first step act and safety valve supplier

The Federal Safety Valve law permits a sentence in a drug conviction to go below the mandatory drug crime minimums for certain individuals that have a limited prior criminal history. This is a great benefit for those who want a second chance at life without sitting around incarcerated for many years. Prior to the First Step Act, if the defendant had more than one criminal history point, then they were ineligible for safety valve. The First Step Act changed this, now allowing for up to four prior criminal history points in certain circumstances.

The First Step Act now gives safety valve eligibility if: (1) the defendant does not have more than four prior criminal history points, excluding any points incurred from one point offenses; (2) a prior three point offense; and (3) a prior two point violent offense. This change drastically increased the amount of people who can minimize their mandatory sentence liability.

Understanding how safety valve works in light of the First Step Act is extremely important in how to incorporate these new laws into your case strategy. For example, given the increase in eligible defendants, it might be wise to do a plea if you have a favorable judge who will likely sentence to lesser time. Knowing these minute issues is very important and talking to a lawyer who is an experienced federal criminal defense attorney in southeast Michigan is what you should do. We are experienced federal criminal defense attorneys and would love to help you out. Contact us today.

Safety Valve is a provision codified in 18 U.S.C. 3553(f), that applies to non-violent, cooperative defendants with minimal criminal record without a leadership enhancement convicted under several federal criminal statutes. Congress created Safety Valve in order to ensure that low-level participants of drug organizations were not disproportionately punished for their conduct.

Generally applying to drug crimes with a mandatory minimum, Safety Valve has two major benefits for individuals charged with those crimes. Specifically, the two benefits of Safety Valve are:

The first benefit of Safety Valve is the ability to receive a sentence below a mandatory minimum on certain types of drug cases. Some drug charges have a mandatory minimum i.e. 5 years, 10 years. That means even if the person’s guidelines are lower than the mandatory minimum and the judge wants the sentence the individual below the mandatory minimum, the judge is legally unable to do so because that would be an illegal plea. If the Court determines that the individual meets the requirements of Safety Valve under 18 U.S.C. § 3553(f), the Judge is able to sentence the individual to a term that is less than the mandatory minimum.

The second benefit of safety valve is a two-point reduction in total offense conduct. Since 2009, federal sentencing guidelines are discretionary rather than binding. With that being said, federal sentencing guidelines still act as the Judge’s starting point in determining what the appropriate sentence on a case is. The higher the total offense score, the higher is the corresponding suggested sentencing range. A two-level difference can make a difference in months if not years of the sentence. Each point counts toward ensuring the lowest possible sentence.

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 the Controlled Substance Act, and

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.

In order to establish eligibility for Safety Valve, the Defendant has the burden of proof to establish that s/he meets the five requirements by a preponderance of evidence. That is to say, the Defendant must prove by 51% that the Defendant meets all the requirements of eligibility. These five Safety Valve Requirements are explained in greater detail below.

The first requirement of Safety Valve is that the individual has a limited criminal record. The U.S. Sentencing Guidelines assign a certain number of points to prior convictions. The more serious the crime, and the longer the sentence, the more corresponding criminal history points it carries.

The second requirement of Safety Valve is that the individual did not use violence, credible threats of violence or possess a firearm or other dangerous weapon. Importantly, an individual can be disqualified from Safety Valve based on the conduct of co-conspirators, if the Defendant “aided or abetted, counseled, commanded, induced, procured, or willfully caused” the co-conspirator’s violence or possession of a firearm or another dangerous weapon. Thus, use of violence or possession of a weapon by a co-defendant does not disqualify someone from Safety Valve, unless the individual somehow helped or instructed the co-defendant to engage in that conduct.

To be disqualified from Safety Valve, possession of a firearm or another dangerous weapon can either be actual possession or constructive possession. Actual possession involves the individual having the gun in their hand or on their person. Constructive possession means that the individual has control over the place or area where the gun was located. Importantly, the possession of a firearm or a dangerous weapon needs to be related to the drug crime, as the statute requires possession of same “in connection with the offense.” However, “in connection with the offense” is a relatively loose standard, in that presence of the firearm or dangerous instrument in the same location as the drugs is enough to disqualify someone from Safety Valve.

The third requirement of Safety Valve is that the offense conduct did not result in death or serious bodily injury to any person. Serious bodily injury for the purposes of Safety Valve is defined as “injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation.”

The fourth requirement of Safety Valve is that the Defendant was not an organizer, leader, manager or supervisor of others in the office. An individual will be disqualified from safety valve if s/he exercised any supervisory power or control over another participant. Individuals who receive an enhancement for an aggravating role under §3B1.1 are not eligible for safety valve. Similarly, in order to be eligible for Safety Valve, an individual does not need to receive a minor participant role reduction.

