first step act safety valve provision free sample

The Act requires the submission of several reports to review the BOP"s implementation of the law and assess the effects of the new risk and needs assessment system.

A “safety valve” is an exception to mandatory minimum sentencing laws. A safety valve allows a judge to sentence a person below the mandatory minimum term if certain conditions are met.  Safety valves can be broad or narrow, applying to many or few crimes (e.g., drug crimes only) or types of offenders (e.g., nonviolent offenders). They do not repeal or eliminate mandatory minimum sentences. However, safety valves save taxpayers money because they allow courts to give shorter, more appropriate prison sentences to offenders who pose less of a public safety threat. This saves our scarce taxpayer dollars and prison beds for those who are most deserving of the mandatory minimum term and present the biggest danger to society.

The Problem:Under current federal law, there is only one safety valve, and it applies only to first-time, nonviolent drug offenders whose cases did not involve guns. FAMM was instrumental in the passage of this safety valve, in 1994. Since then, more than 95,000 nonviolent drug offenders have received fairer sentences because of it, saving taxpayers billions. But it is a very narrow exception: in FY 2015, only 13 percent of all drug offenders qualified for the exception.

Mere presence of even a lawfully purchased and registered gun in a person’s home or car is enough to disqualify a nonviolent drug offender from the safety valve,

Even very minor prior infractions (e.g., careless driving) that resulted in no prison time can disqualify an otherwise worthy low-level drug offender from the safety valve, and

The Solution:Create a broader safety valve that applies to all mandatory minimum sentences, and expand the existing drug safety valve to cover more low-level offenders.

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.

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For reference, these refer to the statutory language of 21 U.S.C. §841(b)(1)(A) and 21 U.S.C. §841(b)(1)(B), which instruct the federal judge on how he or she shall sentence anyone convicted of the manufacture, distribution, or dispensing of a controlled substance (i.e., an illegal drug) or possession with intent to either of these things.

How do you know if you are charged with one of these federal drug crimes that come with a mandatory minimum sentence of either 5-to-40 years (a “b1B” case) or 10-to-life (a “b1A” case)? Read the language of your Indictment. It will specify the statute’s citation.  If you do not have a copy of your Indictment, please feel free to contact my office and we can provide you a copy.

Can’t there be any way to get around that set-in-stone bottom line?  Yes.  There is also a statutory exception which allows the federal judge to dip below that mandatory minimum number of years in some situations.  It is called the “Safety Valve” defense.

The law, 18 U.S.C. § 3553(f), provides for an exception that allows the federal judge some leeway in drug crime convictions where he or she would otherwise be required to follow the mandatory minimum sentencing statute.  This is the Safety Value statute. It states as follows:

(f)Limitation on Applicability of Statutory Minimums in Certain Cases.—Notwithstanding anyother provision of law, in the case of an offense under section 401, 404, or 406 of theControlled Substances Act(21 U.S.C. 841, 844, 846), section 1010 or 1013 of theControlled Substances Import and Export Act(21 U.S.C. 960, 963), or section 70503 or 70506 of title 46, the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission undersection 994 of title 28without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that—

(4)the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of theControlled Substances Act; and

(5)not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

The only way to allow for this exception to be applied in a federal sentencing hearing is for the defense to argue its application and to provide authenticated and admissible support for use of the Safety Valve.

How does the defense do this?  It takes much more than referencing the exception to the general rule itself.  The defense will have to demonstrate the convicted defendant meets the Safety Valve’s five (5) requirements.

For a successful safety valve defense, the defense has to show that the total Criminal History Points are four (4) or less.  If you have a maximum of four Criminal History points, you have met the first criteria for the safety valve.

Note:  prior to the passage of the First Step Act, things were much harsher.  If the defense had even two Criminal History Points, then the accused was ineligible for the safety valve.  The First Step Act increased the number of points, or score, from one to four as the maximum allowed for application of the safety valve.  For more on the First Step Act, see The First Step Act and Texas Criminal Defense in 2019: Part 1 of 2 and The First Step Act and Texas Criminal Defense in 2019: Part 2 of 2.

