Mandatory Minimums and Safety Valve Sentencing

Mandatory minimum sentences are those that require offenders to spend a predetermined amount of time in prison. The sentences are generated in the legislature by law and remove the discretion from the judges of the judicial branch when handing down sentences for certain types of offenses. Mandatory minimums are most often imposed in drug crimes, violent crimes and repeat offenses. The premise behind the minimum sentencing is to limit the irregularity of outcomes due to judicial discretion.

The mandatory minimum sentences began in the Federal System and were part of the Anti-Drug Abuse Act of 1986. That legislation combatted the “War on Drugs” by imposing mandatory prison terms for specified amounts of cocaine powder and crack. At about that same time, the Federal Sentencing Guidelines were enacted. The Guidelines were a set of rules that were supposed to make sentencing more uniform for those convicted of more serious crimes.

Supreme Court on Mandatory Minimum Sentences

Constitution of the United States of America

Although the Federal Sentencing Guidelines were meant to be mandatory, in 2005, the Supreme Court held that they violated the Sixth Amendment right to trial by jury. The Guidelines are now advisory only, but the mandatory minimum sentences continue to exist.

Some would argue that the mandatory sentencing is also unconstitutional. This is due to the fact that the separation of powers dictate that the three separate branches of government operate in a way that provides a system of checks and balances to avoid overreaching by one branch into another. Since mandatory sentences are a product of the legislative branch, they essentially tie the hands of the judicial branch by limiting the discretion of judges to sentence criminals.

Safety Valve Sentencing

Paradoxically, instead of repealing the mandatory minimum sentences, Congress passed a law that allowed a judge to depart from the mandatory minimum sentence for offenses that involved non-violent drug crimes. This law became and is referred to today as a “safety valve.” The departure from the mandatory minimum sentences became available to those offenders who offered substantial assistance to the government in prosecuting other individuals. Qualification for the substantial assistance is ordinarily only available upon motion of the government under 18 USC § 3553(e) and Rule 35(b) of the Federal Rules of Criminal Procedure; however, 18 USC 3353(f) permits a sentencing court to disregard a statutory minimum sentence for the benefit of a low-level, nonviolent, cooperative defendant with minimal prior criminal record. It is then up to the discretion of the judge to make a determination of how much time should be shaved from the minimum.

Following in the footsteps of the Federal Government, several states have also enacted both mandatory minimum sentences and safety valve legislation. In South Dakota, SDCL § 22-42-2 states the law for the mandatory minimum sentences for drug crimes:

The distribution of a substance listed in Schedules I or II to a minor is a Class 2 felony. A first conviction under this section shall be punished by a mandatory sentence in the state penitentiary of at least one year, which sentence may not be suspended. Probation, suspended imposition of sentence, or suspended execution of sentence may not form the basis for reducing the mandatory time of incarceration required by this section. A second or subsequent conviction under this section shall be punished by a mandatory sentence in the state penitentiary of at least ten years, which sentence may not be suspended. Probation, suspended imposition of sentence, or suspended execution of sentence may not form the basis for reducing the mandatory time of incarceration required by this section. However, a first conviction for distribution to a minor under this section shall be punished by a mandatory sentence in the state penitentiary of at least five years, which sentence may not be suspended. Probation, suspended imposition of sentence, or suspended execution of sentence may not form the basis for reducing the mandatory time of incarceration required by this section. A second or subsequent conviction for distribution to a minor under this section shall be punished by a mandatory sentence in the state penitentiary of at least fifteen years, which sentence may not be suspended. Probation, suspended imposition of sentence, or suspended execution of sentence, may not form the basis for reducing the mandatory time of incarceration required by this section.

However, SDCL § 22-42-2.3, follows on the heels of the mandatory sentences with a safety valve:

The sentencing court may impose a sentence other than that which is required by § 22-42-2 if the court finds that mitigating circumstances exist which require a departure from the mandatory sentence imposed by § 22-42-2. The court’s finding of mitigating circumstances allowed by this section and the factual basis relied upon by the court shall be in writing.

SDCL § 22-42-2.3 allows for a departure from the mandatory minimum sentences and, unlike Federal Rule 34 (b), does not require the motion of the prosecution or any type of substantial assistance. The statute only requires “mitigating circumstances” that could literally be anything from treatment, to acceptance of responsibility, good works, lack of repeat offenses or even the time since the offense. And while suspended imposition of sentence or execution of sentence may not form the basis for reducing the mandatory time of incarceration under § 22-42-2, the departure could very well include either the suspended imposition or execution of sentence as a means to avoid or void a felony record altogether.

Repealing Mandatory Sentencing Minimums

prison or jail

The advent of mandatory minimums as sentences for certain crimes brought Constitutional challenges and a reduced confidence in the judiciary. Safety valve legislation was therefore enacted in order to right the wrongs that the mandatory minimums brought to sentencing. Reforms are underway in several states, most notably North Dakota, to repeal the mandatory minimums as well as the safety valves in order to restore the sentencing power and the discretion of the judge.

If you have been charged with a crime that includes a mandatory minimum or have questions about safety valve legislation, contact the lawyers at Wilka, Welter, and Ash for a free consultation about your case.

What to Know Before You Go to Jail or Prison

Regardless of representation there is always a possibility of jail or prison time if you have committed a crime that has a sentence which mandates it. Typically, misdemeanor crimes include some form of probation or jail sentence; however, felonies may include prison time.

What is the difference?

