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Federal Sentencing Reform - First Step Act

Today Congress passed the First Step Act, and the president is expected to sign the bill into law tomorrow. The law does not go nearly as far as we would like, it will benefit many prisoners, and has important implications for practitioners. This initial summary is intended to provide a broad overview of key provisions. The full text of the law is available here.

The First Step Act’s purported centerpiece mandates the creation of a federal prisoner risk and needs assessment system. A 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 system will be phased in over the course of approximately three years. The bill outlines various incentives that can be provided to participating prisoners, but the primary benefit is the opportunity to earn credits for early placement in prerelease custody or supervised release. Concerns about risk assessment tools aside, the law bars a long list of offenders from earning or using time credits (including those with immigration detainers). Counsel will need to be familiar with the list of ineligible offenders for purposes of negotiating and advising clients about plea agreements. (See the list of disqualifying offenses at pages 12-25 of the bill.) Also buried in this 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. In the end, this measure has the potential to transform the BOP’s mission, but the current provisions exclude far too many prisoners, many of whom are most in need of programming.

Less controversial are the 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. The shortened mandatory sentences would not apply retroactively.
  • Firearm penalty “stacking”: 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 sentences: 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.

The bill also expands the compassionate and elderly release program 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. Other prison-related provisions (1) require that prisoners be placed as close as possible to their primary residence and to the extent practicable within 500 miles; (2) require the BOP to place low risk and low needs prisoners on home confinement for the maximum authorized period; (3) prohibit the use of restraints on women during pregnancy, labor and postpartum; and (4) restrict 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.

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