Looking at the Safety Valve statute ( 18 U.S.C. § 3553(f)), the second step in achieving application of the safety valve defense involves the circumstances of the underlying criminal activity and whether or not it involved violence of threats or violence, or if the defendant possessed a firearm at the time.

It has been my experience that it is pretty common for there to be a firearm of some sort involved in a federal drug crime prosecution.  Here, the impact of Texas being a part of the Fifth Judicial District for the United States Court of Appeals (“Fifth Circuit”) is important.

In the USSG, two points are given (“enhanced”) for possessing a firearm in furtherance of a federal drug trafficking offense.  See,  USSG §2D1.10, entitled Endangering Human Life While Illegally Manufacturing a Controlled Substance; Attempt or Conspiracy.

Meanwhile, the Fifth Circuit has ruled that under the Safety Valve Statute, the standard for the government  is much higher. According to their ruling, in order to be disqualified from application of the safety valve because of possession of a firearm, the defendant has to have been actually in possession of the firearm or in construction possession of it. See, US v. Wilson, 105 F.3d 219 (5th Cir. 1997).

This is the example of the importance of effective criminal defense representation, where research reveals that it is easier to achieve a safety valve defense with a reference to case law.  The Fifth Circuit allows a situation where someone can get two (2) points under the USSG (“enhancement”) and still be eligible for the safety valve defense.

The commentary to § 5C1.2(2) provides that “[c]onsistent with [U.S.S.G.] § 1B1.3 (Relevant Conduct),” the use of the term “defendant” in § 5C1.2(2) “limits the accountability of the defendant to his own conduct and conduct that he aided or abetted, counseled, commanded, induced, procured, or willfully caused.” See U.S.S.G. § 5C1.2, comment. (n.4). This language mirrors § 1B1.3(a)(1)(A). Of import is the fact that this language omits the text of § 1B1.3(a)(1)(B) which provides that “relevant conduct” encompasses acts and omissions undertaken in a “jointly undertaken criminal activity,” e.g. a conspiracy.

Being bound by this commentary, we conclude that in determining a defendant’s eligibility for the safety valve, § 5C1.2(2) allows for consideration of only the defendant’s conduct, not the conduct of his co-conspirators. As it was Wilson’s co-conspirator, and not Wilson himself, who possessed the gun in the conspiracy,the district court erred in concluding that Wilson was ineligible to receive the benefit of § 5C1.2. Because application of § 5C1.2 is mandatory, see U.S.S.G. § 5C1.2 (providing that the court “shall” impose a sentencing without regard to the statutory minimum sentence if the defendant satisfies the provision’s criteria), we vacate Wilson’s sentence and remand for resentencing.

The defense must also be able to prove that the defendant’s role in the underlying criminal offense did not result in the death or bodily injury of someone else to achieve the safety valve defense under  18 U.S.C. § 3553(f).

In drug cases, this can mean more than some type of violent scenario.  The mere type of drug or controlled substance involved can impact the success of this defense.  Sometimes, the drugs themselves are the type that can cause severe harm or death.  Several controlled substances can be lethal.  In a federal drug case, there is a special definition for death resulting from the distribution of a controlled substance.

If the defense can prove with authenticated and admissible evidence that the defendant did not distribute a drug or controlled substance that ended up with someone’s death, or severe bodily injury, then the safety valve defense will be available to them.

Role adjustments happen when someone is alleged to be involved in a conspiracy, and they act in some type of position of responsibility.  They can be a leader, or organizer, or somebody who supervises other people in the operations, all as defined in the USSG.

If you are to achieve the safety valve defense, you cannot receive any “role adjustment” under the Sentencing Guidelines.  This must be established to the court by your defense attorney at the sentencing.

The defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

I realize that for many people, this language brings with it the assumption that the defendant has to be a snitch in order to meet this requirement for the safety valve defense.  This is not true.

With an experienced criminal defense lawyer, what it does mean is that the defendant has a meeting with the authorities with the goal of meeting the Safety Valve Statute requirements and no more.

The attorney can limit the scope of the meeting.  He or she can make sure that law enforcement follows the rules for the meeting.   The meeting is necessary for the defendant to achieve a safety valve defense, so there is no way to avoid a safety valve interview.

