Brigham Young University Prelaw Review


Safety valve; abuse; sexual assault; sentencing; drugs; drug crimes; substance abuse; drug courier; downward departure; sentencing guidelines; psychologist; psychiatrist; non-violent drug crime; qualification; judicial discretion; cognitive function; mental health; female; non-violent.


Our current criminal justice system does not adequately consider the effects of abuse on drug crime offenders during the process of determining their sentences. Despite the fact that abuse has very real scientifically corroborated effects on a defendant’s culpability, judges sometimes misinterpret how abuse suffered by (predominantly female) defendants affects their participation in a drug crime. Furthermore, the safety valve—a provision that allows downward departure on a sentence for low-level nonviolent drug offenders who meet certain conditions—does not account for abuse at all. This paper proposes adding a qualification to the safety valve that prompts judges to consult with mental health experts in situations where abuse is present; it then gives judges additional flexibility to depart downwards if they find that abuse had significantly affected the defendant’s ability to meet the safety valve criteria.

Included in

Criminal Law Commons