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| Judge Patti Saris |
While many have heralded the legislation as an example of bipartisan cooperation, the press has said surprisingly little about the potential effects of the act on reducing over-incarceration at the federal level.
I served as the chair of the United States Sentencing Commission from January 2011 to January 2017. In 2011, the seven-member commission unanimously issued a bipartisan 369-page report which contained recommendations for reducing harsh mandatory minimum sentences for drug and gun-related offenses.[2]
The report included many recommendations for reforms that ended up in the First Step Act. During the intervening years, the commission worked closely with Congress to provide the data and evidence needed to craft the legislation. Below I highlight just some of the ways in which the commission contributed to this reform effort.
First, the Fair Sentencing Act of 2010[3] sought to rectify the notorious crack/powder cocaine sentencing disparity by amending the drug quantity ratio used to determine sentence minimums from 100:1 to 18:1.[4] Effective Nov. 1, 2011, the commission reduced the sentencing guidelines for crack cocaine and made the reduction retroactive. However, this retroactive change could not offset statutorily required mandatory minimums.
The First Step Act rectified this inequity by making the sentence reductions for crack cocaine offenses retroactive.[5] The amendment is expected to impact around 2,600 federal defendants sentenced before Aug. 3, 2010, who did not already receive the benefit of a penalty reduction.[6] According to commission statistics, almost 90% of the offenders who will benefit are black.[7]
Second, the commission recommended assessing the severity of sentences provided by 21 U.S.C. § 851. Section 851 authorizes federal prosecutors to seek a sentencing enhancement for repeat drug offenders who face five and 10-year mandatory minimums.[8]
For example, at the time of the commission's report, if a defendant sold enough drugs to trigger a mandatory 10-year sentence and had one prior conviction for a felony drug offense, then the prosecutor could, at his or her discretion, file a Section 851 notice which would double the mandatory sentence to 20 years. If the defendant was charged with a third drug offense after two prior convictions, a Section 851 enhancement would yield a mandatory life sentence. Judges had no discretion in how they sentenced potentially low-level drug dealers. As the commission stated in its report, depending on the individual case, these mandatory penalties were severe and disproportionate.[9]
The First Step Act reduced these penalties from 20 years to 15 years, and from life to 25 years, respectively.[10] Further, in order to trigger the sentence enhancement, a defendant must have already served at least a 12-month term of imprisonment for a prior drug offense.[11] This requirement shields low-level offenders with less serious criminal histories from the enhancement.
While the First Step Act expanded predicate offenses for Section 851 to include "serious violent felonies," this development (which was not based on a Sentencing Commission recommendation) is also restricted to defendants who have previously served at least a 12-month sentence.[12]
Third, the commission recommended revising a statute which allowed for "stacking" of mandatory sentencing terms for multiple offenses committed by a defendant during a single time period, if the defendant possessed a gun.[13] The stacking allowed a first-time offender to potentially receive a life sentence. The First Step Act amended the statute by providing that the 25-year penalty for a second or subsequent offense is only triggered if the defendant has a prior conviction that has become final.[14]
Fourth, the commission also recommended that Congress expand the applicability of the "safety valve" provision.[15] The First Step Act adopted and expanded upon the recommendation. The provision provides a "safety valve" to avoid mandatory minimum sentences for certain nonviolent drug offenders with less significant criminal histories.[16] Prospectively, this amendment is expected to benefit over 2,000 offenders annually, almost half of whom are Hispanic and more than 20% of whom are black.[17]
Fifth, in 2016 the commission held hearings on whether the Federal Bureau of Prisons was moving too slowly on compassionate release petitions and granting too few. According to BOP statistics, between 2013 and 2017 it received 5,400 requests for compassionate release. The BOP approved 312 requests during that timeframe, but 266 prisoners died while still in custody.[18]
Through the First Step Act, Congress significantly expanded prisoners' access to federal courts to petition for compassionate release. The legislation allows a prisoner facing "extraordinary and compelling" circumstances, or has met certain age and sentence requirements, to file a petition with the court if he has exhausted all his administrative rights to appeal a failure of BOP to bring a motion on the prisoner's behalf, or after the lapse of 30 days from the warden's receipt of such a request, whichever is earlier.[19]
The legislation also requires the BOP to notify a prisoner's attorney, partner and family members in the case that the prisoner is diagnosed with a terminal illness.[20] This legislation presents new and varied challenges for the courts: Should a prisoner have appointed counsel, particularly if he has physical or mental disabilities? Will probation have the resources to rapidly implement release plans for approved prisoners? How many motions will be filed asserting "extraordinary and compelling" circumstances?