I arranged for my client to have his safety valve meeting as well as establishing the other criteria needed for application of the Safety Valve statute.  I was present at the meeting.  There was no cooperation regarding the other defendants, and he did nothing more than the minimum to qualify for the defense.  He was no snitch.

As a result, the safety valve was applied by the federal judge and my client achieved a safety valve application where he was sentenced to 8 years for distribution of meth: well below the 10 years of the mandatory minimums and the USSG calculation in his case of around 14 years.

Sadly, the same day that my client was sentenced, so were several of the co-conspirator defendants.  I was aware that they were also eligible for the safety valve defense.  However, the federal agent at the sentencing hearings that day told me that their lawyers never contact the government for a safety valve meeting.

They were never debriefed, so they could not meet the requirements for application of the safety value statute.  The judge had no choice –they each had to be sentenced to the mandatory minimum sentences under the law.

The primary “smart” sentencing provision of the Crime Bill appears in Title VII under the heading “Applicability of Mandatory Minimum Penalties in Certain Cases.” This provision, commonly known as a safety valve provision, served as a partial response to the Sentencing Commission’s 1991 report documenting the inconsistent and inappropriate application of previously enacted federal mandatory minimum statutes.8 To counteract this misapplication, the safety valve provision authorized sentencing courts to follow applicable sentencing guidelines without regard to more severe statutory mandatory minimum terms for certain less serious drug offenses (e.g., offenses not involving violence or firearms) when a defendant met a series of conditions (e.g., having pleaded guilty and having little criminal history).

The impact of this statutory safety valve grew when the Sentencing Commission in 1995 created a downward adjustment within the drug offense guidelines. The change provided for a two-level reduction in the guideline offense-level calculation for all defendants who met the criteria set out in the bill.9 Consequently, after passage of the 1994 Crime Bill and the guideline amendment it prompted, certain federal defendants who committed lower-level drug offenses could both avoid the application of severe mandatory minimums and benefit from a reduced guideline sentencing range.

These changes have helped shorten the sentences of tens of thousands of people who committed lower-level drug crimes but were subject to harsh drug-offense mandatory minimums enacted in other federal bills. Annual reports from the Sentencing Commission indicate that, in many years, well over 20 percent of federal drug defendants have benefited from the statutory safety valve, allowing them to be sentenced below an otherwise applicable mandatory minimum. In FY 2000, for example, nearly 5,000 of roughly 21,000 federal drug defendants received statutory safety valve relief at sentencing;10 in FY 2010, over 5,500 of roughly 23,000 federal drug defendants secured such relief.11

In addition, all of these defendants and often thousands more benefited each year from the corresponding guideline safety valve provision that serves to lower applicable guideline sentencing ranges. In FY 2010, for example, more than 3,000 additional federal drug defendants benefited from a reduced guideline range.12 Overall, the number of federal drug defendants whose sentences were reduced by these safety valve provisions in the 25 years since the passage of the Crime Bill is now approaching 200,000.

Recent work by Congress has further expanded the impact of the safety valve provision. In 2011, the Sentencing Commission released a report urging Congress to expand the safety valve to people who were convicted of drug offenses and have additional criminal history. The report also suggested that the safety valve should be applicable beyond drug cases.13 Taking partial heed, Congress in the FIRST STEP Act of 201814 expanded the safety valve to make federal drug defendants with additional (though still modest) criminal history eligible for relief from otherwise applicable mandatory minimums.

For years, Congress had attempted to pass criminal justice reform legislation, such as the Sentencing Reform and Corrections Act (SRCA) introduced in 2015 by Senators Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill.). But the SRCA failed to pass in 2016 despite overwhelming bipartisan support, thanks to opposition from Sen. Tom Cotton (R-Ark.) and then-Senator Jeff Sessions (R-Ala.).

That all changed last December when the Senate finally passed, and President Trump signed, the FIRST STEP Act — a modest bill that, despite some initial setbacks, includes key parts of the SRCA. That makes it the first major reduction to federal drug sentences.

The Brennan Center has been advocating for federal sentencing reform for years: Attorneys at the Center’s Justice Program were heavily involved in the fight to pass the SRCA and its predecessor, the Smarter Sentencing Act of 2013.

