National Association of Assistant United States Attorneys Safeguarding Justice for All Americans Board of Directors Lawrence J Leiser Presiden (E.D.VA) Steven B, Wasserman Vice President(DC) Allison W, Bragg ie President D.AR) Adam E. Hanna Treauurer (sD. David A. Marye ‘Seeretayy DRY) Patricia Booth (SD.1X) Kevan Cleary ED.NY) Karen Escobar (€D.CA) rie Gibson (€D.PA) Lauren Jorgensen GDF) Joseph Koehler ww Jennifer Kolman D1 Mark Vincent (UT) ‘Mae Wallenstein (Ht) Clay West wD. MD Geoftey Wilson (ED.CA) Executive Director Dennis Boyd Counsel Bruce Moyer December 3, 2018 ‘The Honorable Mitch McConnell ‘The Honorable Chuck Schumer Majority Leader Minority Leader United States Senate United States Senate Washington, DC 20510 Washington, DC 20510 Re: Expansion of the Safety Valve under the FIRST STEP Act Dear Leader McConnell and Leader Schumer: I write to express our concerns regarding section 402 of the FIRST STEP Act and the way it will turn the public safety-conscious precision of the “safety valve” into a gaping hole, permitting dangerous and violent offenders to avoid statutory minimum sentences. As you know, the “safety valve” is a provision in federal sentencing law and the United States Federal Sentencing Guidelines that authorizes a sentencing court to impose a sentence below the statutory mandatory minimum for certain drug trafficking offenders with little or no criminal history. The safety valve provision in federal law, 18 U.SC. § 3553(f), authorizes a sentencing court to impose a sentence below the statutory ‘mandatory minimum for certain drug trafficking offenders, but only if an offender (1) has only 1 criminal history point, (2) did not use violence or threats of violence, or possess any dangerous weapon; (3) did not commit an offense resulting in death or serious bodily injury; (4) was not an organizer, leader, manager, or supervisor of others in the offense; and (5) has provided law enforcement with truthful information related to his or her crimes. The FIRST STEP Act will dramatically expand the existing safety valve by permitting defendants with far more extensive and significant criminal histories to become eligible for avoidance of a statutory mandatory minimum sentence, Section 402 of the FIRST STEP Act expands the existing safety valve to include offenders with not ‘more than four criminal history points, but does not count offenses that received only 1 criminal history. This means that even prior felony drug convictions of offenders who received prison sentences of less than 60 days would not be counted for purposes of calculating criminal history scores safety valve eligibility. While offenders with prior “3 point” felony convictions (sentences exceeding one year and one month) ot prior “2 point” violent offenses (violent offenses with sentences of at least 60 days) will not be 5868 Mapledale Plaza @ Suite 104 @ Woodbridge VA 22193 Tel: 800-455-5661 @ Fax: 800-528-3492 @ www.naausa.orgcligible for the safety valve, violent offenders who received prison sentences of less than 60 days would still qualify for the safety valve. State criminal justice systems are replete with examples of convicted violent offenders and recidivist drug dealers who rarely receive prison sentences exceeding one year and one month, or even 60 days, and therefore, would qualify for safety valve treatment under the FIRST STEP Act, including those who were armed with firearms while doing so. For example, under the FIRST STEP Act's definition of a “serious violent felony,” a violent offender like former Stanford University student Brock Tumer, who was convicted of rape of a fellow student and sentenced to only three months in prison, would not qualify as a serious violent felon and thus become eligible for safety valve treatment. As discussed further below, the discretion afforded to judges under section 402(g) of the First Step Act will allow judges to ignore most offenders criminal histories, such as that of Brock Turner that would otherwise make them ineligible for safety valve treatment. We must ask ourselves whether we want to provide judges like the one who sentenced Brock Turner such broad discretion to permit dangerous and violent offenders to avoid mandatory minimum sentences necessary to protect the public. ‘As mentioned above, section 402(g) permits safety valve eligibility for offenders, notwithstanding their significant criminal history, whenever there is a discretionary judicial finding that the prior convictions substantially overstate the offender’s criminal history and danger of recidivism. This provision will allow judges virtually unfettered discretion to disregard a defendant's criminal record and grant offenders like Brock Turner the benefit of safety valve treatment. Furthermore, this provision will result in gross sentencing disparities between similarly situated defendants, including defendants within the same courthouse, based solely on which judge is assigned to their case. Accordingly, the single most significant event once a defendant is charged with a crime, no matter how serious the offense or the extent of his or her criminal history, will often be the assignment of the judge to preside over the case. In fact, since the U.S. Sentencing Guidelines became voluntary in 2005, sentencing similarly situated defendants have only increased. Such disparities in sentencing that have no other basis than the individual judge’s sentencing philosophy will only increase perceptions of unfairness in the criminal justice system, including perceptions of racial disparities in sentencing Please contact me if the National Association of Assistant U be of further assistance. d States Attorneys may Sincerely yours, raaaee Lawrence J. Leiser President