Jail is an institution most often run by local city or county government. In Minnehaha County, the jail is run by the Sheriff’s Department, which is a county government organization. Stays in jail are often short term, under a year, and include both those persons sentenced for less than one year and those awaiting trial who either could not afford a bond, or are being held without bond.

When you are arrested or report for your sentence in Minnehaha County, you will be taken first to intake. This is a small room where you will be searched, asked a number of questions and then dressed in an orange jumpsuit.

what to expect in jail vs prison

From intake you progress to holding. Holding is a larger room with several chairs, a television and a desk with corrections officers seated up front. Depending on the situation, you may be seated in the large area to await picture taking, fingerprinting or blood testing.

Once those have been completed, you will be held in one of several rooms where others are most likely also being held. You will be given a blanket and a mat to lay on, and depending on the time of day, a sack breakfast, lunch or dinner. If you are not bonded out or reporting for jail, you will eventually be taken to the main jail. This process is done in groups and you may be in holding for up to 12 hours.

Once you are escorted into the jail, you will be placed either in a dormitory setting or in a cell, depending on the nature and severity of your crime and capacity. Each “pod” is overseen by an officer and here you may engage in recreational activities at certain times, or allowed to use the vending machines to buy food or other goods. You will be issued the necessities such as a toothbrush, hair brush and toothpaste. Hot food is served in the jail three times per day. There is no outdoor access while you are in the jail.

Prison is for longer term stays and is operated by the South Dakota Department of Corrections (DOC). When you are sentenced to a term in state prison, you will either be taken from jail or self-surrender. You should bring with you proper identification and a check for any funds that you intend to be able to use for commissary. Commissary is basically a store where you will be able to purchase toiletries, snacks, a television, or other luxuries as you earn the privilege to have them.

prison vs jailWhatever clothing you are wearing will be bagged up and what you will leave in unless someone brings different clothing for you prior to release.

Upon admission, you will be assigned to a unit team. That team will be made up of a manager, coordinator, and parole staff. They will oversee your case and programming while you are incarcerated. You will be assigned a cell and or bunk mate based on a classification system determined by your answers to a series of tests that you are given.

During your stay you will be given three meals per day, health and dental care and a banking system that allows for your purchases through the commissary system, income from prison employment assignment and the paying of fines and restitution, if applicable. You will be given access to mail and phone as well as visiting privileges. All of your visitors must apply and you will need to designate who is able to visit on your visitor list. This is something you will want to set up as soon as possible due to the fact that approval can take some time.

The amount of time you serve on your sentence is determined on a parole system, which takes into account the type of offense and the number of offenses. For example, a Class 6, non- violent felon will only serve 25 percent of their total sentence. Generally speaking, prison is much more comfortable than jail due to the programming options, outdoor time, commissary, and other recreational opportunities.

If you are sentenced to jail or prison, there are many things you should consider and do as preparation for your time away. The following is a list of things to consider:

  1. Educate yourself before you get there. This blog is simply a synopsis of what to expect. The prisons have handbooks that may be available to you. You should attempt to procure one, read it and be ready to ask questions of your counselor.
  2. Resolve any medical or especially dental problems before you go. Medical care in prison is usually substandard and can take months before you see a doctor if you are not in an emergency situation. Dental issues are resolved by pulling teeth only and you do not get replacements.
  3. Get your finances in order. If you have outstanding debt, try to pay it off as it will simply go to collections against you while you are gone. Also, make sure that you have a trusted individual on the outside to fund your prison account either from savings or on loan from a parent or grandparent. You will probably need about $250 to $400 a month to live comfortably and be able to buy snacks, toiletries and other comfort items.
  4. Consider what you would like to do with your time, you will have a lot of it. Some choose to read, some write a book, others plan a business or participate in online classes and get a degree (if available). Having a purpose for your time will make the time go faster.
  5. If you smoke, do everything you can to quit comfortably. In jail or prison, you will be forced to give up smoking or any other controlled substances cold turkey.
  6. If you are on medications, check with the prison to make sure that they are available to you while you are inside and if they are not, make a plan for your health with your doctor. Many medications are not given to prisoners and you will not have access to them. Some examples include anxiety medications and sleep aids.
  7. Learn to say please and thank you. Respect is everything in prison. The more respectful you are the better you will get along.
  8. Check your pride at the door. There is no such thing as pride in prison and it will only get you in trouble with the prisoners and guards.
  9. Make sure you get all the phone numbers and addresses of your visitors and bring them with you. You will need to fill out forms to get them on your visitor list and you won’t be allowed use of your phone for information.
  10. If you have children, make sure that you have custody arranged and visitation scheduled for your parents who will bring them to see you. If you are at odds with your ex, now might be the time to mend fences, if possible. You will be away from your kids for a long time. You don’t want to be forgotten or have them think you’ve forgotten about them.
  11. Plan for your diet. Make sure that you have dietary needs worked out prior to going. Sometimes kosher or halal meals are available to those with dietary needs.
  12. Find God. Prison is lonely and you will feel guilt for what you have done. Having a higher power is a constant source of forgiveness, companionship and hope.
  13. Start a workout plan. Prison is a great place to get in shape and the more you know before you get there, the better prepared you will be for being creative in your fitness journey.
  14. Talk to your lawyer about any pending or potential cases against you. It is very difficult to defend yourself civilly or criminally behind bars and time for future actions against you may be added to your sentence if you are convicted while in jail or prison.

Going to jail or prison can be a scary time, but with preparation it can be more manageable and you can make your time go more quickly. If you have questions about your sentence or jail or prison generally, please discuss the situation with your lawyer who can find the resources to ease your transition.