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Minimal Improvement

On December 18, 2018, Congress passed the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Each Person Act. As the acronym would suggest, the FIRST STEP Act is seen as the first stepping stone towards more comprehensive reforms to the American criminal justice system. One of the FIRST STEP Act’s provisions is widening the ‘safety valve’ to federal mandatory minimum sentences. A mandatory minimum automatically requires a predetermined sentence for certain crimes committed in certain conditions, limiting the ability of judges to give shorter sentences based on mitigating circumstances. Due to the new safety valve, judges now have more discretion to bypass mandatory minimums for drug offences where the offender has a limited criminal history. Unfortunately, the safety valve is no replacement for directly reducing mandatory minimums. While it does achieve the goal of reducing sentences, it defeats the purpose of the mandatory minimum by reintroducing judicial discretion and the bias that goes along with it. Overall, this part of the bill is a step backwards in creating an equitable justice system.

The safety valve in the FIRST STEP Act is an extension of the safety valve previously in place. Before the change, an offender was eligible for exemption from mandatory minimums only if they had an extremely limited criminal history, did not threaten violence or seriously harm anyone during the crime, did not organize the crime, and provided all information relating to the crime to the government. The safety valve in the FIRST STEP Act broadens the previous version by allowing for slightly more extensive criminal history. Federal sentencing guidelines are still in place even where a mandatory minimum is not. About 2,000 people per year are estimated to be eligible under the change.

Although mandatory minimums are now associated with the draconian excesses of the American criminal justice system, they were originally a progressive cause. Mandatory minimums in modern America began in the 1970s. Supporters believed that fixed sentencing would be a more fair system by eliminating disparate sentences. A federal crime is just as illegal in Alabama as Rhode Island. Differing sentences for people who committed the same crime under the same circumstances, based solely on the whims of the judge sentencing them, are clearly unfair. To illustrate this point, the American Civil Liberties Union opposed a fixed sentencing bill in California at the time because they believed the lengths of the sentences were too harsh, not on the principle of fixed sentencing.

It’s true that the penalties imposed by mandatory minimums have become extreme. In a 2017 report, the U.S. Sentencing Commission recommended that penalties should not be “excessively severe…” and that they should be “narrowly tailored.”  These extreme sentences have lead to an increase in the federal prison population. A common argument by supporters of the safety valve is that it will reduce overcrowding in federal prisons. Some 55.7% of federal inmates were convicted of a crime carrying a mandatory minimum. Sentences for inmates convicted of crimes with a mandatory minimum were sentenced for an average of 110 months, more than 4 times the average of those convicted for a crime without a mandatory minimum.  With such statistics, a safety valve that would reduce sentences by an estimated 21% for those eligible is understandably appealing.  

However, although prison populations stand to be reduced by the introduction of the new safety valve, the same could be achieved more directly by lowering the mandatory minimums for crimes affected by the safety valve or by triggering mandatory minimums more selectively. The FIRST STEP Act does little in these regards. It reduces the mandatory minimum for felony drug offences to 15 years from 20 years and reduces conviction for a third felony drug offence from life in prison to 25 years. Instead of reducing the length of mandatory minimums, the FIRST STEP Act eliminates them entirely in all cases eligible for the safety valve. Because reducing the length of mandatory sentences is unappealing to lawmakers who want to appear tough on crime, the concept of a safety valve is a less overt reform. Yet with this bipartisan compromise, progressive reformers open the judicial system to the very bias they intended to remove.

There’s no reason to believe that sentences imposed under the safety valve will be uniquely immune to the forces that create disparate sentences in other cases. A 2017 report by the U.S. Sentencing Commission found that “Black male offenders continued to receive longer sentences than similarly situated White male offenders.” The purpose of the mandatory minimum is to remove undue leniency, whether that leniency occurs because of geography, racial bias, gender bias, or any other factor. In the case of fixed sentences, the public has the power to change them through their elected representatives. In the case of sentences imposed by appointed judges, the public lacks that power.

The First Step Act includes some relief for extreme mandatory minimums, which is a step in the right direction. However, Congress has washed their hands of the issues that remain by referring them to judicial discretion. In their efforts to compromise, reformers have made the safety valve a stop-gap at best and a tool of the very injustice they intended to eliminate at worst.

Photo: “U.S. Courthouse in Pensacola