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Analysis

How the FIRST STEP Act Became Law — and What Happens Next

The making of a historic criminal justice reform bill.

Update June 2020: Click here for the latest on how the First Step Act is being imple­men­ted.


Last month, the FIRST STEP Act was signed into law — a major win for the move­ment to end mass incar­cer­a­tion.

For years, Congress had attemp­ted to pass crim­inal justice reform legis­la­tion, such as the Senten­cing Reform and Correc­tions Act (SRCA) intro­duced in 2015 by Senat­ors Chuck Grass­ley (R-Iowa) and Dick Durbin (D-Ill.). But the SRCA failed to pass in 2016 despite over­whelm­ing bipar­tisan support, thanks to oppos­i­tion from Sen. Tom Cotton (R-Ark.) and then-Senator Jeff Sessions (R-Ala.).

That all changed last Decem­ber when the Senate finally passed, and Pres­id­ent Trump signed, the FIRST STEP Act — a modest bill that, despite some initial setbacks, includes key parts of the SRCA. That makes it the first major reduc­tion to federal drug sentences.

What happened to make this bill possible? And more import­antly — what’s next?

The making of a crim­inal justice reform bill

The Bren­nan Center has been advoc­at­ing for federal senten­cing reform for years: Attor­neys at the Center’s Justice Program were heav­ily involved in the fight to pass the SRCA and its prede­cessor, the Smarter Senten­cing Act of 2013.

But when Donald Trump was elec­ted pres­id­ent in 2016, many worried that senten­cing reform would prove impossible for the next four years. Trump’s posi­tion on crim­inal justice reform was unclear at best and regress­ive at worse. His early moves appeared to confirm these suspi­cions: While still Pres­id­ent-Elect, Trump nomin­ated Jeff Sessions, a vocal critic of any reduc­tion to the U.S. prison popu­la­tion, to be the nation’s chief law enforce­ment officer. Nonethe­less, Grass­ley and Durbin rein­tro­duced the SRCA again in Octo­ber 2017 and navig­ated it through commit­tee in early 2018. The bill looked poised to stall once again due to vocal oppos­i­tion from Sessions.

But the momentum star­ted to pick up in early 2018, when the White House brokered the Prison Reform and Redemp­tion Act, a bipar­tisan bill aimed at improv­ing condi­tions in federal pris­ons. This bill, which was renamed the FIRST STEP Act after some modest improve­ments were added, still lacked any mean­ing­ful senten­cing reform compon­ent, mean­ing it would have done little to reduce the prison popu­la­tion. For the White House, that was part of the appeal: Repub­lican lead­ers believed that SRCA’s senten­cing reform provi­sions made it a nonstarter among conser­vat­ives. But because of that, the Bren­nan Center and a coali­tion of more than 100 civil rights groups opposed the bill, arguing that the votes were there for senten­cing reform — if only Repub­lican lead­ers would put a bill on the floor. Nonethe­less, the FIRST STEP Act passed the House of Repres­ent­at­ives by a wide margin of 360 to 59.

That’s where the process stood until late last year. A break­through occurred in Novem­ber, when lawmakers and advoc­ates reached a comprom­ise on the FIRST STEP Act, amend­ing it to incor­por­ate four provi­sions from the SRCA. The meas­ure garnered the support of the pres­id­ent and both Repub­lic­ans and Demo­crats in Congress. Crit­ic­ally, the comprom­ise was blessed by Grass­ley and Durbin, signal­ing that the new bill adequately met the goals of their own prior bill.

The FIRST STEP Act initially stalled in the Senate amid oppos­i­tion from a right-wing minor­ity faction led again by Cotton. And, crit­ic­ally, time was running out in the legis­lat­ive session, making Repub­lican lead­ers balk at spend­ing precious floor time on the bill. But another series of comprom­ises quieted oppos­i­tion from Sen. Ted Cruz (R-Texas) and garnered support for the bill from Sen. John Cornyn (R-Texas), the major­ity whip, clear­ing the path for an easy floor vote. After that change and contin­ued pres­sure from Trump, Grass­ley, the Koch Broth­ers, and constitu­ents in Kentucky, Senate Major­ity Leader Mitch McCon­nell announced in mid-Decem­ber that he would bring up the bill for a vote before the end of the year, during the lame-duck Congress.

Long­time oppon­ents of reform like Cotton still had a chance to block the bill: They could run out the clock. But a series of proced­ural short­cuts allowed McCon­nell to bring the bill to the floor by essen­tially slot­ting the text of the bill into another piece of legis­la­tion that was already eligible for Senate consid­er­a­tion. And so another hurdle was cleared.

But one more remained. During the amend­ment process for the FIRST STEP Act, Cotton and Sen. John Kennedy (R-La.) pushed for a series of “poison pill” amend­ments that would have unac­cept­ably weakened the bill and split the bipar­tisan coali­tion support­ing it, just at the moment of passage. But those amend­ments ulti­mately failed to mater­i­al­ize in the final bill, which cleared the Senate by an over­whelm­ing 87–12 margin. Not a single Demo­crat voted against the bill, and Repub­lican oppon­ents of reform were releg­ated to a small minor­ity. Next, then-House Speaker Paul Ryan (R-Wis.) cleared the way for quick consid­er­a­tion of the bill in the House of Repres­ent­at­ives — and sent it to Pres­id­ent Trump’s desk just before Christ­mas. The pres­id­ent signed the bill on Decem­ber 21.

