Sentencing and Prison Reform: The FIRST STEP Act

In late 2018, Congress enacted its most sweeping prison reform legislation in a generation, the First Step Act, designed to shorten sentences and improve conditions of incarceration.

While momentous, the First Step Act prison reforms applied only to the federal criminal justice system. It had a meaningful effect on defendants prosecuted for federal drug and firearms offenses, but no direct impact on the states, which house the vast majority of prison inmates.

This article presents information about the First Step Act, criticisms of this law, and prison reform efforts.

The Backdrop to Prison Reform

The First Step Act was a bipartisan congressional effort at prison reform law. Republicans and Democrats worked together to ease the budgetary burden of mass incarceration. Although the United States has less than 5% of the global population, it incarcerates nearly a quarter of the world's prison inmates.

The First Step Act sought to address racial inequities and to lessen punishments for nonviolent drug offenders. As such it was part of a broader prison reform conversation happening at the state level. California and Florida had already adopted far-reaching amendments to their own sentencing laws.

Mandatory Minimum Sentences Eased

One of the most significant changes to result from the First Step Act relates to automatic sentences. Since the mid-1980s, the thrust of criminal justice reform had been to make prison sentences tougher. Federal judges were forced to sentence defendants to a mandatory minimum number of years in prison.

At the time it was thought that rigid sentencing requirements would promote uniformity. In some cases, judges could no longer consider extenuating circumstances that might have resulted in more lenient sentences.

Critics of mandatory minimums said that judges needed that flexibility to individualize sentences. People from marginalized communities were facing tougher sentences than privileged defendants for the same crimes.

The First Step Act did not repeal mandatory sentencing laws, but it shrank the length of those minimum sentences. A defendant who previously would have been sentenced to 20 years might now face 15 years. The new law also gave judges greater discretion to ignore the mandatory minimum in some circumstances.

Congress did not make the shortened sentencing rule retroactive. Federal inmates already serving time gained no relief from the change in the law. That limited the budgetary impact of the law. Thousands of prisoners continue to live out long sentences in federal prison.

Crack Cocaine Sentences Reduced

Federal inmates who may benefit most from the new law are people prosecuted for crack cocaine offenses before 2010. This unlucky group wasn't covered by the Fair Sentencing Act of 2010. That Act reduced the enormous disparity between crack and powdered cocaine sentencing. (Crack cocaine prosecutions more often affected black defendants while powder cocaine had greater impact on white defendants.)

Like the First Step Act, the Fair Sentencing Act was not retroactive when it originally passed.

The 2018 prison reform law finally made the cocaine sentencing law retroactive, so crack cocaine offenders could petition for reductions in their prison terms.

Other Provisions of the First Step Prison Reform Act

Other noteworthy reforms of the 2018 First Step Act included:

• Modifying the way that good-time credits are computed for federal inmates
• Requiring inmates to be housed within 500 miles of their homes or families
• Increasing the use of home confinement and halfway houses
• Prohibiting the use of shackles or restraints on pregnant inmates
• Providing female inmates with free tampons and sanitary napkins
• Making it easier for elderly or terminally ill inmates to obtain compassionate release. (Many federal inmates attempted to obtain compassionate release during the COVID-19 pandemic, with mixed success.)

Criticism of the First Steps Act

Immediate criticism of the Act focused on the very small number of inmates who would be affected because sentences were only shortened for particular crimes. Also, the new formula for computing good-time credits produced disparate results that disfavored poor and minority prisoners.

The Sentencing Project reviewed the First Steps Act on its first anniversary. They reported that implementation results were mixed. Among the findings:

• If the sentencing provisions had been made retroactive, an additional 4,000 prisoners could have been removed from prison.
• Harsh mandatory minimum sentences continued and were now applied to cases involving fentanyl.

• The $75 million a year for rehabilitation, which was arguably not sufficient for the number of people who needed programs and drug treatment.

Ongoing Prison Reform Debates

The Sentencing Project has also proposed that Congress pass the Second Look Act. It would create a sentence review procedure for people serving prison sentences of longer than ten years.

Judges would determine whether the prisoner posed a danger to the safety of a person or to that of the community. They would consider the prisoner's age and the likelihood of recidivism, along with whether the prisoner had demonstrated readiness for reentry into society. In the interests of justice, the judge would then decide if a modification of the original sentence was warranted.

Prison reformers believe this kind of review process would affect a far greater number of inmates.

Many reform efforts are happening at the state level, where the vast majority of the prison population exists. Michigan, Mississippi, Rhode Island, Connecticut, and South Carolina have recently enacted efforts that reduced their prison populations by 14% to 25%, and many states are reducing minimum sentences for nonviolent drug offenses.

Do You Have Questions about Sentencing Laws? Talk to a Lawyer

Would the First Step Act impact the prison sentence a friend or a family member? Ask a criminal defense lawyer. Only an experienced defense attorney can advise you on your specific situation.