Isolated instances of asking someone else for help do not result in the aggravating role enhancement. As the Court of Appeals for the Second Circuit has held in United States v. McGregor, 11 F.3d 1133, 1139 (2d Cir. 1993), aggravated role enhancement did not apply to “one isolated instance of a drug dealer husband asking his wife to assist him in a drug transaction.” Similarly, in United States v. Figueroa, 682 F.3d 694, 697-98 (7th Cir. 2012); the Seventh Circuit declined to apply a leadership enhancement for a one-time request from one drug dealer to another to cover him on a sale.

The fifth and final Safety Valve requirement is that the individual meet with the U.S. Attorney’s Office for a Safety Valve proffer. A Safety Valve proffer is different from a regular proffer in that in a safety valve proffer, the individual is only required to truthfully proffer about his or her own conduct.

In contrast, in a non-safety valve proffer, the individual is required to truthfully provide information about his or her own criminal conduct, as well as the criminal conduct of others. In order to meet this requirement, the individual must provide a full and complete disclosure about their own criminal conduct, not just the allegations that are charged in the offense. There is no required time as to when someone goes in for a safety valve proffer, except that it must take place sometime “before sentencing.”

Not all charges with mandatory minimums qualify for Safety Valve relief. Rather, the criminal charge must be enumerated in 18 U.S.C. 3553(f). The following criminal charges are eligible for Safety Valve:

Under the First Step Act, the eligibility for Safety Valve relief was expanded to more individuals. Specifically, The First Step Act, P.L. 115-391, broadened the safety valve to provide relief for:

Prior to the enactment of the First Step Act, individuals could have a maximum of 1 criminal history point in order to be eligible for Safety Valve relief. Similarly, individuals who were prosecuted for possession of drugs aboard a vessel under the Maritime Drug Enforcement Act, were not eligible for Safety Valve relief. After the passing of the First Step Act, individuals prosecuted under Maritime Drug Enforcement Act, specifically 46 U.S.C. 70503 or 46 U.S.C. 70506 are eligible for Safety Valve relief.

Safety Valve is an important component of plea negotiations on federal drug cases and should always be explored by experienced federal counsel. If you have questions regarding your Safety Valve eligibility, please contact us today to schedule your consultation.

In December 2018, President Trump signed into law the First Step Act, which mostly involves prison reform, but also includes some sentencing reform provisions.

The key provision of the First Step Act that relates to sentencing reform concerns the “safety valve” provision of the federal drug trafficking laws.  The safety valve allows a court to sentence a person below the mandatory minimum sentence for the crime, and to reduce the person’s offense level under the Federal Sentencing Guidelines by two points.

The First Step Act increases the availability of the safety valve by making it easier to meet the first requirement—little prior criminal history.  Before the First Step Act, a person could have no more than one criminal history point. This generally means no more than one prior conviction in the last ten years for which the person received either probation or less than 60 days of prison time.

Section 402 of the First Step Act changes this.  Now, a person is eligible for the safety valve if, in addition to meeting requirements 2-5 above, the defendant does not have:

John Helms has been a trial lawyer for more than 20 years and is a former federal prosecutor who never lost a trial or appeal. He is the founder of the Law Office of John M. Helms in Dallas, Texas, where he has handled both civil and criminal cases and is skilled at helping clients facing overlapping civil and criminal issues.

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In addition to making retroactive the Fair Sentencing Act’s correction of the disparity between sentences for crack and powder cocaine related offenses, a second hallmark of the FIRST STEP Act is the broadening of the safety valve provision, which dispenses with mandatory minium sentences under certain circumstances. While the Act does not provide for retroactivity of this provision, the United States Sentencing Commission estimates that this change will impact more than 2,000 defendants per year in the future. See Sentence and Prison Impact Estimate Summary (last viewed January 27, 2019).

The safety valve, codified at 18 U.S.C. § 3553(f) and also found in section 5C1.2 of the United States Sentencing Guidelines, permits judges to dispense with statutorily imposed mandatory minimum sentences with regard to violations of 21 U.S.C. §§ 841, 844, 846, 960 and 963, which involve the possession, manufacture, distribution, export and importation of controlled substances. Previously, in order to sentence a defendant without regard to the mandatory minimum sentences for these offenses, the court was required to find the following: 1) the defendant does not have more than one criminal history point; 2) the defendant did not use violence, threats, or possess a dangerous weapon or firearm in connection with the offense; 3) the offense did not result in death or serious bodily injury to any person; 4) the defendant was not an organizer, leader, manager or supervisor in the offense, and was not engaged in a continuing criminal enterprise; and 5) the defendant truthfully provided information to the government concerning the offense. See 18 U.S.C. § 3553(f)(1)-(5).

The FIRST STEP Act amends the aforementioned conditions by permitting judges to utilize the safety valve provision even where the defendant has up to four criminal history points, excluding all points for one-point offenses, which are generally minor crimes. However, defendants with prior three-point felony convictions and two-point violent felony convictions are still not permitted to utilize the safety valve. Additionally, the FIRST STEP Act adds 46 U.S.C. §§ 70503 and 70506, which involve the possession, distribution and manufacturing of controlled substances in international waters, to the list of offenses which are covered by the safety valve.

