first step act safety valve provision made in china

On behalf of The Leadership Conference on Civil and Human Rights, a coalition charged by its diverse membership of more than 220 national organizations to promote and protect civil and human rights in the United States, we write to express our support for the First Step Implementation Act of 2021 (S. 1014), the Prohibiting Punishment of Acquitted Conduct Act of 2021 (S. 601), and the COVID-19 Safer Detention Act of 2021 (S. 312). In total, these three bipartisan measures would bring about narrow, yet meaningful improvements to federal sentencing. While The Leadership Conference believes that further, and stronger, legislation is necessary to transform our nation’s untenable criminal-legal system, these bills are a welcome step in that direction. We urge you to support these bills and to oppose any amendments that substantially change these provisions.

The First Step Implementation Act of 2021 furthers the goals of the First Step Act of 2018 (FSA),[1] which markedly changed sentencing laws and curbed the number of individuals entering prison. Sentencing practices, such as federal mandatory minimum sentences, are the fundamental building blocks of our system’s use of unnecessarily harsh prison sentences that have fueled our crisis of mass incarceration. While the FSA made necessary advancements to the federal sentencing scheme, it represents only modest improvements to our system and did not implement retroactively key provisions — a necessary component of any federal sentencing legislation.

Accordingly, the First Step Implementation Act of 2021 corrects implementation and interpretation errors that contravene the spirit of the FSA — such as implementing retroactively key sentencing reforms. For instance, the legislation would make the FSA’s sentencing reforms retroactive to individuals who received enhanced mandatory minimum sentences for prior drug offenses and to individuals who received “stacked” mandatory minimum sentences; permit judges to expand the sentencing safety valve in federal drug cases if the court finds that the defendant’s criminal history score overrepresents their record’s seriousness or likelihood of recidivism; allow courts to reduce sentences for offenses committed by those under the age of 18 if the defendant has served at least 20 years; enable sealing or expungement of nonviolent juvenile delinquency adjudications and juvenile criminal records; and require the attorney general to establish procedures to ensure criminal records exchanged for employment purposes are accurate.

While we support the First Step Implementation Act, we also ask you to address other issues arising from the FSA through other mechanisms. In particular, we urge you to continue robust oversight over and investigations into the Bureau of Prisons’ (BOP) implementation of the use of the “Prisoner Assessment Tool Targeting Estimated Risk and Needs” (PATTERN). BOP continues to use PATTERN to make release decisions, even though experts have cautioned that it is scientifically unverified and built on historically biased data resulting in bias against Black people, Latino people, poor people, unhoused people, and people with mental illness.[2] In fact, a January 2021 report by the National Institute of Justice reveals that the Department of Justice was unable to revalidate PATTERN due to errors and inconsistencies — meaning the BOP is using an unvalidated risk-assessment tool to make life and death decisions during the global pandemic.[3] We urge the you to address this issue in several ways: by continuing vigorous and robust oversight to ensure BOP is meeting its commitments under the FSA, by advising BOP to halt the use of PATTERN until it is validated, and by introducing legislation to fix this unreliable and discriminatory assessment.

The Prohibiting Punishment of Acquitted Conduct Act of 2021 similarly makes meaningful improvements to sentencing laws. In particular, S. 601 would ensure that federal judges cannot consider acquitted or dismissed charges in their sentencing decisions. S. 601 would amend 18 U.S.C. §3661 to preclude federal courts from considering acquitted conduct at sentencing, except for the purposes of mitigating a sentence. While juries must convict based on the higher standard of “beyond a reasonable doubt,” current federal law permits judges to impose enhanced sentencing based on acquitted or dismissed charges under the less demanding standard of “preponderance of the evidence.” The consideration of such conduct in sentencing decisions compounds the trial penalty and can often lead to longer federal sentences, exacerbating mass incarceration and depriving defendants of basic due process. This legislation would correct an unjust facet of federal sentencing laws.

The COVID-19 Safer Detention Act of 2021 (S. 312) clarifies and expands the eligibility for the Elderly Home Detention Pilot Program introduced within the FSA. S. 312 ensures that eligibility decisions for the program are subject to judicial review and explicitly names COVID-19 vulnerability as a basis for compassionate release. S. 312 also shortens the judicial review waiting period for elderly home detention and compassionate release during the pandemic from 30 to 10 days. The COVID-19 virus has swept through federal prisons: as of September 10, 2021, more than 42,000 federally incarcerated individuals have contracted the coronavirus, and more than 250 federally incarcerated individuals, many of whom were over 60 years old, have died of the virus.[4] High rates of underlying health issues among incarcerated populations place many individuals in custody in high-risk categories that make them more susceptible to complications if they contract the virus.[5] This legislation provides for meaningful expansion of the pilot program and removes arbitrary benchmarks that ultimately endanger lives. Moreover, while this legislation is written within the context of the global health crisis, the pandemic has shown that release has not had a deleterious impact on public safety, and we encourage Congress to make permanent effective programs such as this even after the end of the pandemic.

These three bills represent meaningful improvements to address faults in the federal sentencing scheme and further fulfill the promise of the First Step Act. These bills will immediately save lives and curb the number of individuals forced into the criminal-legal system. We urge you to support these important bills. If you have any questions, please contact Sakira Cook, Senior Director of the Justice Reform Program, at [email protected].

[3] Nat’l Inst. Of Justice. “2020 Review and Revalidation of the First Step Act Risk Assessment Tool.” Jan. 2021. Pg. 7. https://www.ojp.gov/pdffiles1/nij/256084.pdf.

Over the past five decades, U.S. criminal-legal policies have driven an increase in incarceration rates that is unprecedented in this country’s history and unmatched globally: the United States incarcerates more people than any other country in the world, with more than 2 million people currently incarcerated in U.S. prisons and jails.[1] Over-criminalization and over-incarceration have devastating impacts on those ensnared in the criminal-legal system and on their families, do not produce any proportional increase in public safety, and disproportionately harm low-income communities and communities of color. In particular, mandatory minimum penalties are a key driver of the burgeoning prison population, and eliminating them is crucial to any sentencing reform legislation. The Leadership Conference is categorically opposed to mandatory minimums sentences, and urges Congress to take steps toward repairing the damage wrought by these penalties by ending blanket policies that do not allow for judicial discretion and promoting alternatives to arrest and incarceration.