Courts will need to work through these issues, but this provision provides an important judicial remedy for a compassionate release system that had previously been ineffective.
Sixth and finally, I wanted to highlight two provisions that, while not recommended by the commission's reports, are nevertheless important sentencing reforms. The First Step Act expanded the number of good time credits for each year of incarceration served from 47 to 54 and applies to individuals currently in custody.[21] The commission estimates that over 140,000 prisoners will be impacted by the change when it goes into effect.[22]
The legislation also instructs BOP to create evidence-based recidivism reduction programs and a risk-assessment system.[23] These programs, if successfully completed, will provide many prisoners a meaningful opportunity to reduce their classification and earn credits towards early release. The commission predicts that approximately 100,000 prisoners will be eligible to take advantage of this programming.[24]
The act also directs the BOP to screen inmates for dyslexia and to include treatment in recidivism reduction programs, building on work performed by a member of the sentencing commission who had advocated for dyslexic and learning disabled inmates at FCI Dublin in California.[25]
Overall, the First Step Act includes significant and necessary reforms to address the issues of mass incarceration at the federal level. While I was chair of the Sentencing Commission, the federal prison population surpassed 217,000 and was still climbing. Defendants with drug charges constituted over half of the BOP's population, with black men receiving harsher sentences than similarly situated white men.
The concern was not just budgetary (although the BOP at one point accounted for one quarter of the U.S. Department of Justice's budget) but also humanitarian. At the same time, the rate of violent crime, which had spurred the war on drugs in the 1980s and 90s, was significantly decreasing in most areas. And states like Texas had taken the lead in reducing sentences, without seeing a commensurate increase in violence.
Positioned at the crossroads of the three branches of government, the United States Sentencing Commission, with its mission to reduce sentencing disparities and promote proportionality in sentencing, was well-situated to lead the way on sentencing reform. The commission uses evidence derived from statistics, and testimony from experts and stakeholders, to promulgate guideline amendments and suggest statutory reform.
As a prime example, it studied the effect of making the earlier-mentioned reductions in the crack guideline retroactive and found no increase in recidivism. In 2014, this evaluation led the way to reducing all drug penalties by two guideline levels, making more than 40,000 defendants retroactivity eligible for reductions of on average 25 months.[27] This evidence-based guideline reduction received almost no opposition from the judicial, executive or legislative branches.
In her new book "Prisoners of Politics: Breaking the Cycle of Mass Incarceration,"[28] professor (and former sentencing commissioner) Rachel Barkow advocates for "expert agencies and commissions that are charged with using data and facts to make and recommend policies that maximize public safety."[29] The book examines the role of politics in creating the crisis of mass incarceration, and Barkow points out that the United States Sentencing Commission, in particular, faces certain political realities. However, she also suggests ways to design agencies and commissions so that they may better withstand political pressures.[30]
Today, the United States Sentencing Commission sits without a confirmed chair, or even a quorum of members. This severely impairs the commission's ability to study further reforms. For example, with only two current commissioners, the commission is unable to pass amendments to make the sentencing guidelines consistent with the statutory provision expanding the "safety valve."[31] While the research and training activities of the commission continue, the commission needs a quorum.
Given the important role the commission has played in influencing the reforms found in the First Step Act, collaborative commissioners from both parties should be nominated and confirmed to continue to evaluate and advocate — in a bipartisan way — for effective sentencing policy.
Judge Patti B. Saris is chief judge for the U.S. District Court for the District of Massachusetts. She was chair of the U.S. Sentencing Commission from 2011 to 2017.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the court or the Sentencing Commission, or Portfolio Media Inc. or any of its respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018) (codified as amended in scattered sections of 18, 21, 34, and 42 U.S.C.).
[2] I am not writing on behalf of the Sentencing Commission.
