Broadening of the Safety Valve in New York
In addition to making retroactive the Fair Sentencing Act’s correction of the disparity between sentences for crack and powder cocaine related offenses, a second hallmark of the FIRST STEP Act is the broadening of the safety valve provision, which dispenses with mandatory minium sentences under certain circumstances. While the Act does not provide for retroactivity of this provision, the United States Sentencing Commission estimates that this change will impact more than 2,000 defendants per year in the future. See Sentence and Prison Impact Estimate Summary (last viewed January 27, 2019).
The safety valve, codified at 18 U.S.C. § 3553(f) and also found in section 5C1.2 of the United States Sentencing Guidelines, permits judges to dispense with statutorily imposed mandatory minimum sentences with regard to violations of 21 U.S.C. §§ 841, 844, 846, 960 and 963, which involve the possession, manufacture, distribution, export and importation of controlled substances. Previously, in order to sentence a defendant without regard to the mandatory minimum sentences for these offenses, the court was required to find the following: 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 amends the aforementioned conditions by permitting judges to utilize the safety valve provision even where the defendant has up to four criminal history points, excluding all points for one-point offenses, which are generally minor crimes. However, defendants with prior three-point felony convictions and two-point violent felony convictions are still not permitted to utilize the safety valve. Additionally, the FIRST STEP Act adds 46 U.S.C. §§ 70503 and 70506, which involve the possession, distribution and manufacturing of controlled substances in international waters, to the list of offenses which are covered by the safety valve.
Limitations of the First Step Act: The Pulsifer Decision
While the First Step Act was hailed as a major reform in federal sentencing, especially with its expansion of the safety valve provision, its impact has been significantly narrowed by the United States Supreme Court’s 2024 decision in Pulsifer v. United States. The safety valve is meant to give judges discretion to sentence certain nonviolent drug offenders below mandatory minimums, provided they meet five eligibility criteria. One of those criteria, found in 18 U.S.C. § 3553(f)(1), deals with the defendant’s criminal history.
The First Step Act broadened eligibility by allowing defendants to qualify unless they had more than four criminal history points, a prior serious offense, or a violent offense. However, in Pulsifer, the Court interpreted the statute to mean that a defendant is disqualified if they meet any one of those three disqualifying conditions instead of all three. The unfortunate reality is that this restrictive reading of the statute has limited who qualifies for relief.
As a result, many defendants who were previously thought to qualify under the First Step Act’s reforms may now be excluded. What’s more, these exclusions could be based entirely on a past conviction for a relatively minor offense. Our attorneys now review every case carefully, as the expectations on how your criminal history might impact your sentence has changed. This decision may have complicated things, but our team advises on whether you may still benefit from the First Step Act.
Issues With the Effective Date
Another issue that has caused confusion among people hoping for relief under the First Step Act is the legislation’s effective date. When the Act was passed, it included an effective date of December 21, 2018. That means only convictions entered after that may apply. This date relates exclusively to when a conviction is entered by the court, even in cases where an arrest occurred years prior.
This means your eligibility depends not just on what you were convicted of in the past, but when. If you were convicted of a minor crime in early 2018, the original one-point rule applies. If that same conviction occurred in 2019 or after, you will benefit from the changes to the safety valve.
Who is Most Likely to Benefit?
The reality is that between the language of the First Step Act and the Supreme Court decision in Pulsifer, some New Yorkers are more likely than others to benefit from the safety valve provisions.
First and foremost, this is designed to support first-time offenders who do not have any criminal history. This has always been the case and hasn’t changed. Defendants who only have 1-point offenses, including minor misdemeanors, on their records are also more likely to benefit since they now qualify.
Some of the biggest winners under this change are people with 2-4 criminal history points, specifically those with two-point non-violent offenses. Under the old rules, these defendants would not be eligible for sentencing below the mandatory minimums.
Learn How Our NYC Attorneys Can Help You Understand the Broadening the Safety Valve Provision
Despite the confusion and limitations of the First Step Act, many people still benefit significantly from this change in the law. If you believe you qualify, let our criminal defense attorneys review your case and determine if we can help you avoid the traditionally higher sentences associated with these charges.
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. Lawyers 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 for a free consultation.