Crim­inal justice reform starts with senten­cing reform

The FIRST STEP Act is consequen­tial because it includes provi­sions for mean­ing­ful senten­cing reform, which would reduce the number and amount of people in prison and is part of the start­ing point of any seri­ous legis­la­tion for crim­inal justice reform. Senten­cing laws played a cent­ral role in the rise of mass incar­cer­a­tion in recent decades. The federal prison popu­la­tion, in partic­u­lar, has risen by more than 700 percent since 1980, and federal prison spend­ing has increased by nearly 600 percent. That growth has dispro­por­tion­ally affected Black, Latino, and Native Amer­ic­ans.  

Federal mandat­ory minimum sentences were a cata­lyst for the recent surge of unne­ces­sar­ily harsh prison sentences. More than two-thirds of federal pris­on­ers serving a life sentence or a virtual life sentence have been convicted of non-viol­ent crimes.

But research contin­ues to show that long prison sentences are often inef­fect­ive. One Bren­nan Center study found that overly harsh sentences have done little to reduce crime. In fact, in some cases, longer prison stays can actu­ally increase the like­li­hood of people return­ing to crim­inal activ­ity. These sentences dispro­por­tion­ately impact people of color and low-income communit­ies. 

How the FIRST STEP Act tackles our outdated senten­cing laws

The FIRST STEP Act shortens mandat­ory minimum sentences for nonvi­ol­ent drug offenses. It also eases a federal “three strikes” rule — which currently imposes a life sentence for three or more convic­tions — and issues a 25-year sentence instead. Most consequen­tially, it expands the “drug safety-valve,” which would give judges more discre­tion to devi­ate from mandat­ory minim­ums when senten­cing for nonvi­ol­ent drug offenses.

In an over­due change, the bill also makes the Fair Senten­cing Act retro­act­ive. Passed in 2010, the Fair Senten­cing Act has helped reduce the senten­cing dispar­ity between crack and powder cocaine offenses — a dispar­ity that has hurt racial minor­it­ies. The FIRST STEP Act will now apply the Fair Senten­cing Act to 3,000 people who were convicted of crack offenses before the law went into effect.

Beyond senten­cing reform, the FIRST STEP Act includes provi­sions that will improve condi­tions for current pris­on­ers and address several laws that increased racial dispar­it­ies in the federal prison system. The bill will require federal pris­ons to offer programs to reduce recidiv­ism; ban the shack­ling of preg­nant women; and expand the cap on “good time credit” — or small sentence reduc­tions based on good beha­vior — from around 47 to 54 days per year. That “good time” amend­ment will bene­fit as many 85 percent of federal pris­on­ers.

The FIRST STEP Act changes the conver­sa­tion on mass incar­cer­a­tion

The FIRST STEP Act is a crit­ical win in the fight to reduce mass incar­cer­a­tion. While the bill is hardly a panacea, it’s the largest step the federal govern­ment has taken to reduce the number of people in federal custody. (The federal govern­ment remains the nation’s lead­ing incar­cer­ator, and more people are under the custody of the federal Bureau of Pris­ons than any single state system.)

The FIRST STEP Act’s over­whelm­ing passage demon­strates that the bipar­tisan move­ment to reduce mass incar­cer­a­tion remains strong. And the bill, which retains major parts of SRCA’s senten­cing reform provi­sions, is now known as “Trump’s crim­inal justice bill.” This means that conser­vat­ives seek­ing to curry favor with the pres­id­ent can openly follow his example or push for even bolder reforms. Finally, this dynamic creates a unique open­ing for Demo­crats vying for the White House in 2020 to offer even better solu­tions to end mass incar­cer­a­tion.

We’ve taken a first step. Here are some next steps to consider

The FIRST STEP Act marks progress for crim­inal justice reform, but it has some notable short­com­ings. It will leave signi­fic­ant mandat­ory minimum sentences in place. In addi­tion, two of the bill’s key senten­cing provi­sions are not retro­act­ive, which minim­izes their over­all impact.

“It’s imper­at­ive that this first step not be the only step,” said Inimai Chet­tiar, director of the Bren­nan Center’s Justice Program. “Now we must focus our efforts on bigger and bolder wide­spread reforms that will make our system more fair and more humane. We know better, and we must do better.”

The Bren­nan Center has outlined many addi­tional steps that both federal and state lawmakers can take toward ending mass incar­cer­a­tion in the United States.

One step is to elim­in­ate incar­cer­a­tion for lower-level crimes, such as minor marijuana traf­fick­ing and immig­ra­tion crimes. The default sentences for those crimes should be altern­at­ives to incar­cer­a­tion, such as treat­ment, community service, or proba­tion. Second, lawmakers should also pass legis­la­tion that would make default prison sentences — which are often excess­ively long — propor­tional to the specific crimes commit­ted. If Congress and every state enacted this pair of reforms, the national prison popu­la­tion would be safely reduced by 40 percent. Third, Congress can use the power of the purse to encour­age these changes. Wash­ing­ton spends a signi­fic­ant amount of money support­ing state crim­inal justice systems: Those dollars could be used to reward policies that reduce rather than entrench mass incar­cer­a­tion.

Ulti­mately, the FIRST STEP Act is one step in the right direc­tion for redu­cing mass incar­cer­a­tion in the United States. It has elev­ated crim­inal justice reform as a rare space for bipar­tisan consensus and cooper­a­tion in a frac­tured national polit­ical envir­on­ment. With an aware­ness of that consensus, we should push for the bigger next steps that will move us toward ending mass incar­cer­a­tion.

(Photo by Tasos Kato­podis/Getty Images)