Hiring a top New York criminal defense attorney to defend you in any federal criminal prosecution or assist with any questions concerning the applicability of the FIRST STEP Act is crucial and will ensure that every viable defense or avenue for a sentencing reduction is explored and utilized on your behalf. Lawyers at the Law Offices of Jeffrey Lichtman have successfully handled countless federal cases, exploiting holes in the prosecution’s evidence to achieve the best possible result for our clients. Contact us today at (212) 581-1001 for a free consultation.

A three-judge panel for the US Court of Appeals for the Eleventh Circuit initially agreed with the government’s interpretation of the First Step Act’s so-called safety valve provision. But in a highly fractured opinion issued Tuesday, the full court reversed, affirming Julian Garcon’s reduced sentence.

Over the years I have been retained by a few criminal defense clients after they had bad experience with a prior lawyer. The reasons for switching defense attorneys in midstream vary: sometimes it is concern over the lawyer’s competence, or concern that their case is not getting the attention it deserves, or even that they just don’t see eye to eye with their lawyer. One of the most common, and disturbing reasons though is that the client feels that their prior attorney ripped them off. These complaints generally involve “flat-fee” retainer agreements in which a lawyer and a client agree upon a fixed sum of money for the entire defense representation no matter whether it goes to trial or ends in a plea deal. I see cases all the time where a lawyer accepts a major felony case for a ridiculously low flat-fee just to land the client. Then, when it becomes obvious the case will require a lot of work, the attorney hits the client up for more money. I have even seen cases where the attorney threatens to withdraw from the case if the client does not come up with the additional funds. I call these “pump and dumps:” The lawyer pumps the client for a quick cash infusion and if the client balks, the lawyer tries to dump the client or the retainer agreement. When this happens, the client rightfully becomes upset and the situation quickly becomes untenable. What should a client do? They have (or should have) a written and enforceable fee agreement with the attorney. Then again, who wants a lawyer defending them from serious criminal charges when they claim they are being paid for their work? Defending clients charged with serious or complex felony cases in state and federal courts takes a great amount of work on the part of the criminal defense attorney, the client, and the defense team. These cases are expensive. To get an idea of how expensive, ask the attorney what their normal hourly fee is. The ask them how many hours they would expect to work in a case such as yours. What if it is a plea? What if it is a trial? If the lawyer’s retainer agreement sounds too good to be true, it probably is. The best thing a person can do when selecting a criminal defense attorney is to deal very clearly with this issue up-front. Hourly fee agreements will avoid the problem altogether. The attorney is paid only for the work performed. When negotiating an hourly fee agreement with a criminal defense attorney, be sure to ask the attorney to give a good faith estimate of the number of hours she or he thinks the case will consume depending on various outcomes like a plea agreement or a trial. If you are negotiating a flat-flee agreement make sure that both parties understand that regardless of how many hours the attorney must spend on the case, the fee agreement spells out the total amount to be paid in attorney fees. To protect both parties, flat fee agreements can be modified to suit the needs of each case. For example: The amount of the fee could be staggered to depend on at what stage of the proceedings the case is resolved: Pre-Indictment, with a plea agreement, after a trial etc. Regardless of the attorney and the fee structure you choose. I always recommend the potential client talk to as many knowledgeable and experienced criminal defense attorneys as the situation allows before settling on their pick. This will give the prospective client some idea of comparable fee agreements and rates. It will also allow both parties to get to know each other a little bit before signing up to work so closely together over so serious a matter. Switching attorneys in the middle of the case is sometimes unavoidable, but it is a situation best-avoided if possible.

Luna, Erik. “Mandatory Minimums.” Reforming Criminal Justice: Punishment, Incarceration, and Release, vol. 4, 2017, pp. 117-133.https://law.asu.edu/sites/default/files/pdf/academy_for_justice/7_Criminal_Justice_Reform_Vol_4_Mandatory-Minimums.pdf

“… consequentialist theories are forward-looking in their focus on the future consequences of punishment. The primary consequentialist theory—utilitarianism—imposes criminal penalties only to the extent that social benefits outweigh the costs of punishment. In particular, the imposition of criminal sanctions might: discourage the offender from committing future crimes (specific deterrence); dissuade others from committing future crimes (general deterrence); or disable the particular offender from committing future crimes (incapacitation). According to their advocates, mandatory minimums both deter and incapacitate offenders. With respect to deterrence, mandatory minimum sentences are sometimes justified as sending an unmistakable message to criminals. Some offenses require certain minimum punishments, advocates claim. They argue that because of the wide diversity of views on the appropriate level of punishment for offenders, legislators—not judges—are in the best position to make sentencing determinations. The certain, predictable, and harsh sentences forewarn offenders of the consequences of their behavior upon apprehension and conviction. Proponents contend that mandatory minimums also incapacitate the most incorrigible criminals and thereby prevent them from committing crime. None of these claims receives robust empirical support, however, as most researchers have rejected crime-control arguments for mandatory sentencing laws. There is little evidence that lengthy prison terms serve specific deterrence. Rather, imprisonment either has no effect on an inmate’s future offending or perhaps even increases recidivism. …