Since the mid-20th century, Congress has expanded its use of mandatory minimum penalties by broadening it to include  different offenses and lengthening the mandatory minimum sentences.[2] The proliferation of the use of mandatory minimum sentences has fueled skyrocketing prison populations.[3] The federal prison population has increased from approximately 25,000 in FY1980 to nearly 152,894 today.[4] For each year between 1980 and 2013, federal prisons added almost 6,000 more inmates than the previous year.[5] As of 2016, 55% of the federal prison population was comprised of those who had been sentenced under a mandatory minimum provision.[6] While drops in prosecutions and in the severity of sentences for drug-related crime, as well as releases due to the COVID-19 pandemic, have led to a decline in the federal prison population in recent years, by and large these piecemeal changes are insufficient to reverse nearly forty years of explosive growth.[7] The Bureau of Prisons’ (BOP) budget has grown in tandem: the President’s FY22 budget request for BOP is $8 billion, which accounts for nearly a quarter of the Department of Justice’s (DOJ) entire budget.[8]

Draconian drug laws and their resulting enforcement are the source of much of this growth. Under the banner of the War on Drugs, the Reagan administration imposed particularly harsh mandatory minimum penalties for drug offenses under the Anti-Drug Abuse Act of 1986 and dedicated more than a billion dollars ($2.3 billion in today’s dollars) to law enforcement efforts to increase drug arrests. The Violent Crime Control and Law Enforcement Act of 1994 (known colloquially as the 1994 Crime Bill) instituted a “three strikes” penalty that mandated a life sentence for anyone convicted of certain prior drug or violent felonies and incentivized states to adopt similar ‘tough-on-crime’ policies.[9] The “arrest-first” policies of the 1980s and ‘90s led to a surge in drug arrests, with a particularly large impact on cannabis arrests,[10] and an attendant use of long mandatory minimum sentences that caused the federal prison population to explode. The Urban Institute has found that increases in expected time served for drug offenses was the largest contributor to growth in the federal prison population between 1998 and 2010.[11] The Charles Colson Task Force on Federal Corrections, a Congressionally-mandated, bipartisan organization, attributes the growth both to the number of people admitted to prison for drug crimes as well as to the increased length of their sentences.[12] Currently, people convicted of drug offenses make up 46.3 percent of the BOP population.[13]

Yet, despite the dramatic uptick in incarceration, there is no indication that these sentences deter crime, protect public safety, or decrease drug use or trafficking. Increasing the severity of punishment has little impact on crime deterrence, and studies of federal drug laws show no significant relationship between drug imprisonment rates and drug use or recidivism.[14] The punishment-based approach to the War on Drugs, with its dramatic increase in the use of mandatory minimums — and corresponding increase in incarceration — has produced lasting harm in communities across the country while having little effect on actual drug use or crime. Unfortunately, the myth that punishment and harsh mandatory minimums will reduce drug use and crime persists in real and consequential ways: just this past April, Congress extended the temporary “class wide” emergency scheduling of fentanyl-related substances, which will exacerbate untenable federal sentencing trends and give rise to harsh mandatory minimum penalties for offenses involving fentanyl analogues.[15] Statistics about the growth in mass incarceration due to mandatory minimums, combined with data showing they have no positive effect on public safety, illustrate the harmful impact of these sentences on prison growth and the need to turn away from such antiquated “tough on crime” policies.

Mandatory minimums also eliminate judicial discretion, preventing judges from tailoring punishment to a particular defendant by taking into account an individual’s background and the circumstances of his or her offenses when determining his or her sentence. Mandatory minimums instead place more power in the hands of prosecutors and their charging decisions, which is particularly concerning given that prosecutors are more likely to charge Black people with a crime that carries a mandatory minimum than a White person.[16] Mass incarceration as a whole has had a markedly disproportionate impact on communities of color. Today, BOP reports that 38 percent of its current prison population is Black and 30.2 percent is Hispanic, an enormous disparity given that both groups represent only about one third of the nation’s population combined.[17] These disparities are also reflected in mandatory minimum penalties. In a 2017 review of mandatory minimum sentencing policies, the U.S. Sentencing Commission found that Black people in BOP custody were more likely to have been convicted of an offense carrying a mandatory minimum penalty than any other group.[18] Hispanic and Black people accounted for a majority of those convicted with an offense carrying a drug mandatory minimum,[19] despite the fact that White and Black people use illicit substances at roughly the same rate, and Hispanic people use such substances at a lower rate.[20] The study also showed that Black people were the least likely to receive relief from mandatory minimum sentences compared to White and Hispanic people.[21] Finally, the review found racial disparities in convictions of a federal offense subject to a mandatory minimum penalty: 73.2 percent of Black people convicted of a federal offense received a mandatory minimum sentence, compared to 70 percent of White people and 46.9 percent of Hispanic people.[22] It is clear that mandatory minimums create stark racial disparities in federal sentencing.

Congress has made some progress toward addressing the harms of mandatory minimums. In 2010, Congress passed the Fair Sentencing Act (FSA), which reduced the disparities between the mandatory penalties for crack and powder cocaine from 100:1 to 18:1. Building on this legislation, the First Step Act of 2018 made necessary, though modest, improvements to the federal sentencing scheme by making the FSA retroactive and through expanding the federal safety valve, which permits a sentencing court to disregard minimum sentences for low-level, nonviolent defendants. Under this provision, judges have discretion to make a person eligible for the safety valve in cases where the seriousness of his or her record is over-represented, or it is unlikely he or she would commit other crimes. The law also reformed and reduced the unfair three-strike mandatory minimum sentence from life to 25 years. The First Step Act further eliminated 924(c) stacking, which had permitted consecutive sentences for gun charges stemming from a single incident committed during a drug crime or a crime of violence. Unfortunately, the law does not make most of its sentencing reforms retroactive, leaving thousands of people in prison. The First Step Implementation Act of 2021, which will soon go to the Senate floor for a vote, makes these key reforms retroactive and further expands the safety valve. Additionally, the House last year voted to address the collateral consequences of federal marijuana criminalization by passing the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, which would, among provisions, provide for the expungement and resentencing of marijuana offenses. We urge you to support this year’s version of the MORE Act, H.R. 3617, in order to right the wrongs of decades of this criminalization.

