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.

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