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Federal Sentencing Reform: First Steps Act

Donald Trump announced his support for federal sentencing reform earlier this week. What reform and whether he really supports the reform are open questions.

Earlier this year the House passed a bill that included only prison reform: laws that govern the treatment of and credit awarded to inmates once they are sentenced by the court. The most notable of those reforms a 10 day reduction in a prison sentence for every 30 days the prisoner participates in evidence-based crime-reduction programs. Such a reduction would be granted in addition to the 54 days that a inmate can receive each year for good behavior.

While that reform is positive, it’s limited in effect in part because funding has limited the number of slots available for participation in such programs.

The Senate, however, is considering a more ambitious sentencing reform bill – called “First Steps” – that would include prison reforms and sentencing reforms.

While the sentencing reforms are modest, they are still important.

First, the Senate version of the bill would eliminate 924(c) stacking. A 924(c) is the crime of possessing a firearm in furtherance of a drug trafficking crime or crime of violence. Under the current law, the first conviction is a mandatory 5 years consecutive to all other counts; the second and all subsequent convictions are each 25 years consecutive to all other counts.

In the not uncommon case in which a defendant possesses a firearm at three drug sales, even if the firearm is never displayed, the defendant faces a mandatory minimum of 55 years consecutive to all other counts.

The Senate version of the bill would eliminate the mandatory stacking of the offenses, and allow a judge to run the sentences concurrent to other sentences. While 924(c) would still be incredibly punitive, they would not exact the terrible toll they take today.

Second, the Senate version of the bill would reform the use of 21 U.S.C. 851 enhancements. An 851 allows the Government to effectively double or impose mandatory life sentences if a drug offender has a prior felony drug conviction in either state or federal court. For repeat drug offenders, the effect can be a life sentence if found guilty.

The Senate reform would require the offender to have been convicted not just of a prior felony drug offense, but of a serious drug felony. (It adds offenders who have previously been convicted of serious violent felonies to the list of people eligible for the 851 enhancement.)

In addition, the Senate reform would reduce the punishments imposed upon the filing of an 851 notice. In certain cases, a single prior serious drug felony conviction would result in a 15 year minimum, not the current 20 year minimum. And two prior serious drug felony convictions would reduce the sentence from Life to a 25 year mandatory minimum.

Third, the Senate bill would make the crack-powder disparity correction passed in 2010 retroactive, allowing prisoners convicted prior to 2010 to take advantage of the law.

Fourth, the Senate bill change the way the Bureau of Prisons calculates good time credit to ensure prisoners receive 54 days each year for good behavior.



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