“As for general deterrence, research has largely failed to show that mandatory minimums decrease the commission of crime, and some studies suggest that such punishment schemes may even generate more serious crime. Regardless, any deterrence-based reduction in crime is far outweighed by the increased costs of incarceration from long mandatory sentences. …

“Mandatory minimum sentences are also unlikely to reduce crime by incapacitation, at least given the overbreadth of such laws and their failure to focus on those most likely to recidivate. Among other things, offenders typically age out of the criminal lifestyle, usually in their 30s, meaning that long mandatory sentences may require the continued incarceration of individuals who would not be engaged in crime. In such cases, the extra years of imprisonment will not incapacitate otherwise active criminals and thus will not result in reduced crime. … Moreover, certain offenses subject to mandatory minimums can draw upon a large supply of potential participants. With drug organizations, for instance, an arrested dealer or courier may be quickly replaced by another, eliminating any crime-reduction benefit. More generally, any incapacitation-based effect from mandatory minimums was likely achieved years ago, due to the diminishing marginal returns of locking more people up in an age of mass incarceration. Based on the foregoing arguments and others, most scholars have rejected crime-control arguments for mandatory sentencing laws. By virtually all measures, there is no reason to believe that mandatory minimums have any meaningful impact on crime rates.”

National Research Council. The Growth of Incarceration in the United States: Exploring Causes and Consequences. The National Academies Press, 2014.https://doi.org/10.17226/18613

“The conclusion that increasing already long sentences has no material deterrent effect also has implications for mandatory minimum sentencing. Mandatory minimum sentence statutes have two distinct properties. One is that they typically increase already long sentences, which we have concluded is not an effective deterrent. Second, by mandating incarceration, they also increase the certainty of imprisonment given conviction. Because, as discussed earlier, the certainty of conviction even following commission of a felony is typically small, the effect of mandatory minimum sentencing on certainty of punishment is greatly diminished. Furthermore, as discussed at length by Nagin (2013a, 2013b), all of the evidence on the deterrent effect of certainty of punishment pertains to the deterrent effect of the certainty of apprehension, not to the certainty of postarrest outcomes (including certainty of imprisonment given conviction). Thus, there is no evidence one way or the other on the deterrent effect of the second distinguishing characteristic of mandatory minimum sentencing (Nagin, 2013a, 2013b).”

Tonry, Michael. “Fifty Years of American Sentencing Reform — Nine Lessons.” 7 Dec. 2018, Crime and Justice—A Review of Research. Forthcoming. Available at SSRN:https://ssrn.com/abstract=3297777

“Mandatory Sentences. Mandatory sentencing laws should be repealed, and no new ones enacted; they produce countless injustices, encourage cynical circumventions, and seldom achieve demonstrable reductions in crime.

“Mandatory sentencing laws are a fundamentally bad idea. From eighteenth century England, when pickpockets worked the crowds at hangings of pickpockets and juries refused to convict people of offenses subject to severe punishments, to twenty-first century America, the evidence has been clear. Mandatory minimum sentences have few if any discernible deterrent effects and, because of their rigidity, result in unjustly harsh punishments in many cases and willful circumvention by prosecutors, judges, and juries in others. In our time, when plea bargaining is ubiquitous, mandatories are routinely used to coerce guilty pleas, sometimes from innocent people (Johnson 2019).

“In the 1950s, the American Bar Foundation undertook the most extensive research ever conducted on day-to-day operations of American criminal courts. They learned that prosecutors applied mandatories selectively and that judges and juries refused to convict when penalties seemed too severe. Frank Remington, who directed the project, observed in 1969, ‘Legislative prescription of a high mandatory sentence for certain offenders is likely to result in a reduction in charges at the prosecution stage, or if this is not done, by a refusal of the judge to convict at the adjudication stage. The issue ... thus is not solely whether certain offenders should be dealt with severely, but also how the criminal justice system will accommodate to the legislative charge.’ A large number of sophisticated case processing studies in the 1970s, 1980s, and 1990s reached the same conclusion.

‘’The evidence on deterrent effects is equally damning. Countless authoritative surveys, in many countries, have concluded that mandatories’ deterrent effects are modest at best. National Academy of Sciences reports in 1978 and 2014 serve as contemporary bookends. The 1978 Panel on Research on Deterrent and Incapacitative Effects concluded, ‘In summary...we cannot assert that the evidence warrants an affirmative conclusion regarding deterrence’ (Blumstein, Cohen, and Nagin 1978, p. 7). The 2014 Committee on the Causes and Consequences of High Rates of Incarceration similarly observed:

‘Knowledge about mandatory minimum sentences has changed remarkably little in the past 30 years. Their ostensible primary rationale is deterrence. The overwhelming weight of the evidence, however, shows that they have few if any deterrent effects … Existing knowledge is too fragmentary [and] estimated effects are so small or contingent on particular circumstances as to have no practical relevance for policy making. (Travis, Western, and Redburn 2014, p. 83)’

