The First Step Act Explained

The First Step Act of December 2018

The First Step was signed in December 2018, enacting several changes in U.S. federal criminal law aimed at reforming federal prisons and sentencing laws in order to reduce recidivism, decreasing the federal inmate population, and maintaining public safety.  The most often cited changes to the law are as follows:

Section 401 amends the Controlled Substance Act (21 U.S.C. § 801 et seq.) to constrain the application of sentencing enhancements for defendants with prior drug felony convictions by redefining “serious drug felony” and “serious violent felony,” to reduce the mandatory minimum sentence for a second violation from 20 years to 15 years, and to reduce the mandatory minimum sentence for a third violation from life to 25 years. It makes similar revisions to the Controlled Substance Import and Export Act at 21 U.S.C. § 960(b).

Section 403 eliminates the “stacking” provision of 18 U.S.C. § 924(c).   Prior to this legislation, 18 U.S.C. § 924(c)—which stipulated that an enhanced mandatory minimum sentence could be added when a gun was used in the commission of a “second or subsequent” conviction—was interpreted to permit the imposition of enhanced mandatory minimum sentences where a gun was used in a concurrently charged offense. The First Step Act clarified that gun enhancements can only be added where the defendant was previously (e.g. non-concurrently) convicted of a gun violation, so as to restrict sentencing enhancements to “true” repeat offenders.

Section 404 applies the Fair Sentencing Act of 2010—which, among other things, reduced the discrepancy between sentences for crack cocaine and powder cocaine convictions—retroactively. Under the First Step Act, prisoners who committed offenses “covered” by the Fair Sentencing Act are permitted to petition a court directly to reconsider their sentence (after certain administrative steps are satisfied).  Prior to this law, the Bureau of Prisons acted as the “gatekeeper” of prisoner petitions, and prisoners were not able to make motions to federal courts directly for back-end sentencing review.

In 2020, the Third Circuit resolved a contested eligibility issue, holding that a defendant’s eligibility for a sentence reduction under Section 404 rests on the statute of conviction rather than a defendant’s specific conduct.  United States v. Jackson, 964 F.3d 197.

Motion for Compassionate Release

On April 3, 2020, Attorney General William Barr issued a memo pursuant to § 12003(b)(2) of the CARES Act directing the BOP to review the sentences of all prisoners with COVID-19 risk factors and prioritize their transfer to home confinement, starting with the most at-risk facilities.  Given the expanded eligibility for transfer to home confinement, many federal prisoners are trying to utilize the First Step Act’s amended compassionate release provisions at 18 U.S.C. § 3582(c)(1)(A) to get out of prison.  These provisions permit a federal judge to modify an inmate’s sentence by motion of the BOP or by motion of the inmate after the inmate exhausts administrative requirements if “extraordinary and compelling reasons” warrant reduction or if the inmate meets certain age and sentence criteria, and so long as such a reduction is consistent with the U.S. Sentencing Guidelines.  Some inmates argue that risk of contracting COVID-19 in prison is an “extraordinary and compelling reason” justifying sentence modification pursuant to 18 U.S.C. § 3582(c)(1)(A)(i).  

In United States v. McCarthy, Judge Hall of the United States District Court of Connecticut agreed with an inmate, finding that a for a 65-year-old prisoner suffering from COPD, asthma, and other lung-related ailments, the risk of infection from COVID-19 in prison was an “extraordinary and compelling reason” to justify his release from BOP custody, subject to post-release supervision conditions.  However, not all courts have held that people with conditions “such as hypertension, heart disease, lung disease, or diabetes, which might make them more likely to suffer from serious complications if they were to contract COVID-19 meet any of the ‘extraordinary and compelling reasons’ specified in the U.S. Sentencing Guidelines.” 

As the world moves past the pandemic with the rise of a vaccinated population, the BOP and courts are reluctant to accept this as the sole, or most important, reason for release.  There are other factors however that may warrant release.  Contact Laguzzi Law, P.C. if you feel that you may be able to benefit from the changes in the First Step Act.