But the momentum started to pick up in early 2018, when the White House brokered the Prison Reform and Redemption Act, a bipartisan bill aimed at improving conditions in federal prisons. This bill, which was renamed the FIRST STEP Act after some modest improvements were added, still lacked any meaningful sentencing reform component, meaning it would have done little to reduce the prison population. For the White House, that was part of the appeal: Republican leaders believed that SRCA’s sentencing reform provisions made it a nonstarter among conservatives. But because of that, the Brennan Center and a coalition of more than 100 civil rights groups opposed the bill, arguing that the votes were there for sentencing reform — if only Republican leaders would put a bill on the floor. Nonetheless, the FIRST STEP Act passed the House of Representatives by a wide margin of 360 to 59.

That’s where the process stood until late last year. A breakthrough occurred in November, when lawmakers and advocates reached a compromise on the FIRST STEP Act, amending it to incorporate four provisions from the SRCA. The measure garnered the support of the president and both Republicans and Democrats in Congress. Critically, the compromise was blessed by Grassley and Durbin, signaling that the new bill adequately met the goals of their own prior bill.

The FIRST STEP Act initially stalled in the Senate amid opposition from a right-wing minority faction led again by Cotton. And, critically, time was running out in the legislative session, making Republican leaders balk at spending precious floor time on the bill. But another series of compromises quieted opposition from Sen. Ted Cruz (R-Texas) and garnered support for the bill from Sen. John Cornyn (R-Texas), the majority whip, clearing the path for an easy floor vote. After that change and continued pressure from Trump, Grassley, the Koch Brothers, and constituents in Kentucky, Senate Majority Leader Mitch McConnell announced in mid-December that he would bring up the bill for a vote before the end of the year, during the lame-duck Congress.

But one more remained. During the amendment process for the FIRST STEP Act, Cotton and Sen. John Kennedy (R-La.) pushed for a series of “poison pill” amendments that would have unacceptably weakened the bill and split the bipartisan coalition supporting it, just at the moment of passage. But those amendments ultimately failed to materialize in the final bill, which cleared the Senate by an overwhelming 87–12 margin. Not a single Democrat voted against the bill, and Republican opponents of reform were relegated to a small minority. Next, then-House Speaker Paul Ryan (R-Wis.) cleared the way for quick consideration of the bill in the House of Representatives — and sent it to President Trump’s desk just before Christmas. The president signed the bill on December 21.

The FIRST STEP Act is consequential because it includes provisions for meaningful sentencing reform, which would reduce the number and amount of people in prison and is part of the starting point of any serious legislation for criminal justice reform. Sentencing laws played a central role in the rise of mass incarceration in recent decades. The federal prison population, in particular, has risen by more than 700 percent since 1980, and federal prison spending has increased by nearly 600 percent. That growth has disproportionally affected Black, Latino, and Native Americans.

But research continues to show that long prison sentences are often ineffective. One Brennan Center study found that overly harsh sentences have done little to reduce crime. In fact, in some cases, longer prison stays can actually increase the likelihood of people returning to criminal activity. These sentences disproportionately impact people of color and low-income communities.

The FIRST STEP Act shortens mandatory minimum sentences for nonviolent drug offenses. It also eases a federal “three strikes” rule — which currently imposes a life sentence for three or more convictions — and issues a 25-year sentence instead. Most consequentially, it expands the “drug safety-valve,” which would give judges more discretion to deviate from mandatory minimums when sentencing for nonviolent drug offenses.

In an overdue change, the bill also makes the Fair Sentencing Act retroactive. Passed in 2010, the Fair Sentencing Act has helped reduce the sentencing disparity between crack and powder cocaine offenses — a disparity that has hurt racial minorities. The FIRST STEP Act will now apply the Fair Sentencing Act to 3,000 people who were convicted of crack offenses before the law went into effect.

Beyond sentencing reform, the FIRST STEP Act includes provisions that will improve conditions for current prisoners and address several laws that increased racial disparities in the federal prison system. The bill will require federal prisons to offer programs to reduce recidivism; ban the shackling of pregnant women; and expand the cap on “good time credit” — or small sentence reductions based on good behavior — from around 47 to 54 days per year. That “good time” amendment will benefit as many 85 percent of federal prisoners.

