When Is a Mandatory Minimum Sentence Not Mandatory Under the First Step Act?

When Is a Mandatory Minimum Sentence Not Mandatory Under the First Step Act?

Legal Sidebari

When Is a Mandatory Minimum Sentence Not
Mandatory Under the First Step Act?
February 2, 2023
For some federal crimes, Congress establishes maximum penalties and mandatory minimum penalties that
form the outer bounds of permissible federal criminal sentences. Between these statutory limits are the
U.S. Sentencing Guidelines—a series of sentencing ranges based on points assigned to the offense
committed and to the defendant’s criminal history. Together, federal statutes and the Guidelines provide
the basic structure for federal sentencing decisions.
Despite their name, mandatory minimums are not always mandatory. For instance, the First Step Act,
passed by Congress in 2018, authorizes federal judges to impose a sentence below a mandatory minimum
for certain drug offenses. The act provides that a defendant is eligible for this “safety valve,” or relief
from the mandatory minimum, depending in relevant part on the defendant’s criminal history. The U.S.
Courts of Appeals are divided on when defendants’ criminal history renders them ineligible for safety-
valve relief. In practical terms, this disagreement results in sentencing disparities across the country.
Defendants in jurisdictions that interpret eligibility for safety-valve relief strictly may receive longer
sentences than defendants with similar convictions and similar criminal records in jurisdictions adopting a
more relaxed interpretation of the act.
Mandatory Minimum Penalties Generally
Mandatory minimum sentences require judges to impose a sentence of a term of imprisonment of at least
the time specified in a statute, a requirement generally triggered by the offense of conviction and/or the
defendant’s recidivism. Mandatory minimums have existed throughout American history, with examples
stretching as far back as at least 1790. The relationship between federal mandatory minimum sentences
and judges’ corresponding discretion to impose appropriate sentences in particular cases has fluctuated
over time. In the modern era, the introduction of the Sentencing Guidelines in 1984 “tightly confined”
judges’ sentencing discretion. Congress added a host of mandatory minimum penalties shortly thereafter,
including mandatory minimums for certain drug and child pornography offenses.
Proponents cite various arguments to justify mandatory minimums. According to a 1991 U.S. Sentencing
Commission report, mandatory minimums ensure that a sentence reflects the seriousness of the offense,
averts the prospect of lenient sentences, and promotes certainty and predictability in sentencing.
Mandatory minimum sentences, the Commission observes, further several philosophical purposes of
Congressional Research Service
https://crsreports.congress.gov
LSB10910
CRS Legal Sidebar
Prepared for Members and
Committees of Congress

Congressional Research Service
2
punishment: retribution by ensuring that defendants will receive their just deserts; deterrence by
disincentivizing crime; and incapacitation by removing defendants from the community. In addition,
according to the Commission, mandatory minimum sentences offer assurance to victims that the
perpetrators will receive at least some known time for their crimes. The certainty and severity of
mandatory minimums also can help induce cooperation and plea agreements, the Commission report
added.
The Sentencing Commission and others have warned that mandatory minimums are not without costs.
The Commission found that prosecutors selectively bring charges carrying mandatory minimum penalties.
As a result, in the words of the Commission, mandatory minimums “transfer sentencing power from the
court to the prosecution,” resulting in sentencing disparities. These disparities may diminish the
retributive, deterrent, incapacitative, and communicative goals of sentencing. Some in the judicial
community have also expressed concern that mandatory minimums necessarily withdraw sentencing
discretion from judges and frustrate their ability to impose individualized sentences. Scholars and others
have pointed out that the threat of mandatory minimums may coerce defendants into pleading guilty to
avoid a mandatory minimum sentence, and thus into forgoing their constitutional right to a jury trial.
The Safety Valve
Following the Sentencing Commission’s 1991 report, Congress created the safety valve for certain drug
offenses carrying mandatory minimum penalties after becoming concerned that the mandatory minimums
could result in equally severe penalties for both more and less culpable offenders. The Commission
“worked directly with Congress to enact new legislation that would address the impact of mandatory
minimum penalties on low-level drug-trafficking offenders.” These efforts culminated in the first safety
valve, which was introduced as part of the Violent Crime Control and Law Enforcement Act of 1994.
Under this statute, to be eligible for the safety valve, a federal judge could impose a sentence below a
drug-related mandatory minimum if the federal defendant satisfied five criteria, including not having
“more than one criminal history point, as determined under the Sentencing Guidelines.” (According to the
Guidelines, a defendant’s criminal history is reflected in points, and the computation of these points
depends on the nature and number of the prior offenses.) The Commission adopted a corresponding
Sentencing Guideline provision, allowing for a two-level reduction in the Guidelines offense level based
on the same 1994 criteria.
In 2011, the Commission reported to Congress that the safety valve was underinclusive. The Commission
therefore urged Congress to expand the safety valve to encompass “certain non-violent [drug] offenders
who receive two, or perhaps three, criminal history points under the [G]uidelines” and “low-level, non-
violent offenders convicted of other offenses carrying mandatory minimum penalties.”
In 2018, Congress enacted the First Step Act in response to concerns about the increasing size of the
federal prison population and the economic and social consequences of this growth. From 1980 to 2018,
the federal inmate population increased more than 600% from approximately 25,000 to 184,000. The
House Judiciary Committee took note of the “burgeoning costs” of the federal prison system, which it
viewed as representing an increased burden on taxpayers and drawing funding away from public safety
measures. Some supporters of the First Step Act viewed mandatory minimums as a contributing factor to
the rise in the federal prison population and its associated costs.
The First Step Act addressed mandatory minimums in multiple ways. In addition to reducing the
mandatory minimum penalties for certain drug-trafficking offenses, the act expanded eligibility for safety-
valve relief to defendants with more significant criminal histories. Whereas federal defendants with one
or zero criminal history points under the Sentencing Guidelines could receive relief under the prior law,
the act made drug offenders with minor criminal records eligible for the safety valve provision. As one
court framed it, “The low threshold of more than one criminal-history point resulted in many drug