Yet, these small, measured steps cannot adequately redress years of cruel and lengthy sentencing policies. To address fully the immense harms perpetrated by mandatory minimums and other sentencing practices, Congress must go beyond these incremental reforms and pass meaningful and expansive legislation that transforms the federal sentencing scheme. Such reform would reduce unnecessarily lengthy stays, enabling people to rebuild their lives, reducing the exorbitant costs of the prison system, and give redress to those serving unreasonably long sentences.

Mandatory minimum penalties have incurred devastating economic, societal, and human costs, destroying families and irreparably damaging communities of color. The penalties are lengthy, with almost no room for discretion or mercy. As one federal judge has declared, these are sentences that “no one – not even the prosecutors themselves – thinks are appropriate.”[23] President Biden has also recognized this destructive impact and has called for an end to federal mandatory minimum sentences and other harmful practices.[24] These sentences, and particularly those for drug offenses, have led to an explosion in the federal prison population with no attendant positive impact on crime deterrence or public safety. As we mark the 50th anniversary of the War on Drugs in 2021, we strongly urge Congress to take bold steps to address the damage wrought by mandatory minimum sentencing and transform our criminal-legal system into one that delivers true justice and equality.

[3] See, e.g., Samuels, Julie, & La Vigne, Nancy, & Thomson, Chelsea. “Next Steps in Federal Corrections Reform: Implementing and Building on the First Step Act.” Urban Institute. May 2019. https://www.urban.org/sites/default/files/publication/100230/next_steps_in_federal_corrections_reform_1.pdf; Travis, Jeremy, & Western, Bruce, & Redburn, Steve. “The Growth of Incarceration in the United States: Exploring Causes and Consequences.” Nat’l Research Council. 2014. Pg. 336. http://blogs.law.columbia.edu/praxis1313/files/2019/04/Chapter-13-NAS.pdf.

[9] “Violent Crime Control and Law Enforcement Act of 1994: U.S. Dep’t of Justice Fact Sheet.” U.S. Dep’t of Justice. Oct. 24, 1994. https://www.ncjrs.gov/txtfiles/billfs.txt. The First Step Act of 2018 reduced this sentence to 25 years. Pub. L. No. 115-391 (2018).

[17] “Inmate Statistics.” Federal Bureau of Prisons. Updated June 5, 2021. https://www.bop.gov/about/statistics/statistics_inmate_race.jsp. Hispanics make up 18.5% of the U.S. population, while Black people make up 13.4%. “United States QuickFacts.” U.S. Census Bureau. Last updated July 1, 2019. https://www.census.gov/quickfacts/fact/table/US/PST045219.

The Act represents a dramatically different and enlightened approach to fighting crime that is focused on rehabilitation, reintegration, and sentencing reduction, rather than the tough-on-crime, lock-them-up rhetoric of the past.

Perhaps the Act’s most far-reaching change to sentencing law is its expansion of the application of the Safety Valve—the provision of law that reduces a defendant’s offense level by two and allows judges to disregard an otherwise applicable mandatory minimum penalty if the defendant meets certain criteria. It is aimed at providing qualifying low-level, non-violent drug offenders a means of avoiding an otherwise draconian penalty. In fiscal year 2017, nearly one-third of all drug offenders were found eligible for the Safety Valve.

Until the Act, one of the criteria for the Safety Valve was that a defendant could not have more than a single criminal history point. This generally meant that a defendant with as little as a single prior misdemeanor conviction that resulted in a sentence of more than 60 days was precluded from receiving the Safety Valve.

Section 402 of the Act relaxes the criminal history point criterion to allow a defendant to have up to four criminal history points and still be eligible for the Safety Valve (provided all other criteria are met). Now, even a prior felony conviction would not per se render a defendant ineligible from receiving the Safety Valve so long as the prior felony did not result in a sentence of more than 13 months’ imprisonment.

Importantly, for purposes of the Safety Valve, prior sentences of 60 days or less, which generally result in one criminal history point, are never counted. However, any prior sentences of more than 13 months, or more than 60 days in the case of a violent offense, precludes application of the Safety Valve regardless of whether the criminal history points exceed four.

These changes to the Safety Valve criteria are not retroactive in any way, and only apply to convictions entered on or after the enactment of the Act. Despite this, it still is estimated that these changes to the Safety Valve will impact over 2,000 offenders annually.

Currently, defendants convicted of certain drug felonies are subject to a mandatory minimum 20 years’ imprisonment if they previously were convicted of a single drug felony. If they have two or more prior drug felonies, then the mandatory minimum becomes life imprisonment. Section 401 of the Act reduces these mandatory minimums to 15 years and 25 years respectively.

These amendments apply to any pending cases, except if sentencing already has occurred. Thus, they are not fully retroactive. Had they been made fully retroactive, it is estimated they would have reduced the sentences of just over 3,000 inmates. As it stands, these reduced mandatory minima are estimated to impact only 56 offenders annually.

Section 403 of the Act eliminates the so-called “stacking” of 18 U.S.C. § 924(c)(1)(A) penalties. Section 924(c) provides for various mandatory consecutive penalties for the possession, use, or discharge of a firearm during the commission of a felony violent or drug offense. However, for a “second or subsequent conviction” of 924(c), the mandatory consecutive penalty increases to 25 years.

Occasionally, the Government charges a defendant with multiple counts of 924(c), which results in each count being sentenced consecutive to each other as well as to the underlying predicate offense. For example, a defendant is charged with two counts of drug trafficking and two counts of 18 U.S.C. § 924(c)(1)(A)(i), which requires a consecutive 5 years’ imprisonment to the underlying offense for mere possession of a firearm during the commission of the drug offense. At sentencing, the Court imposes 40 months for the drug trafficking offenses. As a result of the first § 924(c)(1)(A)(i) conviction, the Court must impose a consecutive 60 months (5 years). But what about the second § 924(c)(1)(A)(i) conviction? In such situations, courts have been treating the second count as a “second or subsequent conviction.” As such, the 60-month consecutive sentence becomes a 300 month (25 years) consecutive sentence. In our hypothetical, then, the sentencing court would impose a total sentence of 400 months (40+60+300) inasmuch as the second 924(c) count was a “second or subsequent conviction.”

