{ "id": "R41326", "type": "CRS Report", "typeId": "R", "number": "R41326", "active": true, "source": "CRSReports.Congress.gov, EveryCRSReport.com, University of North Texas Libraries Government Documents Department", "versions": [ { "source_dir": "crsreports.congress.gov", "title": "Federal Mandatory Minimum Sentences: The Safety Valve and Substantial Assistance Exceptions", "retrieved": "2022-08-17T04:03:50.576114", "id": "R41326_12_2022-07-05", "formats": [ { "filename": "files/2022-07-05_R41326_f33f59f106bacf3eb67d28025cbf5ad6e7539362.pdf", "format": "PDF", "url": "https://crsreports.congress.gov/product/pdf/R/R41326/12", "sha1": "f33f59f106bacf3eb67d28025cbf5ad6e7539362" }, { "format": "HTML", "filename": "files/2022-07-05_R41326_f33f59f106bacf3eb67d28025cbf5ad6e7539362.html" } ], "date": "2022-07-05", "summary": null, "source": "CRSReports.Congress.gov", "typeId": "R", "active": true, "sourceLink": "https://crsreports.congress.gov/product/details?prodcode=R41326", "type": "CRS Report" }, { "source": "EveryCRSReport.com", "id": 591975, "date": "2019-02-22", "retrieved": "2019-12-20T19:57:19.970327", "title": "Federal Mandatory Minimum Sentences: The Safety Valve and Substantial Assistance Exceptions", "summary": "Federal law requires a sentencing judge to impose a minimum sentence of imprisonment following conviction for any of a number of federal offenses. Congress has created three exceptions. Two are available in any case where the prosecutor asserts that the defendant has provided substantial assistance in the criminal investigation or prosecution of another. The other, commonly referred to as the safety valve, is available, without the government\u2019s approval, for a handful of the more commonly prosecuted drug trafficking and unlawful possession offenses that carry minimum sentences.\nQualification for the substantial assistance exceptions is ordinarily only possible upon the motion of the government. In rare cases, the court may compel the government to file such a motion when the defendant can establish that the refusal to do so was based on constitutionally invalid considerations, or was in derogation of a plea bargain obligation or was the product of bad faith. \nQualification for the safety valve exception requires a defendant to satisfy five criteria. His past criminal record must be minimal; he must not have been a leader, organizer, or supervisor in the commission of the offense; he must not have used violence in the commission of the offense, and the offense must not have resulted in serious injury; and prior to sentencing, he must tell the government all that he knows of the offense and any related misconduct. \nIn response to a congressional request, the U.S. Sentencing Commission recommended expansion of the safety valve. The First Step Act, P.L. 115-391, broadened the safety valve for the benefit of (1) defendants with slightly more serious criminal records and (2) defendants convicted under the Maritime Drug Enforcement Act.", "type": "CRS Report", "typeId": "REPORTS", "active": true, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "https://www.crs.gov/Reports/R41326", "sha1": "d37e0435735ef4310d4377c4a7c092704769faf2", "filename": "files/20190222_R41326_d37e0435735ef4310d4377c4a7c092704769faf2.html", "images": {} }, { "format": "PDF", "encoding": null, "url": "https://www.crs.gov/Reports/pdf/R41326", "sha1": "05723582fa2dc28ac08c814021191576f0185add", "filename": "files/20190222_R41326_05723582fa2dc28ac08c814021191576f0185add.pdf", "images": {} } ], "topics": [ { "source": "IBCList", "id": 4792, "name": "Criminal Justice Reform" }, { "source": "IBCList", "id": 4887, "name": "Corrections" } ] }, { "source": "EveryCRSReport.com", "id": 444824, "date": "2015-08-25", "retrieved": "2016-04-06T18:31:31.699976", "title": "Federal Mandatory Minimum Sentences: The Safety Valve and Substantial Assistance Exceptions", "summary": "Congressional Research Service\n7-5700\nwww.crs.gov\nR41326\nSummary\nFederal law requires a sentencing judge to impose a minimum sentence of imprisonment following conviction for any of a number of federal offenses. Congress has created two exceptions. One is available in all cases when the prosecutor asserts that the defendant has provided substantial assistance in the criminal investigation or prosecution of another, 18 U.S.C. 3553(e). The other, commonly referred to as the safety value, is available, without the government\u2019s approval, for a handful of the more commonly prosecuted drug trafficking and unlawful possession offenses that carry minimum sentences, 18 U.S.C. 3553(f).