Congressional Research Service
3
offenders receiving mandatory minimum sentences in instances that some in Congress believed were
unnecessary and harsh. Congress recognized the problem and sought to give district courts more
flexibility.”
Circuit Split on the Scope of the Amended Safety Valve
The First Step Act now permits a federal defendant convicted of certain drug offenses to receive a
sentence below a mandatory minimum as long as, in relevant part:
(1) the defendant does not have—
(A) more than four criminal history points, excluding any criminal history points
resulting from a one-point offense, as determined under the Sentencing
Guidelines;
(B) a prior three-point offense; and
(C) a prior two-point violent offense.
The federal appeals courts are split on when federal defendants’ criminal history disqualifies them from
the safety valve. Are defendants ineligible when their criminal history meets the criteria of all three
subsections ((A), (B), and (C)), or when their criminal history satisfies only one subsection ((A), (B), or
(C))?
The U.S. Courts of Appeals for the Ninth and Eleventh Circuits have held that only a defendant who
satisfies all three criteria is ineligible for the safety valve. For example, in these circuits, judges may
decide not to impose a mandatory minimum sentence on a defendant who has a prior two-point violent
offense, but who does not also have more than four criminal history points and a prior three-point offense.
This joint or cumulative reading of the three subsections is based on several interpretive points. Perhaps
most significantly, the text of the First Step Act links the criminal history criteria with the conjunction
“and.” The Eleventh Circuit explained that “when ‘and’ is used to connect a list of requirements, the word
ordinarily has a ‘conjunctive’ sense, meaning that all the requirements must be met.” This is true, the
court added, when the list follows a negative, such as “the defendant does not have.” Moreover, these
circuits referenced related language in the act creating a conjunctive list and the Senate’s legislative
drafting manual, which instructs drafters to use “and” in the conjunctive sense.
In contrast, the Fifth, Sixth, Seventh, and Eighth Circuits have held that a defendant who satisfies any one
of the three subsections is disqualified from safety-valve relief. For example, under this reading, a
defendant with a single prior two-point violent offense is disqualified from such relief irrespective of
whether the other subsections are satisfied. The courts adopting this reading have employed several
interpretive tools to arrive at this disjunctive interpretation. To begin with, according to these courts, the
overall structure of the list suggests that the prefatory clause to the criteria—“does not have”—is
distributive to each subsequent subsection. As the Fifth Circuit explained, “this structure, utilizing a
negative preceding an em-dash followed by a conjunctive list, makes it likely that the phrase ‘does not
have’ independently applies to each item in the list (does not have (A), does not have (B), and does not
have (C)).” In other words, as the Sixth Circuit similarly asserted, “‘and’ serves as a shorthand for
repeating (or ‘distributing’) the prefatory clause before each of the subsections that follows.” In addition,
these circuits observed that a conjunctive reading would render the first subsection—not having more
than four criminal history points—redundant because a defendant who satisfies the second and third
subsections—having five combined criminal history points—would automatically have four criminal
history points. These courts also declined to apply the rule of lenity—generally under which ties over
ambiguous language in penal statutes are read in favor of the defendant—because the language is not
sufficiently ambiguous or unclear to warrant application of this rule.

Congressional Research Service
4
Congressional Considerations
Due to the current judicial divide over the scope of the First Step Act’s safety valve, whether a defendant
may receive relief from a mandatory minimum sentence under the act may depend upon the happenstance
of geography: a defendant may be disqualified in one circuit when that same defendant might be eligible
for relief in a different circuit. Given that sentencing disparities may appear at odds with the stated
statutory policy of promoting consistency and uniformity in federal sentencing outcomes, Congress may
wish to consider amending the safety valve to clarify whether the criminal history criteria are disjunctive
or conjunctive.
In addition, the Sentencing Commission is exploring revisions to the Sentencing Guideline provision that
is analogous to the act’s safety valve: the Commission identified two options under consideration. One
option would not make any change to the Guidelines and thus would permit courts to interpret the
Guideline disjunctively or conjunctively. A second option would adopt the disjunctive approach.
Regardless of which option the Commission approves, Congress always has the opportunity to review and
revise any amendments to the Guidelines.

Author Information

Dave S. Sidhu

Legislative Attorney

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.

LSB10910 · VERSION 1 · NEW