Now, under the Act, to avoid such an absurd and draconian result, Congress has clarified that the 25-year mandatory consecutive penalty only applies “after a prior conviction under this subsection has become final.” Thus, the enhanced mandatory consecutive penalty no longer can be applied to multiple counts of 924(c) violations.

Finally, Section 404 of the Act makes the changes brought about by the Fair Sentencing Act of 2010 fully retroactive. As the U.S. Sentencing Commission’s “2015 Report to Congress: Impact of the Fair Sentencing Act of 2010,” explained: “The Fair Sentencing Act of 2010 (FSA), enacted August 3, 2010, reduced the statutory penalties for crack cocaine offenses to produce an 18-to-1 crack-to-powder drug quantity ratio. The FSA eliminated the mandatory minimum sentence for simple possession of crack cocaine and increased statutory fines. It also directed the Commission to amend the U.S. Sentencing Guidelines to account for specified aggravating and mitigating circumstances in drug trafficking offenses involving any drug type.”

While the Act now makes the FSA fully retroactive, those prisoners who already have sought a reduction under the FSA and either received one, or their application was otherwise adjudicated on the merits, are not eligible for a second bite at the apple. It is estimated that full retroactive application of the FSA will impact 2,660 offenders.

Reducing the severity and frequency of some draconian mandatory minimum penalties, increasing the applicability of the safety valve, and giving full retroactive effect to the FSA signals a more sane approach to sentencing, which will help address prison overpopulation, while ensuring scarce prison space is reserved only for the more dangerous offenders.

Mark H. Allenbaugh, co-founder of Sentencing Stats, LLC, is a nationally recognized expert on federal sentencing, law, policy, and practice. A former staff attorney for the U.S. Sentencing Commission, he is a co-editor of Sentencing, Sanctions, and Corrections: Federal and State Law, Policy, and Practice (2nd ed., Foundation Press, 2002). He can be reached at mark@sentencingstats.com.

This website is using a security service to protect itself from online attacks. The action you just performed triggered the security solution. There are several actions that could trigger this block including submitting a certain word or phrase, a SQL command or malformed data.

This website is using a security service to protect itself from online attacks. The action you just performed triggered the security solution. There are several actions that could trigger this block including submitting a certain word or phrase, a SQL command or malformed data.

After many months of negotiations between a Republican-controlled U.S. Congress and the Trump Administration, on December 21, 2018, the First Step Act of 2018 (FSA) was signed into law by President Trump.[1] While this legislation was named the “First Step Act” to signal that it was the first attempt at incremental change to the federal criminal justice system, that name is actually a misnomer and ignores several successful reforms that preceded the legislation’s passage.[2] The FSA was actually the next step of many previous steps that have resulted in reforms far more significant to the federal criminal justice system.

Well before Jared Kushner, President Trump’s son-in-law, joined with some conservative and progressive organizations and became interested in federal criminal justice reform, there were many criminal justice, civil rights, human rights, and faith-based activists who successfully advocated for justice reform, including sentencing reform, on the federal level over the past fifteen years. Early supporters of the FSA did not think that President Trump or the Republican Congress would support changes to sentencing laws, and were satisfied with including what they considered prison reform provisions or “back end” changes to the criminal justice system.[7] In addition, former U.S. Attorney General Jeff Sessions, the DOJ, and several members of Congress opposed including sentencing reforms.[8]

During the first six months after the law was enacted, almost all of the people who have benefited from the law benefited from the sentencing provisions that early supporters and former Attorney General Sessions were willing to sacrifice. However, many criminal justice, civil rights, and faith advocates, as well as members of Congress understood that no true changes to the federal system could happen without addressing the unjust sentencing laws that have contributed to the mass incarceration crisis in this country.[9]

Moreover, advocates and allies on the Hill knew what policies were driving federal incarceration and they were not the prison reform provisions in the FSA. Currently, forty-five percent of the people in federal prison are there for drug crimes. What was and is driving incarceration on the federal level are the long sentences associated with drug crimes and the increasing number of people being prosecuted for immigration crimes.[10] Thus, it is no surprise that the sentencing sections of the FSA, in the end, were the most important aspect of the bill, but were only added toward the end of the debate about federal reform.

The possibility of these efforts actually began under another Republican President, George W. Bush, who in his 2004 State of the Union speech said, “America is the land of second chance, and when the gates of the prison open, the path ahead should lead to a better life.”[11] This sentiment being expressed by a Republican President, a member of a party that has been known as the more “law and order” political party of the two major parties, created an opening to begin a conversation about criminal justice reform. Later that year, President Bush announced his Prisoner Re-Entry Initiative (PRI) designed to assist formerly incarcerated people in their efforts to return to their communities. PRI connected people returning from prison with faith-based and community organizations to assist them in finding work and prevent them from recidivating.[12] Ultimately, Congress passed legislation in 2008 called the Second Chance Act (SCA) that created funding for organizations around the country to help people coming home from prison by providing reentry services needed to transition back to their communities.[13] The concept for this federal funding was born out of President Bush’s PRI.

In 2005, the American Civil Liberties Union (ACLU), Brennan Center for Justice, and Break the Chains organizations published a groundbreaking report titled, Caught in the Net: The Impact of Drug Policies on Women and Families.[14] This report was one of the first publications to document the alarming rise of incarceration of women for drug offenses. In 2005, there were more than eight times as many women incarcerated in state and federal prisons and local jails as in 1980. The number of women imprisoned for drug-related crimes in state facilities increased by 888% between 1986 and 1999.[15] These numbers are important because more than forty-five percent of the people in federal prison are there for drug offenses, of which seven percent are women.