The FIRST STEP Act is a critical win in the fight to reduce mass incarceration. While the bill is hardly a panacea, it’s the largest step the federal government has taken to reduce the number of people in federal custody. (The federal government remains the nation’s leading incarcerator, and more people are under the custody of the federal Bureau of Prisons than any single state system.)

The FIRST STEP Act’s overwhelming passage demonstrates that the bipartisan movement to reduce mass incarceration remains strong. And the bill, which retains major parts of SRCA’s sentencing reform provisions, is now known as “Trump’s criminal justice bill.” This means that conservatives seeking to curry favor with the president can openly follow his example or push for even bolder reforms. Finally, this dynamic creates a unique opening for Democrats vying for the White House in 2020 to offer even better solutions to end mass incarceration.

The FIRST STEP Act marks progress for criminal justice reform, but it has some notable shortcomings. It will leave significant mandatory minimum sentences in place. In addition, two of the bill’s key sentencing provisions are not retroactive, which minimizes their overall impact.

“It’s imperative that this first step not be the only step,” said Inimai Chettiar, director of the Brennan Center’s Justice Program. “Now we must focus our efforts on bigger and bolder widespread reforms that will make our system more fair and more humane. We know better, and we must do better.”

The Brennan Center has outlined many additional steps that both federal and state lawmakers can take toward ending mass incarceration in the United States.

One step is to eliminate incarceration for lower-level crimes, such as minor marijuana trafficking and immigration crimes. The default sentences for those crimes should be alternatives to incarceration, such as treatment, community service, or probation. Second, lawmakers should also pass legislation that would make default prison sentences — which are often excessively long — proportional to the specific crimes committed. If Congress and every state enacted this pair of reforms, the national prison population would be safely reduced by 40 percent. Third, Congress can use the power of the purse to encourage these changes. Washington spends a significant amount of money supporting state criminal justice systems: Those dollars could be used to reward policies that reduce rather than entrench mass incarceration.

Ultimately, the FIRST STEP Act is one step in the right direction for reducing mass incarceration in the United States. It has elevated criminal justice reform as a rare space for bipartisan consensus and cooperation in a fractured national political environment. With an awareness of that consensus, we should push for the bigger next steps that will move us toward ending mass incarceration.

The First Step Act (the Act), signed into federal law in December 2018, addresses harsh sentencing for certain drug offenses, disproportionate prison time for crack cocaine offenses, and early release initiatives for good behavior, illness, advanced age, or other compelling reasons. The overall purpose of the Act is to reduce the federal prison population and improve criminal justice outcomes without impairing public safety.

If you have a loved one serving a federal prison sentence, the First Step Act may provide an avenue to a shorter sentence. Our experienced and board certified criminal lawyer at Randall & Stump, Criminal Defense Attorneys, can determine if this federal legislation might apply to your family member’s situation. Call us at (980) 237-4579 to schedule a free initial consultation with our Charlotte trial lawyers.

Criminal justice reform has been a main topic in Congress for years. Previously, there was bipartisan support for the Sentencing Reform and Corrections Act (SRCA), introduced in 2015. Ultimately, SRCA failed. The First Step Act is seen as a more modest criminal reform bill, but it includes some important elements of SRCA. It passed the Senate with an 87-12 majority, quickly cleared the House of Representatives, and was sent to President Trump to sign on December 21, 2018.

The Act is seen as meaningful prison reform for two reasons. It reduces the amount of time new offenders spend in prison. Shorter sentences help reduce mass incarceration. It also provides ways for certain inmates to leave prison earlier than their initial sentences called for.

The Act is Congress’s second stab at addressing lengthy sentences for crimes involving crack cocaine. Previously, the 2010 Fair Sentencing Act lessened sentences but only for crimes committed from the point of enactment going forward. Under Section 404 of the ACT, defendants sentenced before the Fair Sentencing Act of 2010 are eligible for a retroactive sentence reduction. If a prisoner is carrying out a lengthy sentence for crack cocaine, they can work with a lawyer to petition a federal court to reduce their sentence.

