US Sentencing Commission issues big new report on "The First Step Act of 2018: One Year of Implementation"
I am extremely pleased to see that the US Sentencing Commission this morning released this big new report (and this infographic) providing data and analysis on the impact of the First Step Act over the period it calls “First Step Year One” running from December 21, 2018 through December 20, 2019. Importantly, though the report is titled " "The First Step Act of 2018: One Year of Implementation," the USSC in this document is only examining key sentencing provisions and not all the prison reforms and other significant elements of the First Step Act. (As the start of the report explains: "This report examines the impact of five provisions of the First Step Act of 2018 related to sentencing reform.")
In addition, and I think valuably, the report cover an entirely pre-COVID period and thus sets an interesting and important baseline for understanding the impact of the First Step Act before the pandemic may have changed things. The most obvious change brought about by COVID was a sharp increase in the number of motions for compassionate release/sentence reduction, but I suspect there will be other impacts that will be reflected in future data.
With all that background, here are some "Key Findings" from the Introduction of the full USSC report:
REDUCING DRUG RECIDIVIST PENALTIES
Enhanced recidivist penalties imposed pursuant to 21 U.S.C. § 851 applied to fewer offenders in First Step Year One, as a result of the First Step Act’s narrowing of qualifying prior drug offenses. When enhanced penalties did apply, they were less severe than in fiscal year 2018.
• The number of offenders who received enhanced penalties decreased by 15.2 percent, from 1,001 offenders in fiscal year 2018 to 849 offenders in First Step Year One.
• The new 15-year enhanced mandatory minimum penalty, which was reduced from 20 years by the First Step Act, applied to 219 offenders in First Step Act Year One. By comparison, the 20-year enhanced mandatory minimum penalty applied to 321 offenders in fiscal year 2018....EXPANDING SAFETY VALVE
Offenders were more likely to receive relief from a mandatory minimum penalty or a reduction in sentence as a result of the First Step Act’s expansion of the safety valve eligibility criteria at 18 U.S.C. § 3553(f).
• In First Step Act Year One, of 13,138 drug trafficking offenders convicted of an offense carrying a mandatory minimum penalty, 41.8 percent (n=5,493) received statutory safety valve relief from the mandatory minimum penalty. By comparison, in fiscal year 2018, of 10,716 drug trafficking offenders convicted of an offense carrying a mandatory minimum penalty, 35.7 percent (n=3,820) received statutory safety valve relief.
• In First Step Act Year One, of 19,739 drug trafficking offenders, 36.1 percent (n=7,127) benefited from the safety valve, either by receiving relief from a mandatory minimum, a
guideline reduction, or a variance based on the new expanded eligibility criteria. By comparison, of 18,349 drug trafficking offenders, 32.1 percent (n=5,885) benefited from the safety valve in fiscal year 2018....LIMITING 924(c) “STACKING”
The 25-year penalty for a “second or subsequent offense” under 18 U.S.C. § 924(c) applied less frequently in First Step Year One, as a result of the First Step Act’s limitation of the penalty to section 924(c) offenders with a final prior firearms conviction, as opposed to those with multiple section 924(c) charges in a single case....
RETROACTIVELY APPLYING THE FAIR SENTENCING ACT OF 2010
Since authorized by the First Step Act, 2,387 offenders received a reduction in sentence as a result of retroactive application of the Fair Sentencing Act of 2010....
COMPASSIONATE RELEASE
In the first year after passage of the First Step Act, 145 offenders were granted compassionate release under 18 U.S.C. § 3582(c)(1)(A), a five-fold increase from fiscal year 2018, during which 24 compassionate release motions were granted.
A lot could be said about these data and lots more in the report, but my short take away is that the sentencing revisions in the First Step Act largely achieved their intended goals and impacted a lot of cases, though they still have a relatively small impact on a massive federal criminal justice system. For example, even though these data show than the First Step Act's expanded safety valve provision served to benefit roughly 1250 more federal drug defendants at sentencing, any system-wide benefit would seem to be largely eclipsed by the fact that the federal government brought roughly 1400 more drug cases into the federal system. When some federal drug sentences go down slightly, but the overall number of defendants being sentenced for drug cases goes up (and especially if the federal caseload increase involves mostly lower-level offenders), it is hard to get too excited about the impact of reform.
I do not want to throw cold water on the good news that this new USSC report represents. Rather, I just want to stress that there is still a WHOLE lot more reform work needing to get done. (There is also a whole lot more work needed to be done in analyzing this report, which I hope to be able to do in some subsequent posts.)
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