\nQualification for the substantial assistance exception is ordinarily only possible upon the motion of the government. In rare cases, the court may compel the government to file such a motion when the defendant can establish that the refusal to do so was based on constitutionally invalid considerations, or was in derogation of a plea bargain obligation or was the product of bad faith. \nQualification for the safety valve exception requires a defendant to satisfy five criteria. His past criminal record must be minimal; he must not have been a leader, organizer, or supervisor in the commission of the offense; he must not have used violence in the commission or the offense, and the offense must not have resulted in serious injury; and prior to sentencing, he must tell the government all that he knows of the offense and any related misconduct. \nCongress has instructed the United States Sentencing Commission to report on the operation of federal mandatory minimum sentencing provisions. A majority of the federal judges responding to a Commission survey agree that the two exceptions should be expanded. A number of Commission hearing witnesses have also urged that the provisions be amended. The Commission\u2019s report suggested that Congress consider expanding the safety valve to cover other offenses and to reach offenders with a slightly more extensive criminal record.\nContents\nIntroduction\t1\nSafety Valve\t1\nBackground\t1\nOne Criminal History Point\t3\nOnly the Non-violent\t4\nOnly Single or Low Level Offenders\t6\nTell All\t6\nSubstantial Assistance\t8\nBackground\t8\n\u201cUpon the Motion of the Government\u201d\t8\n\u201cTo Reflect a Defendant\u2019s Substantial Assistance\u201d\t9\n\nContacts\nAuthor Contact Information\t10\n\nIntroduction\nDepending on how the class is defined, there are hundreds of federal mandatory minimum offenses. Yet only a handful are prosecuted with any regularity, including under 21 U.S.C. 841 (trafficking in controlled substances), 844 (possession of controlled substances), and 960 (smuggling controlled substances). Congress has provided two escape hatches under which a court may sentence a defendant below the statutory mandatory minimum. One, 18 U.S.C. 3553(e), is available only on the motion of the prosecutor based on the defendant\u2019s substantial assistance to the government and without regard to the offense charged. The second, 18 U.S.C. 3553(f), requires neither substantial assistance nor the prosecutor\u2019s endorsement, but is limited to the mandatory minimum sentences required in five sections of the federal drug law. Each of the sections is reflected in a parallel provision in the United States Sentencing Guidelines.\nIn October 2009, Congress instructed the United States Sentencing Commission to prepare a report on the mandatory minimum sentencing provisions under federal law. In early 2010, the Commission conducted a survey of federal district court judges regarding their views on mandatory minimum sentencing. A majority of those responding endorsed amendments to the safety valve and substantial assistance exceptions. The Commission also held a public hearing at which several witnesses urged adjustments in the safety valve and substantial assistance provisions. The Commission subsequently recommended that Congress consider expanding the safety valve to cover other offenses and to reach offenders with a slightly more extensive prior criminal record.\nSafety Valve\nBackground\nLow level drug offenders can escape some of the otherwise applicable mandatory minimum sentences if they qualify for the safety valve found in 18 U.S.C. 3553(f). Congress created the safety valve after it became concerned that the mandatory minimum sentencing provisions could have resulted in equally severe penalties for both the more and the less culpable offenders. It is available to qualified offenders convicted of violations of the possession with intent, the simple possession, attempt, or conspiracy provisions of the Controlled Substances or Controlled Substances Import and Export Acts. \nIt is not available to avoid the mandatory minimum sentences that attend other controlled substance offenses, even those closely related to the covered offenses. For instance, \u00a7860 (21 U.S.C. 860), which outlaws violations of \u00a7841 near schools, playgrounds, or public housing facilities and sets the penalties for violation at twice what they would be under \u00a7841, is not covered. Those charged with a violation of \u00a7860 are not eligible for relief under the safety valve provisions. In addition, safety valve relief is not available to those convicted