“Contemporary research thus confirms longstanding cautions against enactment of mandatory sentencing laws. Their use to coerce guilty pleas is new and distinctive to our times. Even innocent defendants are sorely tempted to plead guilty and accept probation or a short prison term rather than risk a mandatory 10- or 20-year sentence. The late Harvard Law School professor William Stuntz observed that ‘outside the plea-bargaining process’ prosecutors’ threats to file charges subject to mandatories ‘would be deemed extortionate’ (2011, p. 260). Federal Court of Appeals judge Gerald Lynch similarly observed that prosecutors’ power to threaten mandatories has enabled them to displace judges from their traditional role: It is ‘the prosecutor who decides what sentence the defendant should be given in exchange for his plea’ (2003, p. 1404). American sentencing has become more severe in recent decades; prosecutors bear much of the responsibility (Johnson 2019).

“This is a uniquely American problem. Nothing similar occurs in any other developed country. It has two causes. One is that American prosecutors are elected or appointed by elected politicians; elsewhere they are nonpartisan career civil servants. The second is that, under US constitutional law, prosecutors’ day-to-day decisions are almost never subject to judicial review. American prosecutors have the same interests and motives, however, as other elected politicians to curry favor with the electorate and the media. In recent ‘tough on crime’ decades, prosecutors have favored severe punishments.

“This is not how things are supposed to work. Until mandatory sentencing laws proliferated, prosecutors filed charges and presented evidence, judges with or without juries decided whether the evidence justified a conviction, and judges imposed sentences. This division of labor made sense, and remains the norm in other Western countries. …

“Every authoritative law reform organization that has examined American sentencing in the last 50 years has proposed elimination of mandatory minimum sentence laws. These included, in earlier times, the 1967 President’s Commission on Law Enforcement and Administration of Justice, the 1971 National Commission on Reform of Federal Laws, the 1973 National Advisory Commission on Criminal Justice Standards and Goals, the 1979 Model Sentencing and Corrections Act proposed by the Uniform Law Commissioners, and the American Bar Association’s 1994 Sentencing Standards. The American Law Institute’s Model Penal Code—Sentencing offered the same recommendation in 2017 (Reitz and Klingele 2019).”

United States Sentencing Commission. Special Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System. August 1991.https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/mandatory-minimum-penalties/1991_Mand_Min_Report.pdf

“Accordingly, we conclude that the most efficient and effective way for Congress to exercise its powers to direct sentencing policy is through the established process of sentencing guidelines, permitting the sophistication of the guidelines structure to work, rather than through mandatory minimums. There is every reason to expect that by so doing, Congress can achieve the purposes of mandatory minimums while not compromising other goals to which it is simultaneously committed.”

Caulkins, Jonathan. “Are Mandatory Minimum Drug Sentences Cost-Effective?” Rand Corporation. 1997,https://www.rand.org/pubs/research_briefs/RB6003.html

“Mandatory minimum sentences for cocaine consumption or drug-related crime are not justifiable on the basis of cost-effectiveness. Mandatory minimums reduce cocaine consumption less for every million taxpayer dollars spent than allocation of the same amount on enforcement under the previous sentencing regime. Both enforcement approaches reduce drug consumption less, for every million dollars spent, than putting heavy users through treatment programs. Mandatory minimums are also less cost-effective than either alternative at reducing cocaine-related crime, primarily because of the high cost of incarceration.”

Starr, Sonja, and M. Marit Rehavi. “Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the Effects of Booker.” Yale Law Journal, vol. 123, no. 1, October 2013.https://www.yalelawjournal.org/article/mandatory-sentencing-and-racial-disparity-assessing-the-role-of-prosecutors-and-the-effects-of-booker

Considerable empirical research has shown that racial disparities in sentencing are pervasive: “one of every nine black men between the ages of twenty and thirty-four is behind bars.” In United States v. Booker, the U.S. Supreme Court rendered the mandatory guidelines merely advisory. This study, looking not just at judicial opinions but also at plea agreements, charging decisions, and other factors contributing to sentencing, shows that this racial disparity has actually not increased since more judicial discretion was permitted. Instead, the black-white gap in sentencing “appears to stem largely from prosecutors’ charging choices, especially to charge defendants with ‘mandatory minimum’ offenses.” Removing these minimums as advisory guidelines would help shift toward greater racial equalization in the sentencing arena.

“Despite substantial expenditures on longer prison terms for drug offenders, taxpayers have not realized a strong public safety return. The self-reported use of illegal drugs has increased over the long term as drug prices have fallen and purity has risen. Federal sentencing laws that were designed with serious traffickers in mind have resulted in lengthy imprisonment of offenders who played relatively minor roles. These laws also have failed to reduce recidivism. Nearly a third of the drug offenders who leave federal prison and are placed on community supervision commit new crimes or violate the conditions of their release—a rate that has not changed substantially in decades.”

