Published on: Wednesday, December 19, 2018

Yesterday, the United States Senate voted 87-12 to pass the First Step Act, which would significantly impact mandatory minimum sentencing for certain offenses, among other things.  For example, the Act would reduce the enhanced minimum mandatory sentence  for controlled substance offenses where the government files a notice under 21 U.S.C. § 851. The bill would also limit the types of prior drug convictions that qualify as § 851 predicates, but would count prior violent felony convictions. Further, the Act would make changes to 18 U.S.C. § 924(c) to eliminate the 25-year consecutive provision unless the defendant has a final prior § 924(c) conviction. In addition, the Act would expand the availability of safety-valve (e.g., expand the eligibility for safety valve to defendants with up to four criminal history points, with exclusions) but only if the conviction is entered on or after the date of enactment. Finally, the Act permits defendants sentenced before the Fair Sentencing Act (which reduced the disparity between crack and powder cocaine), to petition for their sentences to be re-evaluated and reduced. 

Of course, the First Step Act still needs to clear the House of Representatives and can change drastically before it is enacted. But House leadership anticipates it will be passed by the House without too many changes. President Trump has supported passage of the bill before the end of the year.

Many provisions in the First Act are not retroactive—it will only apply to persons who are convicted and/or sentenced after the date of enactment. For this reason, defense counsel may want to consider filing a motion to continue trial, change of plea, or sentencing in pending cases that may be impacted by the First Step Act in the hope that the client may receive the benefit of the new legislation.

The Training Division operates a free telephone “hotline” service (1-800-788-9908) to provide guidance and information on CJA cases regarding all aspects of criminal law and procedure, such as the First Step Act. Our attorney advisors are available to consult with members of the federal Criminal Justice Act panel or federal public or community defender organization employees.