Federal Sentencing Reform: What Is the First Step Act?

Learn how the First Step Act could affect people facing federal criminal charges or already serving time in federal prison.

By , Attorney

The federal First Step Act became law in 2018, with support from both Democrats and Republicans. Legislators appeared to agree that federal sentences and incarceration practices were unnecessarily long and counterproductive. This article discusses some of the ways the Act addresses sentencing and prison reform in the federal system. In short, the Act reduced sentences for some people who are still serving prison time, shortened sentences for some types of new convictions, and allows early release for some inmates.

What Does the First Step Act Do?

The monetary and human cost of mass incarceration is high, and Congress passed the First Step Act to address the problem. The Act shortened sentences for certain kinds of federal crimes, like drug offenses. It also directed the federal Bureau of Prisons to improve prison conditions and increase inmates' participation in rehabilitation programs, and it increased opportunities for early release, including "compassionate release." The goal was to ensure that sentences aren't unnecessarily long and that incarcerated people are ready to reenter society when released, so they won't commit more crimes and return to prison. Importantly, the Act applies only to federal cases and prisons. A person serving a state sentence won't benefit from the Act, though many states have passed their own sentencing reform laws. (Learn what makes a case a federal or state case.)

Sentencing Reform Under the First Step Act

The First Step Act made several changes to federal sentencing law, including some significant sentencing reforms discussed below.

Changes in Mandatory Minimum Sentences for Some Federal Offenses

A criminal law's mandatory minimum sentence is the shortest sentence a judge may impose for a conviction for that crime. In some circumstances, such as when defendants have certain types of prior convictions, judges must impose an "enhancement," which increases the mandatory minimum number of years for the crime. For example, with certain drug offenses before the Act, the mandatory minimum of 10 years was increased to 20 years for having one prior drug felony, and to life in prison for having two or more prior drug felonies. Now, the minimum is 15 years for one prior, and 25 years for two or more priors. Further, before Act, those enhancements applied whenever a defendant had any prior drug felony conviction, but the Act now allows the enhancements only if the prior conviction is a "serious drug felony" as defined under federal law. These are just a few examples of changes the Act made to mandatory minimums in drug cases.

Limits on Gun Enhancements

Before the First Step Act, the use of a gun during drug-trafficking offenses or violent offenses (such as robbery) required a 25-year mandatory minimum if the offense was a "second or subsequent" conviction for such conduct. This escalating punishment was supposed to deter people convicted of committing armed offenses from committing armed offenses in the future. But the law was applied (arguably misapplied) to cases that resulted in multiple convictions in the same case: One of the convictions was considered the first conviction, and the others were considered second and subsequent convictions. Further, the enhancement had to be imposed consecutively (one after the other) for every second or subsequent conviction. So, if a person was armed when committing five drug deals or five convenience store robberies, the judge was required to impose a sentence of over 100 years, even if it was the person's first case.

To eliminate these harsh sentences, the First Step Act limits the 25-year gun enhancement to cases where defendants have a previous, final conviction for committing an armed offense. Although the change applies only to sentences imposed after the Act, some courts will consider a defendant's unusually long sentence for gun (and drug) offenses committed before the Act when deciding whether to grant compassionate release. (See "Changes to Compassionate Release," below.)

Changes in the "Safety Valve"

In some cases, federal judges can impose less than the mandatory minimum and avoid sentences that are inappropriately long. This feature of federal sentencing is commonly known as the "safety valve." Whether a judge can use the safety valve depends on several factors, including the defendant's criminal history, which is measured in points. Before the First Step Act, judges could impose less than the mandatory minimum only when the defendant had no more than one criminal history point. The Act now allows judges to use the safety valve when the defendant has four or fewer criminal history points

Reduced Disparity in Sentences for Crack Cocaine vs. Powder Cocaine

Long before the First Step Act, the Fair Sentencing Act of 2010 shortened sentences for crack cocaine offenses. At that time, people convicted of dealing crack cocaine (primarily Black people) were subject to the same sentences as people convicted of dealing 100 times more powder cocaine (primarily white people). This meant that Black people went to prison for cocaine offenses far longer and far more often than white people. (To learn more, see Crack vs. Powder Cocaine: One Drug, Two Penalties.) Although the Fair Sentencing Act reduced (but did not entirely eliminate) this unfair disparity, the changes applied only to sentences imposed after 2010. To fix this, the First Step Act now allows defendants sentenced before 2010 to seek reduction of their sentences for crack cocaine offenses. Thus, unlike the other changes in the law discussed above, the lesser punishment for crack cocaine is "retroactive," meaning it applies to sentences imposed before the change in the law.

Courts Can Consider New Information When Resentencing Under the Act

In 2022, the United States Supreme Court held that when a defendant is resentenced under the First Step Act, the sentencing court can consider changes in the facts and in the law that have occurred since the original sentence was imposed. For example, assume that a defendant got an enhanced sentence for his crack offense because he had a certain kind of prior conviction, but years later, his prior conviction was vacated. When that defendant seeks resentencing on his crack offense under the First Step Act, the resentencing court can now consider that he no longer has that prior conviction when choosing a sentence. The court can also consider the defendant's good (or bad) behavior in custody when deciding what new sentence to impose. (See Concepcion v. United States, 597 U. S. ____ (2022).)

Prison Reform Under the First Step Act

The First Step Act made many changes to prison rules and conditions, including expansion of the compassionate release program and increases in the "credits" inmates can earn toward their sentences. Each of these changes can affect how soon an inmate will be released.

Changes to Compassionate Release

The First Step Act expands the program of "compassionate release," which allows courts to grant early release for "extraordinary and compelling reasons," such as an inmate's permanent serious illness. In the past, only the Bureau of Prisons could file motions for compassionate release, but the First Step Act now allows inmates to file their own motions. Not surprisingly, many more compassionate release motions have been granted under this new rule than previously. And although some judges disagree, many have ruled that because the First Step Act acknowledged the inappropriately long sentences resulting from drug and gun enhancements before the Act, defendants who received those sentences present an extraordinary and compelling reason for compassionate release. (See United States v. McCoy, 981 F.3d 271 (4th Cir. 2020).)

Changes to Good Time Credits

"Good time" credits are rewards that inmates earn for good behavior while incarcerated. The more credits that inmates earn, the earlier they can be released. The First Step Act increased the number of good time credits an inmate can earn for following prison rules and participating in rehabilitation programs. It also directed the Bureau of Prisons to increase access to those programs. Further, inmates whose credits were calculated before the First Step Act can have them recalculated under the new formula, though it is up to the Bureau of Prisons (not courts) to do the calculation and decide whether an inmate has earned good time credits.

Talk to a Lawyer

If you are facing criminal charges, it's important to discuss your case with a lawyer before making any decisions about how to proceed. And if you or someone you know might benefit from the changes to federal sentencing described above, consider consulting with a criminal defense lawyer who practices in the federal courts in your area. Most criminal defense attorneys work in their state courts, but a few also handle federal cases. Some attorneys, especially in metropolitan areas, work in both systems. You'll need the help of an attorney if you want to retroactively reduce a federal sentence, if you feel that any credits have been calculated incorrectly, or if you think that you are not receiving other intended benefits of the First Step Act.

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