On December 21, 2018, the First Step Act became law. It aims to reform several areas of the federal criminal justice system.

For readers of this blog who are concerned with federal drug trafficking sentences, the big news is:

  • The mandatory minimums set by 21 U.S.C. Section 841(b)(1) and Section 960(b) (importing or distributing controlled substances) are significantly reduced,
  • and, for those whose cases are pending, those reductions apply to those who have not yet been sentenced, but the sentence reductions are not retroactive.
  • The “safety valve” criteria under which a Judge does not have to impose a statutory mandatory minimum when sentencing are significantly broadened,
  • and the broadening of those criteria only applies to those who have not yet been convicted yet; it is not retroactive for those who have already been convicted.
  • 18 U.S.C. Section 924(c) is clarified so that prosecutors cannot “stack” offenses under 924(c) for subsequent occurrences in order to increase the mandatory minimum, but only for subsequent convictions,
  • and the 924(c) clarification applies to those who have not yet been sentenced.
  • The Fair Sentencing Act of 2010 (FSA), which reduced the penalties for crack cocaine offenses, is made retroactive, so that if a defendant was sentenced before the FSA, and the FSA would have reduced their sentence, he/she can get his/her sentence reduced in most cases.

There are many other provisions in the First Step Act that affect specific situations. These include:

  • Prisoners should not be placed more than 500 miles away from their primary residence if possible.
  • Solitary confinement of juveniles is strictly limited.
  • Pregnant (or recently pregnant) prisoners should, generally speaking, not be physically restrained.

Besides these, the Act authorizes more studies, programs, and grants for improving recidivism rates, re-entry from prison, education while still in prison, and opioid abuse treatment, and makes some changes to expedite the compassionate release process and to allow more time credits.

While we are encouraged by these steps in the right direction, many of these provisions give the Bureau of Prisons leeway to do as much or as little as officials want towards these goals, e.g., “The Bureau of Prisons shall [do this section of the bill] to the extent practicable.” So the overall effect of the First Step Act depends on its implementation, which may vary even prison to prison depending on how much a particular prison invests in implementing these provisions.

Call us at (512) 693-9LAW, email chad@drugandgunlawyer.com, or send us a message via the “Contact Us” page if you want to discuss what is possible in your situation with a federal defense firm with experience in these issues. Stay tuned for further updates!


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