under the Maritime Drug Law Enforcement Act (MDLEA), even though the MDLEA proscribes conduct closely related to the smuggling and trafficking activities punished under \u00a7960 and \u00a7963. \nThe Supreme Court held in Alleyne \u201cthat any fact that increases the mandatory minimum is an element\u2019 [of the offense] that must be submitted to the jury,\u201d and proved beyond a reasonable doubt. Subsequent lower appellate courts, however, have held that Alleyne does not require the presentation to the jury or application of the reasonable doubt standard. Thus, for the convictions to which the safety valve does apply, the defendant must convince the sentencing court by a preponderance of the evidence that he satisfies each of the safety valve\u2019s five requirements. He may not have more than one criminal history point. He may not have used violence or a dangerous weapon in connection with the offense. He may not have been an organizer or leader of the drug enterprise. He must have provided the government with all the information and evidence at his disposal. Finally, the offense may not have resulted in serious injury or death. \nOne Criminal History Point\n[T]he defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines, 18 U.S.C. 3553(f)(1).\nThe criminal history point qualification refers to the defendant\u2019s prior criminal record. The Sentencing Guidelines assign criminal history points based on a defendant\u2019s past criminal record. Two or more points are assigned for every prior sentence of imprisonment or juvenile confinement of 60 days or more or for offenses committed while the defendant was in prison, was an escaped prisoner, or was on probation, parole, or supervised release. A single point is assigned for every other federal or state prior sentence of conviction, subject to certain exceptions. \nForeign sentences of imprisonment are not counted; nor are sentences imposed by tribal courts; nor summary court martial sentences; nor sentences imposed for expunged, reversed, vacated, or invalidated convictions; nor sentences for certain petty offenses or minor misdemeanors. The Sentencing Guidelines list two classes of these minor misdemeanor or petty offenses that are not counted for criminal history purposes and thus for safety valve purposes. One class consists of eight types of minor offenses, like hunting and fishing violations or juvenile truancy, that are not counted regardless of the sentence imposed. The other class consists of arguably more serious offenses, such as gambling or prostitution, that are only excused if the offender was sentenced no more severely than to imprisonment for 30 days or less or to probation for less than a year. Both classes also include similar offenses to those listed \u201cby whatever name they are known.\u201d\nTwo-thirds of the judges who responded to the Commission\u2019s survey favored expanding the safety valve criminal history criterion to encompass those with 2 or 3 criminal history points, although less than one-quarter favored expansion of the criterion further. Some of the Commission\u2019s hearing witnesses concurred. The Commission\u2019s report on mandatory minimums, in fact, recommends that Congress \u201cconsider expanding the safety valve ... to include certain offenders who receive two, or perhaps three, criminal history points under the guidelines.\u201d\nOnly the Non-violent\n[T]he 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, 18 U.SC. 3553(f)(2).\n[T]he offense did not result in death or serious bodily injury to any person, 18 U.S.C. 3553(f)(3).\nThe safety valve has two disqualifications designed to reserve its benefits to the non-violent. The weapon or threat of violence disqualification turns upon the defendant\u2019s conduct or the conduct of those he \u201caided or abetted, counseled, commanded, induced, procured, or willfully caused.\u201d It is not triggered by the conduct of a co-conspirator, unless the defendant aided, abetted, counselled ... the co-conspirator\u2019s violence or possession. Disqualifying firearm possession may be either actual or constructive. Constructive possession is the dominion or control over a firearm or the place where one is located. Disqualification requires the threat of violence or possession of a firearm \u201cin connection with the offense.\u201d In many instances, possession of a firearm in a location where drugs are stored or transported, or where transactions occur, will be enough to support an inference of possession in connection with the drug offense of conviction. \u201c[E]ven a single intimidating confrontation [is] enough to constitute a credible threat\u201d and is consequently safety valve disqualifying.