Almost simultaneously, federal advocates began to reinvigorate efforts to address one of the most notoriously discriminatory federal criminal laws, also known as the 100 to one crack to powder disparity. This law, enacted in 1986, punished people more harshly for selling crack cocaine than it did powder cocaine. Under the 1986 Anti-Drug Abuse Act, a person would receive at least a five-year mandatory minimum sentence for selling 500 grams of powder cocaine but would receive the same sentence for selling merely five grams of crack cocaine. More importantly, what was apparent at the time was that crack cocaine was used in African-American communities because it was more readily available due to the lower cost compared to powder cocaine. Powder cocaine was used more often by whites because they could afford to purchase the more expensive drug. In 2010, President Barack Obama signed into law the Fair Sentencing Act (FSA 2010) which reduced the 100 to one disparity between crack and powder cocaine to eighteen to one and eliminated the five-year mandatory sentence for possession of crack cocaine.[16]

Between 2005 and 2019, a combination of legal, legislative, executive, and U.S. Sentencing Commission (Sentencing Commission) law and policy changes resulted in reforms that led to a decline in the federal prison population of more than 38,000 people.[21] At its height, the BOP held more than 219,000 people in federal prisons across the country. As of September 2019, those numbers have decreased to 177,251.[22] The reason for the significant decline is because these legal and policy changes were focused on revamping federal sentencing and retroactive application of changes. Similarly, the most impactful provision of the FSA has been retroactivity of the FSA 2010. The Sentencing Commission estimates that the expansion of the 1994 safety valve provision[23] will also have a significant effect for years to come.

Some of these reforms took place years before the “First Step” Act or bills that preceded it[24] were even thought of, but it is important to understand how these and other policy changes laid the foundation for a “First Step” Act to become law. Furthermore, early supporters of the “First Step” Act cannot rewrite history with the title of a bill. In the end, this legislation was an example of incremental change to the federal criminal justice system, but it was not the first example, nor the most significant. In order for history to reflect an accurate picture of how reforms to the federal criminal justice system have successfully unfolded over the past decade or more, this Article will detail the actual first steps that led to a political environment in Washington where criminal justice reform could be considered, and ultimately enacted in 2018.

Mandatory minimum penalties are criminal penalties requiring, upon conviction of a crime, the imposition of a specified minimum term of imprisonment.[25] The Boggs Act, which provided mandatory minimum sentences for drug offenses, was passed in 1951.[26] In 1951, Congress began to enact additional mandatory minimum penalties for more federal crimes.[27] Congress passed the Narcotics Control Act in 1956, which increased these mandatory minimum sentences to five years for a first offense and ten years for each subsequent drug offense.[28]

Since then, mandatory minimum sentences have proliferated in every state and federal criminal code. In 1969, Nixon called for drastic changes to federal drug control laws. In 1970, Congress responded with the Comprehensive Drug Abuse Prevention and Control Act of 1970, supported by both Republicans and Democrats, which eliminated all mandatory minimum drug sentences except for individuals who participated in large-scale ongoing drug operations. Nixon signed the Act on October 27, 1970.[29]

Ironically, the next year, Nixon declared a “war on drugs” and increased the presence of federal agencies charged with drug enforcement and supported bills with mandatory sentences.[30] John Ehrlichman, an aide to Nixon, more recently has admitted that the “war on drugs” was actually a war on black people:

Mandatory minimum sentences for federal drug offenses emerged again after the death of Len Bias. In 1986, University of Maryland basketball star Len Bias died of a drug overdose just days after the Boston Celtics picked him in the NBA draft.[32] After the reemergence of mandatory sentences in federal law in the 1980s, many observers began to see the same problems that lead to the repeal of drug mandatory minimums in 1970. Mandatory sentences prohibit judges from reducing an individual’s sentence based on mitigating factors such as circumstances of the case or a person’s role, motivation, or likelihood of repeating the crime. Treating similar defendants differently and different defendants the same is unfair. Also, it is ineffective at reducing criminal behavior because mandatory sentences do not take into account the many factors prosecutors consider when deciding if they will charge the minimum sentence.[33]

Contrary to popular belief, mandatory minimum sentencing laws are neither mandatory nor do they impose minimum sentences. Some have said that the combination of unjust sentences and a dangerous combination of unencumbered prosecutorial power has created what is known as the “trial penalty.”[36] The trial penalty is when people who exercise their right to trial receive higher sentences than those who plead guilty. True mandatory sentencing laws would result in everyone arrested for the same crime receiving the same sentence if convicted. But in reality, mandatory sentences simply transfer the discretion that a judge should have to impose an individualized sentence based on relevant factors, such as a defendant’s role in the crime, criminal history, and likelihood of reoffending, and give that discretion to prosecutors.

A prosecutor need never disclose her reasons for bringing or dropping a charge. Judges, on the other hand, must disclose their reasons for sentencing in the written public court record, and aggravating factors can be contested by the defendant.[37] A defendant faced with a plea deal of 1.5 years or a risk of twenty years imprisonment if he goes to trial is likely to choose the former, no matter how weak the evidence. Individuals who choose to exercise their constitutional rights and go to trial are often sentenced not only for their misconduct, but also for declining to take the plea deal on the prosecutor’s terms.[38] The threat of mandatory minimum penalties may cause defendants to give false information,[39] to plead guilty to charges of which they may actually be innocent,[40] or to forfeit a strong defense.[41]

Federal mandatory minimum laws and some state laws afford defendants relief from the mandatory minimum in exchange for information helpful to prosecutors. People charged with low-level crimes and charged with mandatory minimums—drug couriers, addicts, or those on the periphery of the drug trade, such as spouses—often have no information to give to prosecutors for a sentence reduction. Finally, it is extremely expensive to incarcerate people under mandatory sentences. By putting all discretion in the hands of prosecutors who have a professional interest in securing as many convictions as possible, mandatory minimums ensure that public policy concerns about cost, racial disparities, and whether a particular sentence results in public safety are not a priority.[42] The decision regarding what level of incarceration will serve public safety is best left in the hands of judges, who have more of an incentive to balance public safety needs against the facts of an individual case.

In the 1970s, observers of the American judicial system were increasingly concerned with the widespread disparity in sentencing. Judges, with very broad discretion, imposed widely varying sentences for the same offenses. The enactment of the Sentencing Reform Act of 1984 (SRA)[43] was Congress’s response to the growing inequality in federal sentences.[44] The SRA’s objectives were to increase certainty and fairness in the federal sentencing system and to reduce unwarranted disparity among individuals with similar records who were found guilty of similar crimes. The legislation created the Sentencing Commission, an independent expert panel given the responsibilities of producing federal sentencing guidelines and monitoring the application of the guidelines.[45]

As enacted, the SRA codified a framework for a determinate sentencing scheme under federal law.[46] Supporters of the SRA wanted to reduce unwarranted disparity among defendants having similar records or guilty of similar conduct. They also wanted to increase certainty and fairness of sentencing. The drafter of the SRA, Kenneth Feinberg, said himself that the primary motivating factor was the concern over sentencing disparities.[47] Parole in the federal system was abolished entirely, and to provide the certainty and fairness that SRA proponents sought, sentences were to be based upon “articulate grounds.”[48] Courts were directed to “‘impose a sentence sufficient, but not greater than necessary, to comply with the purposes (of sentencing).’”[49] The statute enumerated four purposes of sentencing: (1) punishment, (2) deterrence, (3) incapacitation, and (4) rehabilitation.[50] However, the statutory text of the SRA provides no clear statement as to how these four purposes were to be reconciled with each other.

