First Step Act – Criminal Justice Reform

In the final month of this Congressional session, the Senate may take up criminal justice reform. The First Step Act – a bill led by a bipartisan group that includes Judiciary Committee Chairman Chuck Grassley (R-IA) and Democratic Whip Dick Durbin (D-IL) – attempts to chip away at this country’s mass incarceration problem, reduce recidivism, and walk back some unfair sentencing practices. It proposes to:

  • repeal the three-strikes life sentence for drug crimes, and instead implement a 25-year penalty for third offenses;
  • reduce the two-strike drug penalties from 20 years to 15 years;
  • allow a firearm sentencing enhancement to run concurrently with the underlying penalty (currently, a defendant who convicted of a non-violent drug offense whilst nevertheless possessing a firearm is essentially given two sentences);
  • expand the sentencing “safety valve” so that judges can deviate from the harsh penalties prescribed for certain drug crimes;
  • retroactively reduce sentences for those convicted of crack cocaine offenses before the law was changed to remedy the disproportionate treatment of crack to powder cocaine; and
  • allow low-risk inmate who participate in anti-recidivism programs to receive earned time credits and thus serve the remainder of their sentence in a supervised release setting.

A more modest version of the bill was already passed by the House of Representatives. Many hope the Senate will vote on – and pass – the amended version before the end of this session.

As defense attorneys, we see the broken parts of our system every day. We have a constitutional duty to fight for just outcomes at each stage of the case, and sentencing is the most critical stage for many of our clients. This is especially true for those charged with and convicted of white collar crimes, who often want, more than anything, a chance to rebuild the lives.

But getting a fair sentence is not easy. The court can sentence defendants based on conduct for which they were not convicted and evidence that would be inadmissible at trial. The court also considers the U.S. Sentencing Guidelines, a nuanced scheme that, among other challenges, may call for defendants to re-serve time they had already served in a state facility. But as defense attorneys, we focus in this work and do whatever is necessary to make sure the punishment fits the crime (and importantly, the offender). Nevertheless, systemic reforms are undoubtedly needed.

The First Step Act is a bipartisan policy, and bipartisanship is rare in today’s climate. Criminal justice reform has become an area where both sides of the aisle can find common ground. Republicans and fiscal conservatives see mass incarceration as a wasteful use of public funds and loss of human capital, and the federal government’s role in our criminal/legal apparatus – in which public safety is a police power of the states – as far too big. For Democrats and social justice progressives, mandatory minimums and strict drug laws are tools of a discriminatory system – applied disproportionately to certain defendants – and crime should be approached as a consequence of poverty, illness and trauma.

This is a good first step.

Steve’s Fresh Perspective

SAFE Markets?


U.S. Senators Schumer and Shelby recently introduced a bill entitled the Supplemental Anti-Fraud Enforcement (“SAFE”) Markets Act.  The purpose is to dedicate an additional $110 million for new hires at law enforcement agencies to investigate and prosecute white-collar crimes. 


Although white-collar criminal defense attorneys appreciate the gesture, other factors will determine whether the country sees any meaningful increase in the number or quality of cases.  For example, the summary of the legislation in the press release suggests that the bill will provide for 50 new Assistant United States Attorneys at a cost of $10 million.  If the salary for each AUSA is about $100,000, then it appears this may be another series of fifty two-year term AUSA positions.  These short-term slots have been a favorite way for Congress, in recent years, to increase the number of AUSAs working in a particular area without committing to a permanent budget increase.   


The problem is, white-collar prosecution is a long-term endeavor.  Many investigations (and certainly the resulting prosecutions) are not begun and concluded in a two-year time frame.  Moreover, although the rocky economy may change the hiring dynamic, the type of attorney interested in a limited-term stint as an AUSA is generally a mid-level associate at a large law firm.  Those smart, driven individuals often have no prosecutorial experience and limited courtroom experience.  They require at least several months to get “up to speed” on the techniques for the investigation and prosecution of criminal cases.  By the time they have their feet wet, they are well into a two-year term, and generally turn their attention to applying for a permanent AUSA slot, which may or may not be available.   Any cases they begin investigating during their tenure may have to be handed off to a permanent AUSA, if the term slots are not renewed.

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