“The Pew Charitable Trusts examined publicly available 2014 data from federal and state law enforcement, corrections, and health agencies. The analysis found no statistically significant relationship between state drug imprisonment rates and three indicators of state drug problems: self-reported drug use, drug overdose deaths, and drug arrests. The findings … reinforce a large body of prior research that cast doubt on the theory that stiffer prison terms deter drug misuse, distribution, and other drug-law violations.”

On behalf of the American Civil Liberties Union (ACLU) and The Leadership Conference on Civil and Human Rights, we write to urge you to vote YES on S. 756, the FIRST STEP Act. This legislation is a next step towards desperately needed federal criminal justice reform, but for all its benefits, much more needs to be done. The inclusion of concrete sentencing reforms in the new and improved Senate version of the FIRST STEP Act is a modest improvement, but many people will be left in prison to serve long draconian sentences because some provisions of the legislation are not retroactive. The revised FIRST STEP Act, however, is not without problems. The bill continues to exclude individuals from benefiting from some provisions based solely on their prior offenses, namely citizenship and immigration status, as well as certain prior drug convictions and their “risk score” as determined by a discriminatory risk assessment system. While these concerns remain a priority for our organizations and we will advocate for improvements in the future, ultimately the improvements to the federal sentencing scheme will have a net positive impact on the lives of some of the people harmed by our broken justice system and we urge you to vote YES on S. 756. The ACLU and The Leadership Conference will include your votes on our updated voting scorecards for the 115th Congress.

Over the past four to five decades, U.S. criminal justice policies have driven an increase in incarceration rates that is unprecedented in this country and unmatched elsewhere in the world. Our country has over 20 percent[i] of the world’s incarcerated individuals, despite having less than five percent[ii] of the world’s population. In 2015, the U.S. Justice Department’s Bureau of Justice Statistics estimated that 6.7 million persons[iii] were involved in the adult correctional systems in this country and almost 2.2 million[iv] were in prisons or jail. More than 180,000[v]of these people are in federal prison, almost half of whom are there for drug offenses.[vi]

The most recent data indicate that the United States spends almost $81 billion per year[vii] on corrections systems – prisons, jails, parole, and probation – and this figure does not include the costs of policing and court systems. The cost of the federal Bureau of Prisons (BOP) accounts for nearly a third of the Department of Justice’s discretionary budget. Federal incarceration has become one of our nation’s biggest expenditures, swallowing the budget of federal law enforcement.[viii] It costs more than $36,000 a year to house just one federal inmate, almost four times the average yearly cost of tuition at a public university.[ix]

While the dollar amounts are astounding, the toll that our U.S. criminal justice policies have taken on black and brown communities across the nation goes far beyond the enormous amount of money that is spent. This country’s extraordinary incarceration rates impose much greater costs than simply the fiscal expenditures necessary to incarcerate over 20 percent of the world’s prisoners. The true costs of this country’s addiction to incarceration must be measured in human lives and particularly the generations of young black and Latino men who serve long prison sentences and are lost to their families and communities. The Senate version of the FIRST STEP Act makes some modest improvements to the current federal system.

I. Sentencing Reform Changes to House-passed FIRST STEP Act–Sentencing reform is the key to slowing down the flow of people going into our prisons. This makes sentencing reform pivotal to addressing mass incarceration, prison overcrowding, and the exorbitant costs of incarceration. As a result of our coalition’s advocacy, the new FIRST STEP Act added some important sentencing reform provisions from SRCA, which will aid us in tackling these issues on the federal level.[x] These important changes in federal law will result in fewer people being subjected to harsh mandatory minimums.

Expands the Existing Safety Valve. The revised bill expands eligibility for the existing safety valve under 18 U.S.C 3553(f)[xi] from one to four criminal history points if a person does not have prior 2-point convictions for crimes of violence or drug trafficking offenses and prior 3-point convictions. Under the expanded safety valve, judges will have discretion to make a person eligible for the safety valve in cases where the seriousness of his or her criminal history is over-represented, or it is unlikely he or she would commit other crimes. This crucial expansion of the safety valve will reduce sentences for an estimated 2,100 people per year.[xii]

Retroactive Application of Fair Sentencing Act (FSA). The new version of FIRST STEP Act would retroactively apply the statutory changes of the Fair Sentencing Act of 2010 (FSA), which reduced the disparity in sentence lengths between crack and powder cocaine. This change in the law will allow people who were sentenced under the harsh and discriminatory 100 to 1 crack to powder cocaine ratio to be resentenced under the 2010 law.[xiii] This long overdue improvement would allow over 2,600 people the chance to be resentenced.[xiv]

Reforms the Unfair Two-Strikes and Three-Strikes Laws. The new version of FIRST STEP would reduce the impact of certain mandatory minimums. It would reduce the mandatory life sentence for a third drug felony to a mandatory minimum sentence of 25 years and reduce the 20-year mandatory minimum for a second drug felony to 15 years.