Not long after the passage of the SRA, Congress began to enact new mandatory minimum sentences.[51] From 1984 to 1990, Congress passed a number of mandatory minimums primarily aimed at drugs and violent crime.[52] Lawmakers argued that enacting mandatory penalties would deter crime by creating fixed and lengthy prison terms.[53] Less than ten years after passing many of the mandatory penalties, members of Congress familiar with criminal justice issues began to realize that these sentences were inconsistent with the objectives of the SRA.[54]

After the enactment of the SRA, the most infamous mandatory minimum law passed by Congress was the penalty relating to crack cocaine. Cocaine had long been illegal in America, and, as later happened with crack, powder cocaine’s prohibition had always carried a racial component.[55] Crack was a new method of packaging the drug, produced by heating a mixture of powder cocaine (cocaine hydrochloride), baking soda (sodium bicarbonate), and water. The chemical interaction between these ingredients creates what is commonly known as “crack”—a hard material similar to a rock.[56] Applying a hot flame will vaporize crack, and, through smoking, cocaine vapor can be inhaled into the lungs and can very quickly enter the bloodstream and go to the brain.

In June 1986, the country was shocked by the death of University of Maryland basketball star Len Bias in the midst of crack cocaine’s emergence in the drug culture. Bias, who was African American, died of a drug and alcohol overdose three days after being drafted by the Boston Celtics. Many in the media and public assumed that Bias died of a crack overdose.[58] Motivated in large part by the notion that the infiltration of crack cocaine was devastating America’s inner cities and by Bias’ death, Congress quickly passed the 1986 Anti-Drug Abuse Act (ADAA). Many in Congress believed that the existing sentences for drug crimes were inadequate to deal with the dangers of this new drug based on the enormous fear of crack. Although it was later revealed that Bias actually died of a powder cocaine overdose,[59] Congress had already passed the harsh, discriminatory crack cocaine law by the time the truth about Bias’ death was discovered.

Congress did not provide a clear record of the reasons for the sentencing disparity between minor crack infractions and serious powder offenses even though Congress intended to combat the crack cocaine “epidemic” through this legislation.[60] The Senate conducted only a single hearing on the 100 to one ratio, which only lasted a few hours and few hearings were held in the House on the enhanced penalties for crack offenses.[61] As a consequence of the ADAA’s expedited schedule, there was no committee report to document Congress’ intent in passing the ADAA or to analyze the legislation. The abbreviated legislative history of the ADAA does not provide a single consistently cited rationale for the crack powder penalty structure.

What little legislative history that does exist suggests that members of Congress believed that crack was more addictive than powder cocaine[66] and that it caused crime.[67] It also indicates members of Congress thought that crack cocaine caused psychosis and death, and that young people were particularly prone to becoming addicted to it,[68] as well as that crack’s low cost and ease of manufacture would lead to even more widespread use. Based on what ultimately turned out to be myths, Congress decided to punish crack more severely than powder.

Two years later, drug-related crimes were still on the rise. In response, Congress intensified its war against crack cocaine by passing the Omnibus Anti-Drug Abuse Act of 1988.[70] The 1988 Act created a five-year mandatory minimum and twenty-year maximum sentence for simple possession of five grams or more of crack cocaine.[71] The maximum penalty for simple possession of any amount of powder cocaine or any other drug remained at no more than one year in prison.

In the years after the enactment of the ADAA, many of the myths associated with crack cocaine have been dispelled. In 1996, a study published by the Journal of American Medical Association found that the physiological and psychoactive effects of cocaine are similar regardless of whether it is in the form of powder or crack.[72] In addition, the media stories that appeared in the late 1980s of crack-addicted mothers giving birth to “crack babies” are now considered greatly exaggerated.[73]

In the 1990s, federal sentencing policy for cocaine and crack offenses came under extensive scrutiny. These concerns led Congress in the Violent Crime Control and Law Enforcement Act of 1994 (1994 Crime Bill) to direct the Sentencing Commission to submit a report and recommendations to Congress on cocaine sentences.[74] On February 28, 1995, the Sentencing Commission unanimously recommended that changes be made to the cocaine sentencing structure including a reduction in the 100 to one ratio.[75] On May 1, 1995, the Sentencing Commission submitted to Congress proposed legislation and amendments to its sentencing guidelines, which would have equalized the penalties between crack and powder cocaine possession and distribution at the level of powder cocaine, and provided sentencing enhancements for violence or other harms.[76] On October 30, 1995, Congress rejected the proposed amendment to the sentencing guidelines and directed the Sentencing Commission to make further recommendations regarding the powder and crack cocaine statutes and guidelines that did not advocate parity.[77] For the first time in the guidelines’ history, Congress and the President rejected a guideline amendment approved by the Sentencing Commission.[78] Congress explicitly directed the Sentencing Commission that “the sentence imposed for trafficking in a quantity of crack cocaine should generally exceed the sentence imposed for trafficking in a like quantity of powder cocaine.”[79]

Again in 2002, the Sentencing Commission examined the disparity. The Sentencing Commission had hearings with a wide range of experts, who overwhelmingly concluded that there is no valid scientific or medical distinction between powder and crack cocaine.[83] Among those experts was Dr. Glen Hanson, then Acting Director of the National Institute on Drug Abuse, who testified before the Sentencing Commission, stating that, in terms of pharmacological effects, crack cocaine is no more harmful than powder cocaine. Dr. Alfred Blumstein, Professor of Urban Systems and Operations Research at Carnegie Mellon University, indicated that it would be more rational to use sentencing enhancements to punish individuals who use violence, regardless of the drug type, rather than to base sentencing disparities on the chemical itself. Such enhancements should also account for a person’s role in the drug trade. He also noted that the 100 to one drug quantity disparity suggests racial discrimination.[84]

