Overview of The First Step Act in New York

On December 21, 2018, President Trump signed into law the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, also known as the FIRST STEP Act, aimed at comprehensive sentencing and prison reform. Importantly, the Act contains a number of provisions easing mandatory minimum sentences for certain crimes, and in some cases, provides retroactive applicability of the Act in order to reduce sentences for those already incarcerated. While much of the Act has yet to be interpreted by the Department of Justice, the following reforms and changes are likely to impact the largest number of individuals:

• Retroactive Application of the Fair Sentencing Act of 2010: Among the provisions of the Fair Sentencing Act of 2010 (the “FSA”) was the elimination of the disparity between sentences for crack and powder cocaine offenses, which for many years had been recognized by courts and advocates alike as grossly disproportionate and unfair. Although the FSA corrected this disparity, it remained uniformly unsettled if there was any retroactive application of the FSA. The FIRST STEP Act resolves this issue by providing retroactive application of the FSA to those previously sentenced, which the United States Sentencing Commission anticipates may impact as many as 2,660 inmates. See Sentence and Prison Impact Estimate Summary (last viewed January 13, 2019). Notably, individuals convicted of crack cocaine offenses prior to 2010 may be eligible to receive sentence reductions and should consult an attorney immediately.
• Broadening of the Safety Valve: The Safety Valve, which is codified at 18 U.S.C. § 3553(f), permits judges to sentence defendants charged with certain narcotics offenses without regard to mandatory minimums. In order to proceed on this basis, however, the sentencing court must find that each of the following factors exists: 1) the defendant does not have more than one criminal history point; 2) the defendant did not use violence, threats, or possess a dangerous weapon or firearm in connection with the offense; 3) the offense did not result in death or serious bodily injury to any person; 4) the defendant was not an organizer, leader, manager or supervisor in the offense, and was not engaged in a continuing criminal enterprise; and 5) the defendant truthfully provided information to the government concerning the offense. See 18 U.S.C. § 3553(f)(1)-(5). The FIRST STEP Act increases the maximum number of criminal history points permissible for eligible offenders to still receive the Safety Valve reduction from one to four, but with no retroactive application for those already incarcerated. The United States Sentencing Commission estimates that this change will affect more than 2,000 defendants per year in the future.
• Good Time and Merit Credits: The Act increases annual good time credits from 47 days per year to 54 – an additional seven days, calculated retroactively from the date of commitment. Further, the Act provides for additional earned time credits for completing recidivism reduction classes and other activities.
• Restricting Enhancements for Prior Drug Felonies: Although it has no retroactive application, the Act changes how prior convictions impact mandatory minimum sentences in certain drug cases, dispensing with the former three strikes law. Previously, for certain serious federal drug offenses which carry a 10 year mandatory minimum, the government could move to increase the mandatory minimum sentence from 10 to 20 years (known as an “851 enhancement”) if the defendant had at least one prior drug felony conviction, and to life imprisonment if the defendant was previously convicted of two or more drug felonies. The Act lowers the impact of filing the 851 enhancement to 15 and 25 years for those previously convicted of one, or two or more prior drug felonies, respectively.
• Clarification of 18 U.S.C. § 924(c): Previously, there existed some ambiguity as to when enhanced penalties applied for using a firearm in relation to certain crimes based on a defendant’s prior convictions. Specifically, the government previously sought to enhance mandatory minimum penalties for § 924(c) convictions for defendants who had been convicted of multiple crimes on the same day, but had no other prior convictions that qualified for the enhancement. The Act clarifies that in order to qualify as a prior conviction for the purposes of enhancing a mandatory minimum sentence under 18 U.S.C. § 924(c), the qualifying conviction must already have been final at the time of the instant offense. Unfortunately, this clarification has no retroactive effect.

Hiring a top criminal defense attorney to defend you in any federal criminal prosecution or assist with any questions concerning the applicability of the FIRST STEP Act is crucial and will ensure that every viable defense or avenue for a sentencing reduction is explored and utilized on your behalf. The top New York criminal defense attorneys at the Law Offices of Jeffrey Lichtman have successfully handled countless federal cases, exploiting holes in the prosecution’s evidence to achieve the best possible result for our clients. Contact us today at (212) 581-1001 for a free consultation.