Eliminates 924(c) “stacking”.The revised bill would also amend 18 U.S.C. 924(c), which currently allows “stacking,” or consecutive sentences for gun charges stemming from a single incident committed during a drug crime or a crime of violence. The legislation would require a prior gun conviction to be final before a person could be subject to an enhanced sentence for possession of a firearm. This provision in federal law has resulted in very long and unjust sentences.[xv]

II. Prison Reform Changes to House-passed FIRST STEP Act, H.R. 3356–The revised bill also made some strides in improving some of the problematic prison reform provisions. The new bill strengthened oversight over the new risk assessment system, limited the discretion of the attorney general, and increased funding for prison programming, among other things. The bill now does the following:

Establishes an Independent Review Committee. The revised bill establishes an Independent Review Committee (IRC) of outside experts to assist the Attorney General in the development of the risk and needs assessment system. The National Institute of Justice would select a nonpartisan, nonprofit organization with expertise in risk and needs assessments to host the IRC.  This added guardrail will help to ensure the risk and needs assessment system is evidence-based and potentially help to mitigate any harms.

Permits Early Community Release and Loosens Restrictions on Home Confinement.The House-passed FIRST STEP Act limited the use of earned credits to time in prerelease custody (halfway house or home confinement). The revised bill would expand the use of earned credits to supervised release in the community. The bill also would permit individuals in home confinement to participate in family-related activities that facilitate the prisoner’s successful reentry.

Limits Discretion to Deny Early Release.The revised bill strikes language giving the BOP Director and/or the prison warden broad discretion to deny release to individuals who meet all eligibility criteria.

Mandates BOP Capacity. The revised bill mandates that BOP ensure there is sufficient prerelease custody capacity to accommodate all eligible prisoners. This helps to address concerns that individuals would be unable to use their earned credits because of waiting lists for prerelease custody.

Reauthorizes Second Chance Act. The revised bill reauthorizes the Second Chance Act, which provides federal funding for drug treatment, vocational training, and other reentry and recidivism programming.

While these revisions to the bill were critical to garnering our support, we must acknowledge that some of the more concerning aspects of the House-passed version of the FIRST STEP Act remain.

III. Outstanding Concerns Regarding the FIRST STEP Act–The bill continues to exclude too many people from earning time credits, including those convicted of immigration-related offenses. It does not retroactively apply its sentencing reform provisions to people convicted of anything other than crack convictions, continues to allow for-profit companies to benefit off of incarceration, fails to address parole for juveniles serving life sentences in federal prison, and expands electronic monitoring.

Fails to Include Retroactivity for Enhanced Mandatory Minimum Sentences for Prior Drug Offenses &. 924(c) “stacking.”The bill does not include retroactivity for its sentencing reforms besides the long-awaited retroactivity for the Fair Sentencing Act of 2010. This minimizes the overall impact substantially. Retroactivity is a vital part of any meaningful sentencing reform. Not only does it ensure that the changes we make to our criminal justice system benefit the people most impacted by it, but it’s also one of the essential policy changes to reduce mass incarceration. The federal prison population has fallen by over 38,000[xvi] since 2013 thanks in large part to retroactive application of sentencing guidelines approved by the U.S. Sentencing Commission.[xvii] More than 3,000 people will be left in prison without retroactive application of the “three strikes” law and the change to the 924 (c) provisions in the FIRST STEP Act.[xviii]

Excludes Too Many Federal Prisoners from New Earned Time Credits. The bill continues to exclude many federal prisoners from earning time credits and excludes many federal prisoners from being able to “cash in” the credits they earn. The long list of exclusions in the bill sweep in, for example, those convicted of certain immigration offenses and drug offenses.[xix] Because immigration and drug offenses account for 53.3 percent of the total federal prison population, many people could be excluded from utilizing the time credits they earned after completing programming.[xx] The continued exclusion of immigrants from the many benefits of the bill simply based on immigration status is deeply troubling. The Senate version of FIRST STEP maintains a categorical exclusion of people convicted of certain immigration offenses from earning time credits under the bill. The new version of the bill also bars individuals from using the time credits they have earned if they have a final order of removal. More than 12,000 people are currently in federal prison for immigration offenses and are disproportionately people of color.[xxi] Thus, a very large number of people in federal prison would not reap the benefits proposed in this bill and a disproportionate number of those excluded would be people of color. Denying early-release credits to certain people also reduces their incentive to complete the rehabilitative programs and contradicts the goal of increasing public safety. Any reforms enacted by Congress should impact a significant number of people in federal prison and reduce racial disparities or they will have little effect on the fiscal and human costs of incarceration.

Allows Private Prison Companies to Profit. The bill also maintains concerning provisions that could privatize government functions and allow the Attorney General excessive discretion. FIRST STEP provides that in order to expand programming, BOP shall enter into partnerships with private organizations and companies under policies developed by the Attorney General, “subject to appropriations.” This could result in the further privatization of what should be public functions and would allow private entities to unduly profit from incarceration.