After the 2002 hearings, the Sentencing Commission issued a new report on crack and powder cocaine disparities and once again found that the 100 to one ratio between the drugs was unjustified.[85] The Sentencing Commission made the following findings: (1) the current penalties exaggerate the relative harmfulness of crack cocaine, (2) the current penalties sweep too broadly and apply most often to lower level offenders, (3) the current quantity-based penalties overstate the seriousness of most crack cocaine offenses and fail to provide adequate proportionality, and (4) the current penalties’ severity mostly impacts minorities.[86]

Stephen Breyer, a current Supreme Court Justice, stated that: “[i]n 1994 Congress enacted a ‘safety-valve’ permitting relief from mandatory minimums for certain non-violent, first-time drug offenders. This, in my view, is a small, tentative step in the right direction. A more complete solution would be to abolish mandatory minimums altogether.”[90]

[these] mandatory minimum sentences are perhaps a good example of the law of unintended consequences. There is a respectable body of opinion which believes that these mandatory minimums impose unduly harsh punishment for first-time offenders. . . . [M]andatory minimums have also led to an inordinate increase in the prison population and will require huge expenditures to build new prison space . . . .[91]

In 2004, the Blakely v. Washington[92] decision laid the groundwork for the Court to address mandatory federal sentencing guidelines. Blakely pleaded guilty to the kidnapping of his estranged wife which under Washington state law would have resulted in a maximum sentence of fifty-three months. The judge in the case sentenced Blakely to ninety months because he had acted with “deliberate cruelty.”[93] The Court held an “exceptional” sentence increase under state law, based on the judge’s finding and not a jury’s, violated his Sixth Amendment right to trial by jury.[94] The Court ruled that, based on its decision in Apprendi v. New Jersey,[95] facts increasing the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.[96]

The next year, the Court was faced with a case involving a federal judge sentencing a defendant above the Guidelines in United States v. Booker.[97] The Court again held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, or even the ordinary sentencing range, must be submitted to a jury and proved beyond a reasonable doubt. As a result, the Court held that the Guidelines violated the Sixth Amendment’s right to trial by jury and declared that the Guidelines could not be mandatory.[98] Prior to Booker, the statute compelled sentencing courts to impose sentences within the Guidelines’ range, barring exceptional circumstances specific to the individual.[99] Trial judges could not account for instances when the Guidelines sentence for a specific offense failed to effectuate the broad sentencing goals articulated by Congress.[100] Bookerfundamentally altered the landscape of sentencing. The opinion in Booker struck from the federal sentencing statute the provision that mandated the imposition of sentences within the Guidelines.[101] While allowing sentencing courts to continue to make factual findings, the Booker opinion cured the statute of constitutional infirmity by declaring the Guidelines to be merely advisory. In 2007, the Court in Rita v. United States[102] reiterated that sentencing courts could no longer “presum[e] that the Guidelines sentence should apply.”[103] Rita emphasized that district courts must take the Guidelines into account when sentencing, even if they are no longer bound by them.[104]

The Booker decision was a reaction to a number of problems in the pre-Booker system. Noticeably, sentencing pre-Booker still encompassed many of the same problems the SRA set out to remedy—imbalance, consistency, and unfairness. While attempting to resolve inconsistency in sentencing, the SRA became too rigid. With respect to individual characteristics, the Guidelines significantly restricted judges’ ability to consider many aspects, such as a defendant’s age and family circumstances, and instead focused on a defendant’s criminal record as the most important characteristic.[105] As the former Chair of the Sentencing Commission, Judge William K. Sessions, argued that the Guidelines turned judges into computers, thereby taking away their humanity and reason.[106]

With the Booker decision, federal courts began to apply the Guidelines in an advisory manner to reduce some of the rigidity which some judges complained of. However, judges are only able to sentence people below statutory mandatory minimum sentences in limited circumstances.[107] In the wake of Booker, the Sentencing Commission continues to fulfill its role in developing guidelines, but judges no longer are required to follow the Guidelines. Under the advisory Guidelines system, sentencing courts are still tasked with consulting the Guidelines, but are not bound by them. The Guidelines still provide federal judges with fair and consistent sentencing ranges to consult at sentencing. The advisory Guidelines take into account both the seriousness of the criminal conduct and the defendant’s criminal record. Certain characteristics (including age and mental condition) “may be relevant” in granting a departure from the Guidelines range if “present to an unusual degree.”[108] The Sentencing Commission has also taken steps to encourage judges to consider human characteristics in sentencing.[109]

Now the next question was would the Sentencing Commission have the courage to apply the new amendment to those in prison, i.e. retroactively. In April 2008, the Sentencing Commission did just that by voting unanimously to apply the Crack -2 amendment retroactively.[116] As of June 2011, over 16,000 people were resentenced by federal judges across the country in accordance with the Guideline amendment.[117] The process of resentencing individuals based on the retroactive amendment was smoothly coordinated among the courts, probation officers, U.S. Attorneys’ offices, and the Federal Public Defenders. This was a critical moment in the reform movement in Washington to address one of the most unjust and discriminatory federal sentencing policies. Advocates had finally convinced an important branch of government to take steps to deal with the burgeoning federal prison population and the policies that were fueling it.

Another critical turning point in the movement to address mass incarceration at both the federal and state level was in 2008, when the Pew Center on States’ Public Safety Project (Pew) released its report, One in 100: Behind Bars in America 2008.[119] This groundbreaking report found for the first time in history that more than one in every 100 adults in America were in jail or prison.[120] The report also detailed how mass incarceration in this country impacted state budgets without increasing public safety.[121] Pew’s ability to crystalize the increasing reliance on incarceration in America with the easily understandable statistic of one in 100 got the attention of the public, advocates, and policymakers.

