The First Step Act: Bipartisan Sentencing Reform Long Overdue
When you see Senate Republicans and Democrats embracing and congratulating one another, you know the magic of the season has decked the halls of Congress. A Christmas miracle? This might be an overstatement. However, yesterday, the Senate in bipartisan manner overwhelmingly passed a sweeping overhaul of the criminal justice system.
The First Step Act, passed 87 to 12, makes several major revisions to sentencing laws. It reduces the “three strikes” penalty for drug felonies from life behind bars to 25 years and retroactively limits the disparity in sentencing guidelines between crack cocaine and powder cocaine offenses. In addition, the bill addresses mandatory-minimum sentences, primarily for drug offenses, and allows federal judges to “depart” downward and exercise more discretion in sentencing.
As a federal criminal defense lawyer, I have seen all too often the harsh realities of mandatory minimum sentences. This bill is a long overdue effort to address the problem at the federal level.
For example, a charge of possession with intent to distribute more than five kilograms of cocaine powder requires the court to impose a sentence of at least 10 years in prison. This type of sentence is particularly harsh on a drug courier (mule) who has no criminal record and agrees to participate in a drug conspiracy in a limited, spur of the moment manner. Before the First Step Act, a federal judge could not sentence this person to under 10 years in prison unless there is a cooperation agreement with the government. Often times, a drug courier may not know enough to cooperate and has to face the harsh sentence. The First Step Act now allows the judge to impose a sentence of less than 10 years, i.e. below what is the statutory mandatory minimum, provided certain circumstances exist that mitigate the person’s role in the offense (such as lack of record, work history, health, education, family and more).
To be clear, the First Step Act affects only the federal system- which, with about 181,000 imprisoned people, holds a small but significant fraction of a U.S. jail and prison population of 2.1 million. In addition, the bill applies mainly to non-violent offenders and is clearly aimed at reducing the human and financial cost of mass incarceration.
The First Step Act does not address all problems with federal sentencing, but it is an excellent bipartisan effort to reduce mass incarceration and give people second chances.