\nThe Sentencing Guidelines define \u201cserious bodily injury\u201d for purposes of Section 3553(f)(3) as an \u201cinjury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation.\u201d On its face, the definition would include serious bodily injuries, such as hospitalization, suffered by the defendant as a result of the offense. Unlike the gun and violence disqualification in Section 3553(f)(2), the serious injury disqualification in Section 3553(f)(3) may be triggered by the conduct of a co-conspirator.\nOnly Single or Low Level Offenders\n[T]he 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 Section 408 of the Controlled Substances Act, 18 U.S.C. 3553(f)(4)(emphasis added). \nThe defendant must also establish that he or she was not \u201can organizer, leader, manager, or supervisor of others in the offense.\u201d The term \u201csupervisor\u201d is construed broadly and encompasses anyone who exercises control or authority of another during the commission of the offense. The Sentencing Guidelines disqualify anyone who receives a guideline level increase for their aggravated role in the offense. Thus, by implication, it does not require a defendant to have received a guideline increase based on his minimal or minor participation in a group offense nor does it disqualify a defendant who acted alone.\nTell All\n[N]ot 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, 18 U.S.C. 3553(f)(5).\nThe most heavily litigated safety valve criterion requires full disclosure on the part of the defendant. The requirement extends not only to information concerning the crimes of conviction, but also to information concerning other crimes that \u201cwere part of the same course of conduct or of a common scheme or plan,\u201d including uncharged related conduct. \nNeither \u00a73553(f) nor the Sentencing Guidelines explain what form the defendants\u2019 full disclosure must take. At least one court has held that under rare circumstances disclosure through the defendant\u2019s testimony at trial may suffice. Most often the defendant provides the information during an interview with prosecutors or by a proffer. The defendant must disclose the information to the prosecutor, however. Disclosure to the probation officer during preparation of the presentence report is not sufficient. Moreover, a defendant does not necessarily qualify for relief merely because he has proffered a statement and invited the prosecution to identify any additional information it seeks; for \u201cthe government is under no obligation to solicit information from a defendant.\u201d The defendant must provide the government with all the relevant information in his possession. And, he must do so \u201cno later than the time of the sentencing hearing.\u201d Information offered after the sentencing hearing does not qualify, although information offered following appellate remand for resentencing and prior to the resentencing hearing may qualify. On the other hand, past lies do not render a defendant ineligible for relief under the truthful disclosure criterion of the safety value, although they may undermine his credibility. \nSubstantial Assistance\nBackground\nThe substantial assistance provision, 18 U.S.C. 3553(e), passed with little fanfare in the twilight of the 99th Congress as part of the massive Anti-Drug Abuse Act of 1986, legislation which established or increased a number of mandatory minimum sentencing provisions. The section continues in its original form virtually unchanged:\n(e) Limited Authority To Impose a Sentence Below a Statutory Minimum. - Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant\u2019s substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.\nThe section passed between the date authorizing creation of the Sentencing Guidelines and the date they became effective. Rather than replicate the language of \u00a73553(e), the Guidelines contain an overlapping section which authorizes a sentencing court to depart from the minimum sentence called for by the Guidelines.\n\u201cUpon the Motion of the Government\u201d\nAs a general rule, a defendant is entitled to a sentence below an otherwise applicable statutory minimum under the provisions of Section 3553(e) only if the government and the court agree. The courts have acknowledged that due process or equal protection or other constitutional guarantees may provide a narrow exception. \u201cThus, a defendant would be entitled to relief if a prosecutor refused to file a substantial-assistance motion, say, because of the defendant\u2019s race or religion.