First Step Act Resentencing for Retroactive Provisions

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Quick Look at First Step Act of 2018 Resentencing Provisions Retroactivity

A great deal of attention has been paid to America’s federal sentencing guidelines over the past decade, particularly regarding sentencing laws for drug offenses that involved the sale, possession or distribution of crack cocaine. 

The reason for the intense public interest regarding federal sentencing guidelines for crack is simple: There was a longstanding 100-to-1 disparity in the prison sentences that were doled out to those dealing in crack versus those dealing in cocaine. Since powder cocaine and its freebase variant are roughly pharmacologically equivalent, this disparity not only defied reason, but its disparate impact on the black community was so stark that it seemed to many that the law’s only purpose was to directly target African American men for long terms of incarceration.

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Much ado about little

The problem with all of the hoopla surrounding this notorious sentencing disparity was that it just didn’t matter all that much in the big picture of U.S. mass incarceration. The sentencing disparity of 100 to 1 proved to be irresistible to activists, who could point to this shocking difference in treatment for a drug crime that was a virtual proxy of race. But it turns out that the number of people actually doing long terms of incarceration specifically for the distribution of crack is very small. 

By the Congressional Budget Office’s own estimates, the Fair Sentencing Act itself only reduced the number of person-years of incarceration by a relatively tiny 1,550 years in a system that has more than 2.3 million people currently locked up, with 222,000 of those in the federal system alone. 

The First Step Act was touted as way to further extend reductions in the nonviolent offender population by retroactively applying the guidelines established by the Fair Sentencing Act to prisoners who were sentenced before the latter act’s passage in 2010. However, it turns out that the First Step Act also had only a relatively small effect. 

Of the more than 222,000 federal prisoners, only 1,046 had their sentences reduced as a result of the First Step Act. And even for the prisoners that qualified for a sentence reduction, the average length that was cut off their remaining sentences was just 30 percent of the total, equivalent to a smaller reduction than many state prisoners receive for good behavior.

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Mass incarceration is here to stay

Politicians toot their horns about the great achievements that both the Fair Sentencing Act and the First Step Act represent. At the same time, donation-seeking activists pat themselves on the back and point to the elimination of crack-versus-powder-cocaine disparities as some sort of great victory in the fight against mass incarceration. 

But the truth is that, combined, these two pieces of legislation have resulted in less than a 1 percent reduction in the federal prison population alone, not even putting a perceptible dent in the total number of people currently locked up in the world’s most-carceral nation.

While the total number of U.S. prisoners has begun to fall slightly in recent years, this is likely to have far more to do with states simply not having the money to maintain incarceration rates that are among the highest in the world than it has with actual prison reform. 

All this means that, especially when it comes to the often-draconian sentencing of the federal courts, you need to avoid ever getting to a sentencing hearing in the first place. 

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A good federal criminal lawyer can help minimize your sentence

Hiring a good federal criminal lawyer can help protect you from the infamously harsh sentences handed down in federal courts. The sooner you get a skilled and experienced legal team working on your behalf, the more likely it is that we will be able to minimize any sentence you receive or, in some rare cases, even possibly keep you out of prison altogether. 

Federal cases are extremely serious. Once sentenced, almost all federal prisoners will be required to serve out at least 85 percent of their term of incarceration. Often the sentence handed down in federal court is harsher, and the Federal Bureau of Prisons cannot release prisoners onto parole.