[3] U.S. Sentencing Comm'n, Report to Congress: Mandatory Minimum Penalties in the Criminal Justice System, at 345-69 (2011).
[4] Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010) (codified as amended in scattered sections of 21 U.S.C. and 28 U.S.C.).
[5] Fair Sentencing Act § 2 (amending the sentencing provisions of 21 U.S.C. § 841(b)(1) and 21 U.S.C. § 960(b) to address the cocaine sentencing disparity).
[6] First Step Act § 404(b) (providing that the sentencing amendments in the Fair Sentencing Act of 2010 are retroactive).
[7] U.S. Sentencing Comm'n, Sentence and Prison Impact Estimate Survey, at 1, https://www.ussc.gov/sites/default/files/pdf/research-and-publications/prison-and-sentencing-impact-assessments/January_2019_Impact_Analysis.pdf (last visited Apr. 10, 2019).
[8] Id.
[9] See 21 U.S.C. § 851(a)(1).
[10] See U.S. Sentencing Comm'n Report to Congress, at 252-68, 352-53 (analyzing the sentencing impacts of § 851).
[11] First Step Act § 401(amending 21 U.S.C. § 841).
[12] See id. (amending 21 U.S.C. § 802 to define "serious drug felony" and "serious violent felony" as each requiring that "the offender served a term of imprisonment of more than 12 months" on the offense).
[13] See id.
[14] 18 U.S.C. § 924(c)(1)(C).
[15] First Step Act § 403 (amending 18 U.S.C. § 924(c)(1)(C)).
[16] See 18 U.S.C. § 3553(f)
[17] First Step Act § 402 (broadening applicability of existing safety valve sentencing provision from just defendants who did not have more than 1 criminal history point to include those defendants who do not have more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, and who do not have a 3-point or violent 2-point offense).
[18] U.S. Sentencing Comm'n Impact Estimate Survey, at 1.
[19] Christie Thompson, Old, Sick and Dying in Shackles, The Marshall Project (Mar. 7, 2018, 5:00 AM), https://www.themarshallproject.org/
2018/03/07/old-sick-and-dying-in-shackles.
[20] First Step Act § 603(b) (amending 18 U.S.C. § 3582(c)(1)(A)).
[21] Id. (inserting 18 U.S.C. § 3582(d)).
[22] First Step Act § 102(b) (amending 18 U.S.C. § 3624).
[23] U.S. Sentencing Comm'n Impact Estimate Survey, at 1. The Act set the effective date as the date that the Attorney General completes and releases the risk and needs assessment system required by the Act.
[24] First Step Act § 101 (inserting 18 U.S.C. § 3632 which requires the Attorney General to develop and release publicly a risk and needs assessment system including guidance on the type, amount, and intensity of evidence-based recidivism reduction programming and productive activities for each prisoner).
[25] U.S. Sentencing Comm'n Impact Estimate Survey, at 1.
[26] See First Step Act § 101 (inserting § 3632(h) instructing the Attorney General to develop a program to screen for dyslexia and incorporate treatment into evidence-based recidivism reduction programs).
[27] U.S. Sentencing Comm'n, Summary of Key Data Regarding Retroactive Application of the 2014 Drug Guidelines Amendment (July 2014) at 2, available at https://www.ussc.gov/sites/default/files/pdf/research-and-publications/retroactivity-analyses/drug-guidelines-amendment/20140725-Drug-Retro-Analysis.pdf. See also U.S. Sentencing
Comm'n, 2014 Guidelines Amendment Retroactivity Report (Aug. 2018) Tbls. 1 & 8 (demonstrating 49,911 total motions and 11,640 denied because offender ineligible under §1B1.10), Tbl. 7 (total average decrease 25 months), available at https://www.ussc.gov/sites/default/files/pdf/research-and-publications/retroactivity-analyses/drug-guidelines-amendment/20180829-Drug-Retro-Analysis.pdf.
[28] Rachel Barkow, Prisoners of Politics: Breaking the Cycle of Mass Incarceration (Harvard University Press 2019)
[29] Id. at 10.
[30] Id. at 169-175.
[31] The safety valve provision at § 5C1.2 of the United States Sentencing Guidelines Manual differs from the First Step Act reforms, codified at 18 U.S.C. § 3553(f).