4. Gives judges more discretion but still has limits on when that discretion can be used
Another way this bill tries to ease the impact of mandatory minimum sentences is by expanding what is referred to as the “safety valve” available to judges to allow them to avoid handing out mandatory minimum sentences in appropriate cases.
As noted by Vox, the bill would ease a “three strikes” rule so that people with prior convictions for things such as drug offenses would not necessarily be sentenced to life in prison.
Under current law, the “safety valve” can only be used on nonviolent drug offenders with no criminal history. Under the FIRST STEP Act, the valve could spare people with limited criminal histories, according to The Marshall Project.
In his op-ed, Cotton argued that increased judicial discretion is not necessarily a “conservative principal.” He argued that expanding the safety valve would require Americans to put their faith in liberal judges who are “issuing nationwide injunctions against the Trump administration for merely enforcing our immigration laws.”
“Remember, about three-fifths of active district-court judges were appointed by [Bill] Clinton or [Barack] Obama,” Cotton maintains. “This bill relies on their discretion to keep the American people safe.”
Lee contends in his op-ed that Cotton’s argument “distorts the FIRST STEP Act” and noted that the bill still includes “important limits on trial judges’ use of the safety valve.”
“Among other limits, offenders are not eligible for the safety valve if they used or threatened violence or possessed a firearm or other dangerous weapon, or if their offense resulted in serious bodily injury or death,” Lee explains. “They must also cooperate with law enforcement to go after higher-level offenders.”