Legislation mandating additional reductions
Two bills with bipartisan support are currently under consideration.
Senators Patrick Leahy (D–VT) and Rand Paul (R–KY) have introduced the Justice Safety Valve Act of 2013, which would apply to all federal mandatory minimums.
Mandatory minimum sentences have not eliminated sentencing disparities because they have not eliminated sentencing discretion; they have merely shifted that discretion from judges to prosecutors. Judges may have to impose whatever punishment the law requires, but prosecutors are under no comparable obligation to charge a defendant with violating a law carrying a mandatory minimum penalty. As a practical matter, prosecutors have unreviewable discretion over what charges to bring, including whether to charge a violation of a law with a mandatory minimum sentence, and over whether to engage in plea bargaining, including whether to trade away a count that includes such a law.
Moreover, even if a prosecutor brings such charges against a defendant, the prosecutor has unreviewable discretion whether to ask the district court to reduce a defendant’s sentence due to his “substantial assistance” to the government. What is more, critics say, unbridled prosecutorial discretion is a greater evil than unlimited judicial discretion.
Prosecutors are not trained at sentencing and do not exercise discretion in a transparent way. Critics also claim that prosecutors, who stand to gain professionally from successful convictions under mandatory minimums, do not have sufficient incentive to exercise their discretion responsibly. Indeed, nowhere else in the criminal justice system does the law vest authority in one party to a dispute to decide what should be the appropriate remedy.
That decision always rests in the hands of a jury, which must make whatever findings are necessary for a punishment to be imposed, or the judge, who must enter the judgment of conviction that authorizes the correctional system to punish the now-convicted defendant. Furthermore, they contend, mandatory minimum sentences do not reduce crime.
In many drug operations, if a low-level offender is incapacitated, another may quickly take his place through what is known as the “replacement effect.” In drug cases, mandatory minimum sentences are also often insensitive to factors that could make incapacitation more effective, such as prior criminal history. In theory, mandatory minimum sentences enable the government to “move up the chain” of large drug operations by using the assistance of convicted lower-level offenders against senior offenders.Mandatory minimum sentences are the product of good intentions, but good intentions do not always make good policy; good results are also necessary.