sentences that are triggered by drugs. Hell, it only took them years of putting people in cages for insane lengths of time to realize there was an issue with mandatory minimums,*** but no one ever said being a quick study was a prerequisite to serving in Congress.
Title 18 U.S.C. § 3553(f)(1)-(5) provides the checklist that people like Joe have to satisfy in order to unshackle his sentencing Judge’s hands from the mandatory minimum that was handed down by Congress, out of its ass in its infinite wisdom:
(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines before application of subsection (b) of §4A1.3 (Departures Based on Inadequacy of Criminal History Category);
(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 to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848; and
(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.
Tl;dr version: Defendant has no criminal history; didn’t use or threaten violence; wasn’t a leader of the conspiracy or engage in continuing enterprise; has to sit down with the government and tell them all the naughty things that led to his arrest. Joe checks out, but the government has a bludgeon up its sleeve that can still land him near the 10-year sentencing range, if not the minimum.
Remember the 2 kilos that Joe never saw, touched, or even negotiated over? The ones that he got paid a measly $2 grand to transport, while his friends would’ve netted much more from the sale? Under drug conspiracy laws, the government can still ask the Judge to sentence Joe for the entire 2 kilos, and not just the 50 grams of meth that triggered the mandatory minimum.
And where does 2 kilos of “pure” meth land Joe on the sentencing chart, with his clean record? At level 36, the second highest for drug trafficking, yielding a sentencing guideline of 188 to 235 months. So, after Joe gets his reduction as per the safety valve and “accepting responsibility” by foregoing trial and giving up in a “timely fashion”? At level 31, with a range of 108 to 135 months.
Yes, he’s been rid of the 10-year mandatory minimum that was hanging over his head, and his judge can now sentencing him below that. But bear in mind appellate courts have considered sentences within the guidelines to be “reasonable,” and thus it will still be up to a learned judge to stop the insanity by looking the government in the eye and saying, “Enough!”
*Meth is so frowned upon by Congress that 50 grams carries the same 10 year minimum as does 1 KG of heroin or 5 KG of coke. Even 50 grams “mixed” meth carries a 5 year minimum.
**The government used Joe’s lifetime of good conduct against him during the bond hearing: it told the court that since he’s never done time, let alone face charges, the fact that he’s facing such a stiff term for the first time means he is likely to flee. See how that works?
***Congress reinstated mandatory minimums for drugs in the Anti-Drug Abuse Act of 1986, based on public outcry following the overdose of Boston Celtics first-round draft choice, Len Bias.