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A Second Chance for Nonviolent Drug Offenders: Federal Criminal Justice Reform Bill Signed into Law by President Trump


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Something akin to a miracle occurred recently: Congress passed significant legislation with broad bipartisan support. The awkwardly-named “Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act,” or FIRST STEP Act (the “Act”), was signed by President Trump on December 21, 2018.

The new legislation is designed to improve federal prison conditions, allow for the early release of certain inmates, and eliminate some of the more severe consequences of federal mandatory minimum sentencing. It applies to the federal prison system, not the state prison system, where most of the nation’s inmates are housed.

The reasons for the broad bipartisan support that this law enjoyed included prison overcrowding, concerns about the mass incarceration of nonviolent drug offenders, and the shockingly high rate at which released prisoners re-offend (known as the recidivism rate). The following is a description of some of the primary features of the Act.

Reduction of “Mandatory Minimum” Sentences for Non-Violent Drug Felonies

Mandatory minimum sentencing for drug offenders, first introduced by the Anti-Drug Abuse Act of 1986 in response to crack cocaine epidemic, limits the sentencing discretion of trial judges once a defendant has been found guilty of a crime (typically a drug crime) for which mandatory minimum sentencing applies. This system has been widely criticized for:

  • Draconian sentencing, including life in prison in some instances, for non-violent drug crimes, regardless of mitigating circumstances;
  • The huge disparity in sentencing between those caught with crack cocaine and those caught with powder cocaine;
  • Racial disparities in sentencing, particularly to the disadvantage of African-Americans; and
  • Mass incarceration and prison overcrowding as prisons become packed with drug offenders.

The FIRST STEP Act raises the bar for imposing mandatory minimum sentences for repeat offenders. To qualify as a prior offense, the offender must have actually been sentenced to 12 or more months of incarceration instead of simply having been convicted of an offense for which 12 or more months incarceration could have been imposed. It also institutes a “lookback period” of 15 years in the past, beyond which, prior offenses will not count against the defendant.

The FIRST STEP Act reduces these mandatory minimums in some instances. It reduces the mandatory minimum sentence of third-time offenders from life imprisonment to 25 years, for example, and it reduces the mandatory minimum sentence for second-time offenders from 20 years to 15 years.

It’s not all sunshine and roses for drug offenders, however. The law also adds violent offenses to the types of offenses that will be considered prior offenses, so that drug offenders with a history of violence will not be able to easily evade mandatory minimum sentences. Significantly, most provisions of the Act are not retroactive – most people who have already been sentenced under the old law will not be able to take advantage of the Act’s provisions.

Broadening of the Mandatory Minimum “Safety Valve”

The “Safety Valve” was introduced at the federal level in 1994 to reduce the number of drug offenders subject to mandatory minimum sentencing. The Act increases the number of “criminal history points” that an offender can accumulate without triggering mandatory minimum sentencing. Criminal history points are assigned to a defendant based on previous convictions, and they increase with the length of the sentence imposed, particularly if violence was involved.

Miscellaneous Provisions

The Act contains many provisions designed to relax overly harsh prison conditions that social scientists point to as one of the main causes of recidivism.

  • Placement of prisoners near their families to allow for more convenient visitation.
  • Expansion of the Elderly Home Detention Program, which provides an alternative to prison life for elderly prisoners.
  • Relaxation of the standards for “compassionate release” (for prisoners diagnosed with terminal illnesses, for example).
  • Mandatory de-escalation training for prison guards to reduce the incidence of violent altercations.
  • The introduction of medication-assisted treatment for opioid abuse (methadone, for example).
  • Restrictions on the imposition of juvenile solitary confinement.
  • Restrictions on the use of restraints on pregnant female inmates.
  • The establishment of recidivism risk programs for prisoners, with incentives provided for successful participation that include more time spent in home confinement, halfway houses, or supervised release rather than in prison.
  • A massive increase in the type of data that the Bureau of Prisons is required to provide to the National Prisoner Statistics Program, which could help provide a rational basis for further criminal justice reform.

A Look Ahead

The First Step Act is intended the way it is named: as a first step, not an ultimate solution. Although crime has fallen in recent decades, it has come at a high price. About 2.3 million people are incarcerated in the United States – about the same number of people that live in Houston and about 22 percent of the world’s total prison population. The United States “land of the free” boasts a prison population nearly twice as large as China, the world’s second most prison-happy nation.

An appropriate “Second Step Act” should address recidivism. A convicted drug dealer, for example, unable to secure employment after being released from prison, is likely to return to selling drugs simply to make ends meet. It might be appropriate, then, to allow non-violent drug offenders an easier way to expunge their criminal records so that they can secure employment and leave their old “profession” behind.

State prisoners are at least as overcrowded as federal prisons for many of the same reasons. Hopefully, state governments will follow their federal counterparts and enact the same or perhaps even more far-reaching criminal justice reforms (some states already are). Ultimately, only time will tell.

Let Us Help You Fight Back

Although a criminal prosecution works something like a war, it is not a war that you will necessarily lose if you know how to fight back. And at E. Stewart Jones Hacker Murphy, we know how to fight it. If you have been charged with a crime, call our Albany office at (518) 730-7270 or contact us online to schedule a free initial consultation. We also maintain offices in TroySaratoga, and Schenectady, and we can even visit you in jail.

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