In August, Senator Chuck Grassley (R-Iowa) met with President Trump to add new reforms to the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person (FIRST STEP) Act.


The bill proposes recidivism reduction programs for minimal and low-risk offenders by providing time-release credits to inmates who participate in rehabilitative programs. While the bill passed the House under a 360 – 59 favorable vote, there are still more reforms that can be added to the bill package.


Among the proposals suggested by Senator Grassley include retroactive application of the Fair Sentencing Act, updating stacked charges and the safety valve. Many of the proposed changes to the FIRST STEP Act are included in the Sentencing Reform and Corrections Act (S.1917), which already passed the Senate Judiciary Committee and awaits action on the floor. While the physical text of the new sentencing reforms are still being written, the SRCA provides a good example of what we might see in the final bill text.


Fair Sentencing Act


The proposal would apply elements of the Fair Sentencing Act, which reduced the crack to powdered cocaine disparity from 100 to 1 to 18 to 1. The bill was signed into law in 2010.


Senator Grassley’s proposal would retroactively apply the 18-1 crack to powdered cocaine disparity to prisoners serving time before the Fair Sentencing Act became law.


The crack to powdered cocaine disparity refers to the amount of crack as opposed to powdered cocaine necessary to trigger mandatory minimum sentences. Before the Fair Sentencing Act, one gram of crack cocaine would have the equivalent minimum sentence as 100 grams of powdered cocaine. The sentence was reduced with the Fair Sentencing Act to an 18 to 1 crack to powdered cocaine disparity but the law does not address inmates already serving time before 2010.


Contrary to what critics might say, retroactively applying the Fair Sentencing Act would not alter the recidivism rate. The US Sentencing Commission ran a study which found that retroactively has no effect on the rate of recidivism. 


Keeping people in jail for long sentences that are no longer law is not only senseless, it also wastes taxpayer dollars. On average, it costs $31,000 a year to keep someone in jail. Since taxpayer dollars are limited, we should not be wasting money on locking up individuals with outdated sentences who do not pose a threat of recidivism to society.


Retroactively applying the Fair Sentencing act would ultimately save taxpayers money while also ensuring that individuals in prison have a fairer sentence that matches the crime. 


Stacked Charges


The proposed changes to the FIRST STEP Act also address stacked charges.


Stacked charges came into the spotlight when Weldon Angelos received a 55-year sentence for three stacked counts of small marijuana sales, each time with his gun in possession, even though he was a first time offender.


His 55-year sentence was more than the mandatory minimum for hijacking, kidnapping or rape. After serving 13 years in prison and an extensive campaign in favor of his release, a federal court agreed to release Angelos. 


Angelos is not the only case of stacked charges gone wrong. Stacked charges are often applied to nonviolent lawful gun owners. 


The Grassley proposal would prevent first time offenders from receiving stacked charges and would ensure that only real recidivists receive stacked charges.


The uncontroversial proposal even received support from then Senator Jeff Sessions (R-Ala). In 2015 while SRCA was marked up in the 114th Congress, Sessions explained that, “I think the stacking issue is a problem…I would support reform of the stacking provisions somewhat like you have it in the bill today.”


Safety Valve


The current federal safety valve was implemented in 1994 with the Violent Crime Control and Law Enforcement Act, which outlines five criteria for an offender to be eligible for the federal safety valve.


Currently, an individual is eligible for the federal safety valve if they do not have more than one criminal history point, they did not use violence or threats of violence or possess a firearm or other dangerous weapon (in connection with the offense), the offense didn’t result in death or serious bodily injury to another person, the individual was not an organizer, leader, manager, or supervisor of others in the offense, and the individual truthfully provided all relevant information to the government on the offense or conduct surrounding the offense. By expanding the federal safety valve to four criminal offense points, judges would be able to provide fairer sentences to nonviolent offenders while still holding real violent criminals accountable.


A safety valve allows a judge to use judicial discretion for sentencing. This means that judges can use their experience and expertise to make some legal decisions at their discretion among a range of possible decisions when one specific course of action is not clearly outlined by law. The proposal would ensure that judges have the option to go below a mandatory minimum if a punishment is too excessive, allowing judges to provide fairer sentences when necessary.


The proposed addition to the First Step Act would expand the federal safety valve to four criminal offense points as opposed to just one offense.


The federal safety valve does not automatically mean that an individual would receive a sentence below the mandatory minimum, nor does it allow a judge to act in any way they choose. Rather, it provides a framework that allows a judge to use their discretion to sentence below the mandatory minimum if it is too harsh for the offense.


Today, criminal history points are calculated based on the sentence an individual has received in the past based on the yearly sentencing guidelines. For example, an individual receives 3 points for each prior sentence of imprisonment exceeding one year and one month while a prior sentence of less than sixty days accounts for 1 point. Criminal history points are added together and are used as an indicator for whether a judge can issue a sentence below a mandatory minimum.


Criminal history points compound, meaning many non-violent offenders who have more than one charge against them, regardless of the fact that they did not commit a violent crime, are not eligible for the federal safety valve. Extending the federal safety valve to four criminal history points would allow for more non-violent offenders to have fairer sentences, while also holding serious criminals accountable for their actions.


Expanding the federal safety valve would also save federal tax dollars. Since the Violent Crime Control and Law Enforcement Act was signed into law, 80,000 federal drug offenders have received fairer sentences, saving the government about $28,000 per prisoner per year. By expanding the federal safety valve, we would save taxpayer dollars while also providing fair sentences for non-violent crimes.


The proposal would amend Section 3553 of Title 18 of the US Code, which limits the applicability of mandatory minimums in certain cases. This is also known as the federal safety valve, which provides an exception to mandatory minimum sentences for nonviolent offenders without a criminal history.


FIRST STEP Act is a common sense solution


The bottom line is that someone can’t be thrown in jail unless we make what he or she is doing illegal. We are putting too many Americans in prison for nonviolent crimes, wasting taxpayer dollars and tearing apart families in the process. 


Currently there are 2.3 million individuals behind bars, costing $74 billion in federal spending. Due to the increasing prison population from 1980 until today, spending has more than quadrupled from $17 billion to $74 billion.


Congress will come back into session briefly following the election and before the New Year, at which time Senate Majority Leader Mitch McConnell has promised a whip count on the FIRST STEP Act. The President has also expressed his support for the bipartisan bill, leaving the Senate floor vote as one of the final hurdles to overcome before the bill can become law.


The bill is a bipartisan effort that drastically and positively revamps the criminal justice system. The bill is sponsored by Congressman Doug Collins (R- Ga-9) in the House (H.R.5682) and has 19 cosponsors from both parties. The Senate version (S.2795) of the bill is sponsored by Senator John Cornyn (R-Texas) and cosponsored by Senators Sheldon Whitehouse (D-R.I.) and Tim Scott (R-S.C.). The House overwhelmingly passed the FIRST STEP Act in May, but the bill still awaits action in the Senate.


The FIRST STEP Act, along with Senator Grassley’s proposed sentencing reform items, would create a positive impact on the criminal justice system. We can’t afford for the clock to run out on this important piece of legislation.