Furthermore, the report, while acknowledging the need to incarcerate violent and repeat offenders, notes that more people are behind bars principally because of a flood of policy choices such as the “three-strikes” and other sentencing laws that impose longer, often draconian prison sentences on people. Just as important to the argument of public safety, the report points out that prison growth and higher incarceration rates do not reflect a corresponding increase in crime or a surge in America’s overall population.[127]

The impact of Pew’s research on the necessity to address a criminal justice system that had grown out of control cannot be minimized. Being able to succinctly describe the consequences of many years of policies that have led to our country imprisoning 2.3 million people not only got the attention of policy experts, but also elected officials. Harsh punitive policies that many elected officials at the state and federal level created, supported, and built their political careers on began to come under fire as advocates and the public now had concrete evidence of the human and societal costs. Moreover, a Republican President who had begun to understand that because so many people were in prison and would eventually return to their communities across the country, real public safety required those returning home to be given a second chance to be productive citizens and succeed. The political and public mindset began to change regarding those who were incarcerated and the reasons why this country locked so many people up. In addition, the realities of the 2008 recession—that many states were left with few options but to cut the costs of incarceration and that reducing the money spent on jails and prisons did not result in an increase in crime or a decrease in public safety—was critical to states taking the lead on cutting prison populations. The United States had become an incarceration nation before our very eyes and a global leader in a category that it should not have been proud to be in.

In April 2008, Congress passed the bipartisan Second Chance Act, with the support of law enforcement, corrections, criminal justice and civil rights advocates, courts, and behavioral health experts, among others. This historic legislation was signed into law by President George W. Bush.[132] The SCA is the federal government’s investment in approaches to assisting people transitioning back to their communities and to reduce recidivism and corrections costs for state and local governments.[133] The 2008 bill authorized $165 million in federal grants to state, local, and tribal governments and nonprofit organizations to fund services and programs. The law not only improved the lives of people who are casualties of the criminal justice system but also represented a change in the conversation about the criminal justice system and society’s obligations to help formerly incarcerated people.

More than 840 grants have been awarded for reentry programming to nonprofit organizations and government agencies in forty-nine states, the District of Columbia, and U.S. territories as a result of SCA funding since 2009.[134] The National Reentry Resource Center estimates 164,000 people have benefited from services and programming funded by the SCA as of December 2017.[135] Services such as education, housing, employment training and assistance, substance use treatment, mentoring, victims support, and other services have been funded by the SCA to help people successfully leave jails and prisons. SCA grants also focus on improving corrections and supervision practices in order to reduce recidivism.[136]

On November 4, 2008, then-Senator Barack Obama won the election for President of the United States. During his campaign, President Obama considered criminal justice a priority issue. “Since my first campaign, I’ve talked about how, in too many cases, our criminal justice system ends up being a pipeline from underfunded, inadequate schools to overcrowded jails,”[137] Obama said in a speech at the NAACP convention in Philadelphia in 2015.

Also, it became clear in the first year of the Obama Administration that the DOJ, after years of supporting the 100 to one crack and powder cocaine disparity and other “tough on crime” policies, was reevaluating its position on the disparity. During a U.S. House of Representatives Committee on the Judiciary hearing entitled, Unfairness in Federal Cocaine Sentencing: Is It Time to Crack the 100 to 1 Disparity?, Assistant Attorney General Lanny Breuer testified:

Since the United States Sentencing Commission first reported 15 years ago on the differences in sentencing between crack and powder cocaine, a consensus has developed that the federal cocaine sentencing laws should be reassessed. Indeed, over the past 15 years, our understanding of crack and powder cocaine, their effects on the community, and the public safety imperatives surrounding all drug trafficking has evolved. That refined understanding, coupled with the need to ensure fundamental fairness in our sentencing laws, policy, and practice, necessitates a change. We think this change should be addressed in this Congress, and we know that many of you on this Committee have already introduced legislation to address the disparity between crack and powder cocaine. We look forward to working with you and other Members of Congress over the coming months to address this issue.[139]

After the enactment of the FSA 2010, Obama and his Administration continued to exercise a powerful voice in the efforts to reform this country’s criminal justice system and helped to jump start a national conversation about mass incarceration. On August 12, 2013, Attorney General Holder gave a speech to the American Bar Association (ABA) announcing critical reforms to the way the DOJ prosecuted and addressed drug crimes.[140] This speech was historic and long overdue. The remarks were prompted by the recognition that the federal government could not sustain a prison system that since 1980 had grown by almost 800%.[141] In 2012, on the federal, state, and local levels, it cost $80 billion to incarcerate 2.3 million people in this country.[142]

The 2013 Smart on Crime Initiative issued guidance to U.S Attorneys to stop automatically bringing charges that would impose mandatory minimum sentences, except in the most egregious cases.[143] Holder’s willingness to “rethink[] the notion of mandatory minimum sentences for drug-related crimes,” came as a welcome alternative to the status quo, which had been for the DOJ to ask for longer and harsher sentences.[144] Holder’s modification of the DOJ’s charging policies “so that certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels will no longer be charged with offenses that impose draconian mandatory minimum sentences” was a critical step toward creating a fairer and more just federal criminal justice system.[145] The Smart on Crime Initiative resulted in over 5,000 fewer individuals being sentenced to federal drug offense mandatory minimums and the percentage of people convicted of a drug offense carrying a mandatory minimum dropped to just 45.8% in 2015, the lowest proportion since 1993.[146]

Obama continued to seriously focus on criminal justice as an important part of his legacy in 2016 when, during his State of the Union Address, he called on Congress to “work together this year on some bipartisan priorities like criminal justice reform,” a reference to his support for the Sentencing Reform and Corrections Act.[149] Later that year, he gave his first major criminal justice speech in July at the NAACP annual convention to a crowd of more than 3,000, where he made his case for criminal justice reform:[150]

And the studies show that up to a certain point, tougher prosecutors and stiffer sentences for these violent offenders contributed to the decline in violent crime over the last few decades. Although the science also indicates that you get a point of diminishing returns. But it is important for us to recognize that violence in our communities is serious and that historically, in fact, the African American community oftentimes was under-policed rather than over-policed. Folks were very interested in containing the African American community so it couldn’t leave segregated areas, but within those areas there wasn’t enough police presence.

And then, of course, there are costs that can’t be measured in dollars and cents. Because the statistics on who gets incarcerated show that by a wide margin, it disproportionately impacts communities of color. African Americans and Latinos make up 30 percent of our population; they make up 60 percent of our inmates. About one in every 35 African American men, one in every 88 Latino men is serving time right now. Among white men, that number is one in 214.

What is that doing to our communities? What’s that doing to those children? Our nation is being robbed of men and women who could be workers and taxpayers, could be more actively involved in their children’s lives, could be role models, could be community leaders, and right now they’re locked up for a non-violent offense.

The day after the NAACP speech, Oba