\u201d A defendant is entitled to relief if the government\u2019s refusal constitutes a breach of its plea agreement. A defendant is also \u201centitled to relief if the prosecutor\u2019s refusal to move was not rationally related to any legitimate Government end.\u201d Some courts have suggested that a defendant is entitled to relief if the prosecution refuses to move under circumstances that \u201cshock the conscience of the court,\u201d or that demonstrate bad faith, or for reasons unrelated to substantial assistance. A majority of the judges who answered the Sentencing Commission\u2019s survey agreed that relief under \u00a73553(e) should be available even in the absence of motion from the prosecutor. \nDespite their similarities, \u00a73553(e) and U.S.S.G. \u00a75K1.1 are not the same. A motion under \u00a73553(e) authorizes a sentence beneath the mandatory minimum and a motion under U.S.S.G. \u00a75K1.1 authorizes a sentence beneath the applicable Sentencing Guideline range. Thus, a motion under \u00a75K1.1 will ordinarily not be construed as a motion under \u00a73553(e), in order to permit a court sentence below an otherwise applicable mandatory minimum sentencing requirement.\n\u201cTo Reflect a Defendant\u2019s Substantial Assistance\u201d\nAny sentence imposed below the statutory minimum by virtue of Section 3553(e) must be based on the extent of the defendant\u2019s assistance; it may not reflect considerations unrelated to such assistance. It has been suggested, however, that a court may use the Section 5K1.1 factors for that determination, that is, \u201c(1) the court\u2019s evaluation of the significance and usefulness of the defendant\u2019s assistance, taking into consideration the government\u2019s evaluation of the assistance rendered; (2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant; (3) the nature and extent of the defendant\u2019s assistance; (4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance; [and] (5) the timeliness of the defendant\u2019s assistance,\u201d U.S.S.G. \u00a75K1.1(a). \nThe substantial assistance exception makes possible convictions that might otherwise be unattainable. Yet, it may also lead to \u201cinverted sentencing,\u201d that is, a situation in which \u201cthe more serious the defendant\u2019s crimes, the lower the sentence\u2014because the greater his wrongs, the more information and assistance he had to offer to a prosecutor\u201d; while in contrast the exception is of no avail to the peripheral offender who can provide no substantial assistance. Perhaps for this reason, most of the judges who responded to the Sentencing Commission survey agreed that a sentencing court should not be limited to assistance-related factors and should be allowed to use the generally permissible sentencing factors when calculating a sentence under Section 3553(e).\n\nAuthor Contact Information\n\nCharles Doyle\nSenior Specialist in American Public Law\ncdoyle@crs.loc.gov, 7-6968", "type": "CRS Report", "typeId": "REPORTS", "active": true, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "http://www.crs.gov/Reports/R41326", "sha1": "5eb496962c010081e9cf31780522c92cfa7c83dc", "filename": "files/20150825_R41326_5eb496962c010081e9cf31780522c92cfa7c83dc.html", "images": null }, { "format": "PDF", "encoding": null, "url": "http://www.crs.gov/Reports/pdf/R41326", "sha1": "1ad9269b65cd54cd7fd1e804fecce050a0a591a0", "filename": "files/20150825_R41326_1ad9269b65cd54cd7fd1e804fecce050a0a591a0.pdf", "images": null } ], "topics": [ { "source": "IBCList", "id": 2496, "name": "Crime and Punishment" } ] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc267845/", "id": "R41326_2013Oct21", "date": "2013-10-21", "retrieved": "2013-12-03T12:16:12", "title": "Federal Mandatory Minimum Sentences: The Safety Valve and Substantial Assistance Exceptions", "summary": "This report discusses the federal law that requires a sentencing judge to impose a minimum sentence of imprisonment following conviction for any of a number of federal offenses.", "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20131021_R41326_bfd8ff39efe58816e6252e0612835ad5f14b0272.pdf" }, { "format": "HTML", "filename": "files/20131021_R41326_bfd8ff39efe58816e6252e0612835ad5f14b0272.html" } ], "topics": [ { "source": "LIV", "id": "Sentences (Criminal procedure)", "name": "Sentences (Criminal procedure)" }, { "source": "LIV", "id": "Sentencing guidelines", "name": "Sentencing guidelines" }, { "source": "LIV", "id": "Law and legislation", "name": "Law and legislation" } ] } ], "topics": [ "American Law", "National Defense" ] }