In 2000, attorney Samuel Randall successfully used a First Step Act motion in United States of America v. D.M. This case originally went to trial and the defendant was convicted of crack cocaine related charges. At the age of 27, he received a life sentence. After consideration of the First Step Act motion, the defendant’s sentence was reduced to time served and at the age of 47, he walked out of a federal prison. This would have been impossible, but for the First Step Act.

For defendants with prior Controlled substance convictions, The Act lowers the Mandatory Minimum sentences. For example, a defendant facing a ten (10) years mandatory minimum sentence with a Prior conviction could face and increased Mandatory Minimum sentence of not less than 20 years. The Act lowered the mandatory minimum to 15 years instead of 20 years when a defendant has one prior conviction and from mandatory Life to 25 years when a defendant has two or more prior convictions.

Another significant change is the expansion of the “Safe-Valve” provision. Under the old standard the safety valve provision was only available to defendants that do not have more than 1 criminal history point, as determined under the sentencing guidelines. Judges can now go below the mandatory minimum sentence for offenders that do not have—

(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

Additionally, Defendants charged with multiple possession of a firearm in furtherance of a crime of violence or controlled substance in violation of 18 U.S.C. §924c can no longer be sentenced to multiple consecutive sentences. Before the Act, a defendant convicted of multiple 924c violations would receive a first sentence of 5 years followed by a 25 year consecutive sentence for each conviction following the first. A defendant with a second and subsequent use of a firearm in furtherance of drug trafficking or violent offense for conduct during the same criminal incident. This stacking provision created a mandatory minimum sentence of 25 years. Moving forward, defendants only face this mandatory minimum if they have a previous conviction for using a firearm in furtherance of a drug trafficking or violent crime.

Early release is more readily available for prisoners with good conduct credit. Federal prison inmates are eligible for up to 54 days of good conduct credit per year—an increase from the 47 good conduct credits previously granted. The Act also changed how good time credit is calculated. It is based on each year of the imposed sentence and not for each year of time served.

The Act requires the Department of Justice (DOJ) to create a risk and needs assessment system for the Bureau of Prisons (BOP). This system will be used to measure federal prisoners’ risk of recidivism and place them in programs and activities to reduce their risk.

Prisoners who successfully complete these activities can earn credits toward prerelease custody (if eligible), additional visitation, and other benefits. However, inmates with certain convictions cannot earn additional time credits, including those convicted of violent crimes, terrorism, human trafficking, sexual exploitation, repeat felony in possession of a firearm, high-level drug crimes, and certain fraud offenses. Their participation in these programs will go toward other benefits.

Not everyone that applies for relief under the First Step Act are eligible for relief. Our attorneys will give you honest and candid assessment based on the facts of your specific case. We have heard of other law firms taking money from clients to “Review” a case where a defendant is clearly not entitled to relief under the First Step Act. Our Attorney(s) can quickly assess your situation to determine whether or not you ay be entitled to relief.

More than 2,000 people had benefited from the retroactive application of the Fair Sentencing Act (reducing the sentences of those convicted of crack-related crimes).

Although some of the provisions are designed to work automatically, such as sentencing for new offenses and the application of good time credits, unfortunately, the federal criminal justice system is complex. While your loved one may be eligible for a benefit under a First Step Act provision, the matter could fall through bureaucratic cracks unless they have someone to advocate on their behalf.

If a federal inmate wants to file a motion with the court for a sentence reduction under the Act, getting help from a lawyer provides the best chance a success. Because of our excellent reputation in Charlotte’s legal community, when we file a petition on a client’s behalf, the court knows it will be based on sound legal facts and arguments. We can’t guarantee a favorable outcome, but you can count on us to give it everything we have to achieve one.

By engaging our firm, you’ll have attorneys who are widely recognized by their peers and respected legal organizations. We will work with officials to make sure the First Step Act is appropriately applied to your loved one’s case.

The federal legal system can be daunting. When a law is new, such as the First Step Act, even more so. You may have more questions about the Act and whether it applies to your loved one’s situation. We understand and have answers to your questions.