A bipartisan 2018 law reduced prison time for drug offenders in its first year of enactment, the United States Sentencing Commission announced on Aug. 31, a step toward slowing mass incarceration rates which disproportionately affect low-income communities and people of color.
The federal First Step Act aims to prevent individuals who have previously been imprisoned from breaking the law again — also known as recidivism. Signed into law by the Trump administration in Dec. 2018, it increased access to drug therapies for felons, lowered prison time for drug offenses and backpedaled on laws which had previously boosted crack cocaine sentences.
“Some say, ‘you do the crime, you do the time;’ however, that time should be fair and just,” said Alice Johnson, who had her life sentence commuted for a nonviolent drug conviction, about the act at the Republican National Convention in August.
Its ultimate goal is to reduce the federal prison population while prioritizing public safety through the following:
The act established a risk-and-needs assessment at the Bureau of Prisons to study what leads to repeat offenses and created programming that could quell federal prisoners' tendency to break the law after release. Prisoners who successfully complete recidivism reduction training can earn time credits for early placement in pre-release custody, such as a halfway house.
It also renewed the Second Chance Act, which reauthorized funding for and expanded the scope of programs meant to reduce recidivism and aid in the transition from incarceration to freedom; several of these programs are outline by the Congressional Research Service.
Easing mandatory minimums
"Mandatory minimums" force judges to sentence defendants with at least a certain number of years based on the crime(s) in question. Possession of five grams of pure methamphetamine with intent to distribute is automatically five years for a first-time offender: That's about enough meth to get 20 people high for half a day (on average). Although designed to enforce equity across defendants, it ultimately bolstered a prosecutor's power in sentencing over judges, according to the Criminal Justice Policy Foundation.
The First Step Act reduced the mandatory minimum across the board: for a one-time offender, from 20 years to 15 years; for a two-or-more-time offender, from life-in-prison to 25 years. The change serves as a "drug safety valve" for judges, giving them more discretion in sentences.
And instead of any felony abuse charge requiring a mandatory minimum, only "serious drug" or "serious violent felonies," like murder or kidnapping, apply now. Serious drug felonies have a 10-year sentence maximum; normal drug felonies simply must exceed one year.
The act eliminated the mandatory minimum for crack cocaine, which was five years for five grams compared to powdered cocaine's five years for 500 grams. Crack cocaine and powder cocaine have almost no chemical difference — their difference was in users. Crack was used widely in Black people in the starting in the 1980s while powder was used by white people, meaning the heightened penalty led to a higher incarceration rate of Black people.
This was partly rectified by the Obama-era Fair Sentencing Act of 2010, which slashed penalties for possessors of crack versus powder. The First Step Act made the Fair Sentencing Act retroactive, allowing people who had been imprisoned for crack prior to 2010 to petition federal courts to reduce their sentences.
But as mandatory minimum laws changed, the classification of drugs which lead to convictions remained largely the same.
Drugs and other controlled substances are ranked by five schedules (I to V) according to their danger and potential for abuse. Schedule I drugs are considered the most dangerous, such as heroin, while Schedule V drugs are considered the least dangerous, like Robitussin cough syrup. While it is possible to be convicted of a crime with a Schedule III, IV or V controlled substance, Schedule I and II controlled substances are the ones tied to mandatory minimums.
Among Schedule I and II drugs are marijuana (I), Adderall (II), cocaine (II) and methamphetamine (II). The first offense for manufacturing, distributing or having with the intent to distribute any of these is 20 years; any subsequent offense results in life imprisonment. (Many states have or are looking to decriminalize the possession, distribution and production of marijuana, though it remains Schedule I.)
Nudging programs already in place
The act reinforces regulations that the Bureau of Prisons was supposed to have prior to the law's enactment that have reportedly fallen by the wayside in recent years. This includes the prohibition of restraints on pregnant inmates, prevention of solitary confinement for juveniles, assignment of inmates to facilities within a 500 mile journey from family (when possible) and "compassionate release" of inmates who are elderly or terminally ill.
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