Is the First Step Act Moving Us Forward?

First Step—which stands for “Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person”[3]— is intended as a first step toward correcting a draconian sentencing regime that has imprisoned thousands of people, a disproportionate number of them people of color, for extensive periods of time. This strategy has not proven to prevent recidivism or to be a deterrent to others and, indeed, has shown the opposite: removing people for long periods of time from their homes, families and communities makes it increasingly difficult for them to reintegrate and become productive members of society when they are released. In the meantime, lengthy prison terms also mean that children, elderly, and other dependents suffer from the protracted absence of a parent or other family member, causing a snowball effect that can impact multiple generations.

Among other reforms, the First Step Act modifies mandatory minimum sentences for some drug offenses, and encourages people in prison to participate in programs aimed at reducing recidivism.[4] Some of these reforms will take time to implement: for example, the law calls for the development of a new risk assessment tool to complement an existing security assessment tool used by the Bureau of Prisons to help predict inmate misconduct.[5] The FSA Risk and Needs Assessment System (RNAS) was recently released for public comment. If it works as intended, the RNAS tool should be helpful in guiding inmates toward appropriate educational, rehabilitative and vocational training. Successful completion of such programs will allow participants to earn credits toward earlier release to a halfway house or home confinement.[6]

Other reforms have had a more immediate effect. For example, the new law increased the cap on maximum allowable “good time credits” from 47 days per year to 54 days—which means, for example, that a person who earned 47 days of good time credit per year for 10 years was immediately credited with 70 additional days. This “good time fix” has led to the release of 3,100 people from federal prisons across the country.[7] (Note: nearly 900 of those released from federal prison were transferred to the custody of other law enforcement agencies because of detainers filed by Immigration and Customs Enforcement and local authorities.)[8]

In addition, 250 elderly or terminally ill inmates have been moved to home confinement or compassionate-release programs since the law went into effect.[9]

The legislation also permits retroactive application of the Fair Sentencing Act of 2010, which reduced the sentencing disparity between crack and powder cocaine offenses that disproportionately penalized African Americans. Until now, the Fair Sentencing Act— which reduced the disparity in the amount of crack cocaine versus powder cocaine needed to trigger certain federal criminal penalties from a weight ratio of 100:1 to 18:1, and eliminated the five year mandatory minimum sentence for simple possession of crack cocaine— only applied to people sentenced after that law was enacted. Under Section 404 of the First Step Act, any defendant sentenced before the effective date of the Fair Sentencing Act (August 3, 2010) and who did not receive the benefits of the change in sentencing provided by that law is now eligible for resentencing. A motion for reduction in sentence under this provision may be brought by the defendant, the Director of the Bureau of Prisons, or an attorney for the government.[10]

The United States Sentencing Commission recently released data on motions for a reduced sentence under Section 404 of the First Step Act granted through July 31, 2019.[11] The statistics show the following:

Geographic distribution: of the 1,674 motions granted, the largest number were granted in South Carolina (112) and Middle Florida (110), with Western Virginia (89), Southern Florida (86), and Eastern Virginia (80) close behind. The next largest groups were in Eastern North Carolina (70), Central Illinois (66), Eastern Louisiana (50), Northern Illinois (47), Eastern Tennessee (44), and Northern Florida (40). New York saw 35 motions granted, distributed among Northern New York (11), Southern (11), Western (9) and Eastern (4). So far, in the first seven months since the law was enacted, motions for reduced sentences under this provision were granted in 43 states.[12]

Demographics: of the cases for which demographic information was available, motions for reduced sentence under Section 404 were granted in 68 cases (4.1%) where the defendant was white, 1,513 cases (90.9%) where the defendant was black, 72 cases (4.3%) where the defendant was Hispanic, and 12 (0.7%) classified as “other.” The defendant was a U.S. citizen in 1,622 (97.7%) cases, and 39 (2.3%) were non-citizens. 1,640 (98.1%) were male, and 32 (1.9%) were female. The average age of the defendant on the date of the original sentence was 32 years, and the average age at resentencing was 45.[13]

Selected sentencing factors: among the motions granted, 42.1% were cases involving weapons (weapon specific offense characteristic and/or firearms mandatory minimum applied). It may also be worth noting that 64.9% of motions were granted where the individual was in Criminal History Category VI (the highest category), and 57% were “Career Offenders” under USSG § 4B1.1— in other words, the majority of motions for reductions in sentence were granted to individuals with significant criminal histories.[14]

Extent of sentence reductions: sentence reductions ranged from 11.9% (sentence reduced from 171 months to 150 months, or 21 months) to 40% (sentence reduced from 229 months to 128 months, or 101 months). The average sentence was 247 months reduced to 178 months— an average reduction of 26.8% (69 months).[15] Translating months to years, the most successful applicant (whose sentence was reduced by 101 months) shaved 8.4 years off the original sentence; and the least successful applicant (whose sentence was reduced by 21 months) reduced his/her sentence by nearly two years. The average successful applicant faced a sentence of approximately 20.6 years that was reduced to 14.8 years—reducing the original sentence by almost six years.

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As we look back at the first few months of the First Step Act, we can see real progress: people earning good time credit are being permitted to earn additional credit toward early release; elderly and terminally ill prisoners are being moved under compassionate-release programs; and retroactive application of the Fair Sentencing Act has enabled people languishing in prison under the prior, outmoded sentencing regime that treated crack cocaine offenses much more severely than powder cocaine to move for reductions in sentence. Furthermore, the Justice Department recently allocated $75 million[16] toward implementation of the First Step Act, thereby signaling its commitment to the success of the law.

That said, the law is only what it purports to be: a first step. It has led to early release for some and reductions in sentences for others, and is expected to improve prison conditions and incentivize inmates to work toward early transfer to halfway houses and home confinement. This is not nothing— but it also is not nearly enough when considering the 2.3 million people in prison in the U.S. today. [17] To truly eradicate the scourge of mass incarceration, more ingenuity, creativity, compassion, and fairness are needed, including: lowering mandatory minimums for charges other than non-violent drug offenses; completely eliminating the disparity in sentencing between crack and powder cocaine; increasing the use of drug treatment and diversion programs; eliminating racial bias and disparate treatment in law enforcement; and increasing support, services, and education in a way that gets people the help they need during and after imprisonment— and that keeps people out of prison to begin with.