The “First Step Act” and the Effect on Federal Criminal Sentencing and Practice

In a surprising and encouraging move, late last year (2018) the “First Step Act” passed both houses of Congress and was signed into law by the President. The Act purports to change several provisions that will have an effect on Federal criminal cases going forward, as well as many individuals who are serving federal sentences already.

Here are some highlights of this 148 page piece of legislation; as always of course this analysis is early and could be modified over time.

Mandatory Minimum Sentences: The Act reduces many mandatory minimum sentencing schemes, and makes the criteria for them more difficult for the Court to apply.

Fair Sentencing Act of 2010 retroactive: The FSA attempted to correct the disparity in sentencing between powder and crack cocaine cases. At the time of its passage, it was not retroactive. This legislation corrects this.

Safety Valve: The “Safety Valve” provisions allow a Judge to ignore a statutory minimum sentence under some circumstances. This Act eases the criteria that allow a person to be eligible for receiving a Safety Valve sentence.

Stacking of mandatory time: “Stacking” of sentences under 18 USC 924 (possession of a firearm in connection with another felony) was commonplace under the old scheme, and people were commonly charged with more than one 924(c) count in a single indictment. The new law limits stacking to situations in which a conviction is final at the time of sentencing, so that repeated counts in an indictment can no longer result in stacking of these consecutive sentences. This provision is retroactive.

Good time: The amount of good time (time towards their sentence) that a federal inmate can receive is increased from 47 to 54 days per year.

Vocational and Rehabilitative Programs: The Act creates incentives for those serving federal sentences to participate in programs designed to assist them once they are released. The goal of this is to reduce recidivism (repeat offending) among those released from prison. There is research that shows these programs are effective in reducing repeat offenses.


In summary, I think this Act is exactly what is is called, a “First Step” toward more comprehensive criminal justice reform. I am encouraged by the content of the Act as well as the bipartisan manner in which it was passed into law.


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