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Changes in Federal Sentencing Under the First Step Act

Posted by Alan Eisner | Apr 08, 2019

Changes in Federal Sentencing Under the First Step Act
The First Step Act has introduced significant changes to many areas of federal criminal law, such as sentencing reform.

Recently, as a part of the federal government's larger focus on criminal justice reform and to end mass incarceration, Congress passed the First Step Act, which introduced significant changes to a number of areas of federal criminal law.

For many years, Congress had attempted to pass criminal justice reform legislation, such as the Sentencing Reform and Corrections Act (SRCA), but it failed to pass in 2016 despite overwhelming bipartisan support.

However, that finally changed in December 2018 when the Senate finally passed, and President Trump signed, the First Step Act. It includes some key parts of the SRCA, which makes it the first major reduction to federal drug sentences.

One of the most important areas which has been changed is the application of sentencing guidelines to certain federal crimes.

The First Step Act is important as it includes provisions for sentencing reform, which will reduce the amount of people in prison and is a starting point for legislation for criminal justice reform. In recent decades, sentencing laws played a main role the significant rise of mass incarceration.

The federal prison population exploded since 1980 and federal prison spending increased substantially.

This growth in prison population disproportionally affected African Americans, Native Americans, Latinos and low-income communities. Federal mandatory minimum sentences were the main reason for the surge in unnecessary harsh prison sentences. Many federal prisoners serving life or long-term sentences were convicted of non-violent crimes.

Extensive research shows long prison sentences are often ineffective. One study even found that harsh sentences have little impact on reducing crime. In fact, there were some cases that showed a longer prison sentence actually increase the likelihood of individuals returning to criminal activity.

Our federal criminal defense lawyers review the major changes below.

Changes in Drug-Related Sentencing

One of the most significant changes in sentencing applies to second and subsequent convictions for federal drug-related offenses. Under prior law, a defendant convicted of a third drug offense under 21 U.S.C. §§ 841/851 was exposed to a mandatory life sentence.

The First Step Act reduces this draconian sentencing provision to a 25-year mandatory minimum. Obviously, this is still a very severe sentence on a third offense, but nowhere near as severe as a life sentence. 

Also of significance is that the definition of drug offense that triggers the mandatory minimum has been narrowed. Previously, the third “drug-related” offense could potentially be a relatively minor State-level drug crime.

Under the First Step Act, qualifying prior drug crimes must be “felony drug offenses,” or “serious violent felonies.” 

As with most newly enacted laws affecting sentencing, we would expect litigation to be forthcoming in the coming months and years directed at clarifying exactly which State and federal prior convictions fall into these new categories.

Similar to the reform discussed above, the previously applicable 20-year mandatory minimum for a second drug offense under 21 U.S.C. § 841/851 has been reduced by the First Step Act to a 15-year mandatory minimum.

As with the first reform discussed, the category of qualifying prior offenses has also been narrowed to cover only “felony drug offenses,” and “serious violent felonies.” It is worth noting, however, that both these reforms to drug crime sentencing apply prospectively only.  These are not retroactive re-sentencing provisions.

Elimination of “Stacking” Allegations

One very impactful reform under the First Step Act is the elimination of so-called § 924 stacking. In federal sentencing, 924 stacking refers to the use of multiple 18 U.S.C. § 924(c) allegations, a very serious firearm-related offense, in the same case.

Under prior law, multiple § 924 convictions in the same case, even a first offense, could trigger a 25-year mandatory minimum prison sentence. The First Step Act prevents such “stacking,” ensuring that the mandatory minimum is only triggered by § 924 convictions in a second or subsequent case.

First offenders are no longer exposed to a 25-year mandatory minimum sentence.  As with the previously discussed drug crime reforms, the § 924 stacking reform is not retroactive to those with prior convictions. 

This change in the law will therefore unfortunately not provide relief to those currently serving 25-year mandatory minimum prison sentences based on a first offense conviction involving multiple § 924(c) counts.

Resentencing in Crack Cases

One reform which is retroactive in the First Step Act is that the previously enacted reforms to crack cocaine guidelines calculations, enacted in 2010, can now be raised in a resentencing position by defendants who were sentenced in crack cases before 2010. 

This should provide a major avenue of relief to those whose guideline sentences were draconian compared to defendants possessing or selling a similar amount of powder cocaine. 

Readers may be familiar with the long-standing controversy over the disparate treatment of crack and powder cocaine offenders, which some commentators alleged was based on racial animus or, at the very least, had a disproportionate effect on defendants of color. 

The First Step Act expands the relief first enacted in 2010 by allowing retroactive application, opening an avenue of relief for those still serving long crack cocaine-related sentences from before 2010.

Elder and Compassionate Release

Finally, the First Step Act significantly expands the opportunities for elder and compassionate release.

These provisions have long existed in federal law, but Congress determined that the guidelines should be expanded to provide more opportunities for early release for elderly and disabled inmates and those suffering from terminal or very serious illnesses. 

Whether or not a particular inmate qualifies for this release is a fact-based determination that depends on the specific facts and circumstances of that inmate's situation, including:

  • behavior while in custody,
  • the total length of the sentence,
  • the nature and trajectory of the individual's illness, etc.

In general, however, non-violent offenders over 60 years old who have completed at least two-thirds of their federal prison sentence are eligible to petition for early release. 

Contact Our Federal Criminal Lawyers for Help

The FIRST STEP Act is a critical win to reduce mass incarceration. It represents the largest step the federal government has taken in order to reduce the number of people in federal custody. More people are under the custody of the Federal Bureau of Prisons than any single state system.

The First Step Act is a major component of the federal government's push toward criminal justice reform. 

It offers significant prospective relief to federal criminal defendants, and some opportunities for retroactive relief for those already serving federal prison sentences. 

If you or a member of your family is facing federal criminal charges or is already serving time in federal prison, contact our federal criminal defense attorneys for a consultation about the application of the First Step Act to your, or your loved one's case.

Contact us at 877-781-1570.

Eisner Gorin LLP 1875 Century Park E #705 Los Angeles, CA 90067 


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About the Author

Alan Eisner

Alan Eisner  Van Nuys, California (818) 781-1570 (818) 788-5033 Email Me  Alan Eisner has practiced criminal law for over 28 years in Los Angeles County . Mr Eisner is a Certified Specialist in Criminal Law. (The California State Bar's Board of Legal Specialization has designated Mr. Eisner as a...

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