New Federal Sentencing Law: First Step Act of 2018
In December 2018, the U.S. Congress passed the First Step Act, and the president is expected to sign the bill into law immediately. The criminal defense attorney community has long pressed to fix the unjustly severe federal sentencing regime. Many of the organization we belong to advocate for criminal justice reform, including those found in the First Step Act. Although this new law does not go nearly far enough, it will benefit many prisoners, and has important implications for criminal defense attorneys and their clients. We have provided this initial summary to provide a broad overview of key provisions.
The full text of the bill can be found here: S.756 – First Step Act of 2018
The First Step Act’s mandates the creation of a new federal prisoner risk and needs assessment system. The Federal Bureau of Prison’s risk assessment tool will be used to classify prisoners as minimum, low, medium, and high risk, and prisoners will be assigned recidivism reduction programming based on identified needs. The BOP will phase the new system in over the course of approximately three years. The First Step Act outlines various incentives that can be provided to participating inmates, but the primary benefit is the opportunity to earn credits for early placement in prerelease custody or supervised release.
We have reservations about the risk assessment tool. One is that the new law bars a long list of offenders from earning or using time credits (including those with immigration detainers). Federal Criminal Defense Lawyers will need to be familiar with the list of ineligible offenders for purposes of negotiating and advising clients about plea agreements. You can find a list of disqualifying offenses at pages 12-25 of the bill.
One important provision stuffed into the same section is the long overdue fix to the way in which the BOP calculates good-time credits, which will now equal the full 54 days per year mandated by the statute instead of the 47 days authorized by BOP policy.
Select Provisions from the New Federal Criminal Justice Bill
These are a few important First Step Act’s sentencing provisions:
2-strike and 3-strike mandatory minimum sentences (21 USC sec. 841(b)(1)): Reduces 2-strike mandatory minimum sentences for drug offenders with one specified prior conviction from 20 years to 15 years. The 3-strikes rule, which prescribes a life sentence for two or more specified prior convictions, would instead trigger a 25-year sentence. The prior offenses that trigger these enhancements are changed from any “felony drug offense” to a “serious drug felony or serious violent felony,” both of which are defined. These shortened mandatory sentences do not apply retroactively.
924(c) Firearm stacking penalty The new law clarifies that the enhanced mandatory minimum sentences that apply for “second or subsequent convictions” of using a firearm during a crime of violence or drug crime (18 USC sec. 924(c)) are limited to offenders who have previously been convicted and served a sentence for such an offense. The shortened mandatory sentences would not apply retroactively.
Crack cocaine sentencesThe bill authorizes retroactive application of the Fair Sentencing Act of 2010, which reduced the 100-to-1 disparity in sentencing between crack and powder cocaine. Prisoners convicted before August 3, 2010 (when the Fair Sentencing Act became law) can petition a court for a sentence reduction, which lies within the discretion of the judge.
Safety valve expansion Expands the existing safety valve (18 USC sec. 3553(f)) to include offenders with up to four criminal history points, excluding 1-point offenses, such as minor misdemeanors. Offenders with prior “3 point” felony convictions (sentences exceeding one year and one month) or prior “2 point” violent offenses (violent offenses with sentences of at least 60 days) will remain ineligible. The shortened sentences would not apply retroactively.
Compassionate and elderly release program This program is expanded to permit prisoners aged 60 years or older (instead of the current 65 years) or prisoners who are terminally ill to request compassionate release based on certain eligibility requirements.
- Requires that prisoners be placed as close as possible to their primary residence and to the extent practicable within 500 miles;
- Requires the BOP to place low risk and low needs prisoners on home confinement for the maximum authorized period;
- Prohibits the use of restraints on women during pregnancy, labor and postpartum; and
- Restricts the use of solitary confinement for juveniles. Lastly, the bill reauthorizes the Second Chance Act, a federal grant program providing employment assistance, substance abuse treatment, housing, and other services to individuals returning to the community from prison or jail.
There has been great work on the national and local levels to help bring about this legislation. The First Step Act is far from the final battle in the fight to develop a more just criminal justice system.
Cody L. Cofer, Federal Criminal Defense Attorney
Cody Cofer is a former Assistant Federal Public Defender. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. If you or a loved one is facing a federal criminal charge, or have a charge pending sentencing, contact him to discuss the case.