Relies on Discriminatory Risk Assessment System. The bill continues to give the Bureau of Prisons and the Attorney General too much discretion in the design, implementation, and review of the tool, including the ability for the BOP to use an existing tool. It also continues to misuse terminology (i.e. recidivism risk vs. risk categories), inappropriately ties risk categories to earned time credits, and fails to properly safeguard against unwarranted racial disparities.

Fails to Include Parole for Juveniles, Sealing and Expungement. Under SRCA, judges would have discretion to reduce juvenile life without parole sentences after 20 years. It would also permit some juveniles to seal or expunge non-violent convictions from their record. The FIRST STEP Act does not address these important bipartisan provisions.

Bringing fairness and dignity to our justice system is one of the most important civil and human rights issues of our time. The revised version of the FIRST STEP Act is a modest, but important move towards achieving some meaningful reform to the criminal legal system. While the bill continues to have its problems, and we will fight to address those in the future, it does include concrete sentencing reforms that would impact people’s lives. For these reasons, we urge you to vote YES on S. 756.

Ultimately, the First Step Act is not the end– it is just the next in a series of efforts over the past 10 years to achieve important federal criminal justice reform. Congress must take many more steps to undo the harms of the tough on crime policies of the 80’s and 90’s – to create a system that is just and equitable, significantly reduces the number of people unnecessarily entering the system, eliminates racial disparities, and creates opportunities for second chances.

If you have any additional questions, please feel free to contact Jesselyn McCurdy, Deputy Director, ACLU Washington Legislative Office, at [email protected] or (202) 675-2307 or Sakira Cook, Director, Justice Program, The Leadership Conference, at [email protected] or (202) 263-2894.

[vii] See Tracy Kyckelhahn, Bureau of Justice Statistics, Justice Expenditure and Employment Extracts, 2012,Preliminary Tbl. 1 (2015), https://www.bjs.gov/index.cfm?ty=pbdetail&iid=5239 (showing FY 2012 state and federal corrections expenditure was $80,791,046,000).

[viii] Nancy LaVigne & Julie Samuels, The Urban Institute, The Growth & Increasing Cost of the Federal Prison System: Drivers and Potential Solutionsat 1-2 (Dec. 2012) [hereinafter LaVigne Urban Institute Report], http://www.urban.org/uploadedpdf/412693-the-growth-and-increasing-cost-of-the-federal-prison-system.pdf.

[x] LaVigne, Urban Institute Report at 5; Nathan James, Cong. Research Serv., R42937, The Federal Prison Population Buildup: Overview, Policy Changes, Issues, and Optionsat 9 (Jan. 22, 2013) [hereinafter CRS Report]; Kamala Mallik-Kane, Barbara Parthasarathy, & William Adams, The Urban Institute, Examining Growth in the Federal Prison Population, 1998-2010,at 4-5 (Dec. 11, 2012), https://www.urban.org/research/publication/examining-growth-federal-prison-population-1998-2010/view/full_report; U.S. Sentencing Commission, Special Report To The Congress: Mandatory Minimum Penalties In The Criminal Justice System (Aug. 1991), https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/mandatory-minimum-penalties/1991_Mand_Min_Report.pdf.

[xi] 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).  See 18 U.S.C. 3553(f) (2010)

[xii] SeeLetter from Glenn Schmitt, Dir. of Res. and Data, U.S. Sentencing Commission, to Janani Shakaran, Pol’y Analyst, Congressional Budget Office, regarding the Sentencing Reform and Corrections Act of 2017, United States Sentencing Commission (March 19, 2018),  https://www.ussc.gov/sites/default/files/pdf/research-and-publications/prison-and-sentencing-impact-assessments/March_2018_Impact_Analysis_for_CBO.pdf.

[xiii] Although the ACLU supported the Fair Sentencing Act of 2010, we would ultimate support a change in law that would treat crack and powder cocaine equally; 1 to 1 ratio.

[xiv] SeeLetter from Glenn Schmitt, Dir. of Res. and Data, U.S. Sentencing Commission, to Janani Shakaran, Pol’y Analyst, Congressional Budget Office, regarding the Sentencing Reform and Corrections Act of 2017, United States Sentencing Commission (March 19, 2018),  https://www.ussc.gov/sites/default/files/pdf/research-and-publications/prison-and-sentencing-impact-assessments/March_2018_Impact_Analysis_for_CBO.pdf.

[xv] However, prior convictions “under State law for a crime of violence that contains an element of the offense the carrying, brandishing or use of firearm” can count as a prior conviction under 18 U.S.C. 924(c).  See Section 104.

[xviii] SeeLetter from Glenn Schmitt, Dir. of Res. and Data, U.S. Sentencing Commission, to Janani Shakaran, Pol’y Analyst, Congressional Budget Office, regarding the Sentencing Reform and Corrections Act of 2017, United States Sentencing Commission (March 19, 2018),  https://www.ussc.gov/sites/default/files/pdf/research-and-publications/prison-and-sentencing-impact-assessments/March_2018_Impact_Analysis_for_CBO.pdf.

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