The “First Step Act” One Year Later: How Has It Changed Federal Sentencing?
Expanding the statutory safety valve
The First Step Act expanded the eligibility criteria for the statutory safety valve, thereby allowing a greater number of drug defendants to receive relief from a mandatory minimum penalty or, where no mandatory minimum applies, a reduction in sentence. Specifically, the First Step Act amended the safety valve provision to extend eligibility to defendants who have up to four criminal history points, “excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines.”
Interestingly, the First Step Act did not make any changes to the Sentencing Guidelines Manual. Thus, as a matter of proper guideline application, a defendant is eligible for a 2-level reduction only if the defendant meets the old statutory safety valve criteria still listed at USSG §5C1.2. If a defendant meets the expanded statutory safety valve criteria, and a court chooses to reduce the sentence below the guideline range, that sentence is technically considered a variance under the guidelines.
What was the impact? Drug trafficking defendants were more likely to receive statutory safety valve relief. Specifically, in the year prior to the First Step Act, 36% of 10,176 defendants facing a statutory minimum sentence received safety valve relief. In contrast, in the year following enactment of the First Step Act, 43% of 13,138 defendants facing a statutory minimum sentence received safety-valve relief.
Limiting section 924(c) “stacking”
The First Step Act limits “stacking” of the 25-year penalty imposed under 18 U.S.C. § 924(c) for multiple weapon offenses. Section 924(c) prohibits using or carrying a firearm during and in relation to, or possessing a firearm in furtherance of, a “crime of violence” or “drug trafficking crime.” The statute prescribes a mandatory minimum consecutive penalty of at least five years of imprisonment, with increasingly longer penalties based on how the firearm was used (seven years if the firearm was brandished and ten years if the firearm was discharged) and the type of firearm involved in the crime (ten years if the firearm was a short-barreled rifle, a short-barreled shotgun, or a semiautomatic assault weapon and 30 years if the weapon was a machinegun, a destructive device or was equipped with a silencer or muffler).
What was the impact? The 25-year penalty for a “second or subsequent offense” applied less frequently. Specifically, in the year prior to the First Step Act, there were 408 cases where multiple counts of 924(c) were charged. In contrast, in the year following enactment of the First Step Act, there were 281 cases where multiple counts of 924(c) were charged, a 31% decrease.
Retroactive application of the Fair Sentencing Act of 2010
The First Step Act applies the Fair Sentencing Act of 2010 retroactively, authorizing defendants sentenced prior to enactment of the Fair Sentencing Act to seek sentence reductions. The Fair Sentencing Act reduced the disparity between sentences for crack and powder cocaine from a 100-to-1 to an 18-to-1 crack-to-powder ratio for defendants sentenced on or after its effective date.
What was the impact? Defendants had their sentence reduced by greater amounts. Specifically, in the year following enactment of the First Step Act, 2,387 defendants had their sentenced reduced on average by nearly six years, from an average of 258 months to an average of 187 months, a 27% decrease.
Reducing drug recidivist penalties
The First Step Act changed the scope and severity of enhancements for repeat drug offenders. Under federal drug statutes, when certain quantity thresholds are met, a five-year mandatory minimum penalty and a maximum term of 40 years applies, while larger amounts increase the mandatory minimum penalty to ten years, with a maximum term of life imprisonment. These mandatory minimum penalties may be further enhanced if a drug defendant has qualifying prior convictions, and prosecutors file an information under 21 U.S.C. § 851 specifying the previous convictions to be relied upon. The First Step Act narrowed the type of prior drug offenses that trigger mandatory enhanced penalties, and also reduced the length of some of the enhanced penalties.
What was the impact? Drug trafficking defendants were less likely to have an “851” information filed against them. Specifically, in the year prior to the First Step Act, there were 1,001 defendants against whom an “851” enhancement was applied. In contrast, in the year following enactment of the First Step Act, there were 849 defendants against whom the enhancement was applied, a 15% percent decrease.
The First Step Act authorized a defendant, rather than solely the Bureau of Prisons, to file a motion seeking compassionate release.
What was the impact? More defendants were granted compassionate release. Specifically, in the year prior to the First Step Act, 24 compassionate release motions were granted. In contrast, in the year following enactment of the First Step Act, 145 compassionate release motions were granted, a five-fold increase.
The final analysis
The criminal justice reforms enacted under the First Step Act have undoubtedly benefited federal criminal defendants, if not in a sweeping fashion, at least incrementally. It has also provided a springboard for further criminal justice reform legislation.
Federal criminal defendants can best ensure that they receive the benefits of the First Step Act, and any future criminal justice reforms, by choosing a criminal defense attorney who is informed and knowledgeable about the current state of federal criminal law. The attorney must be prepared and able to argue for a mitigated sentence against experienced federal prosecutors who have the unlimited resources of the federal government at their disposal to secure a lengthy sentence.