The Two First Step Acts

Judges, inmates, and others have asked me about the First Step Act, wondering whether it entitles certain defendants to a reduced sentence or an early release from prison. The confusing thing is that there are two First Step Acts—one federal, and one state. The federal First Step Act was signed into law in late 2018. North Carolina’s First Step Act did not become law.

The Federal First Step Act. In 2018, Congress passed a federal law called the First Step Act. Pub. L. No. 115-391 (2018). It made many significant changes related to federal sentencing law and the rules governing the Federal Bureau of Prisons (BOP). Among other things, the federal First Step Act:

  • Required the U.S. Department of Justice to develop a risk and needs assessment to be used by the BOP to assess the recidivism risk of all federal prisoners and to place them in appropriate programs and activities based on their “specific criminogenic needs.” Inmates who complete assigned activities (called “recidivism reduction programming” in the law) can earn credits that will allow them the possibility of an earlier release through home confinement or a reentry center. The assessment, called the Prisoner Assessment Tool Targeting Estimated Risk and Need (PATTERN), is discussed here.
  • Reduced the penalties for some federal crimes, including reducing the mandatory minimum sentences for some drug traffickers (for example, the life-in-prison minimum for certain repeat offenders is reduced to 25 years, and the 20-year minimum for others is reduced to 15 years).
  • Made some provisions of the federal Fair Sentencing Act of 2010 (Pub. L. No. 111-220) retroactive, allowing sentence reductions for certain inmates who received a longer sentence for crack cocaine possession than they would have received for the same amount of powder cocaine.
  • Allows the BOP to award more good time credit to inmates.
  • Prohibits the use of restraints on pregnant inmates except in limited circumstances.
  • Expands the scope of another federal law, the Second Chance Act of 2007 (Pub. L. No. 110-199), providing grant funding to various programs focused on reentry.

The federal First Step law is in effect and has already made an impact on the federal prison population. The federal law shares characteristics with the North Carolina Justice Reinvestment Act of 2011 (which requires the use of a risk-needs assessment, described here back in 2012, to identify criminogenic needs, and created Advanced Supervised Release, described here, allowing an early release for inmates who complete risk reduction incentives in prison), but it has no direct impact on sentences imposed under state law.

The Proposed North Carolina First Step Act. In 2019, the North Carolina General Assembly considered a bill with a similar name: the North Carolina First Step Act (House Bill 511). The bill passed initial voting in the North Carolina Senate, but not in the House, and so it did not become law. It might be considered in the upcoming legislative session, but for now, any filing in state court seeking relief under the North Carolina First Step Act would be premature.

As to the substance of the proposed law, it would apply only to drug trafficking and conspiracy to commit drug trafficking. In fact, as currently written, it applies to only one type of trafficking: trafficking by possession, and only for the lowest quantity category of trafficking for the particular substance possessed by the defendant. Again, to be clear, these changes have not yet become law, but here is how the latest version of the bill would work if it did.

The law would operate similarly to our current law of attempted trafficking. It would allow the judge to reduce the otherwise mandatory fine, and sentence the defendant in accordance with the ordinary sentencing grid for the defendant’s class of offense and prior record level. The judge would first have to hold a hearing and give the district attorney an opportunity to present evidence, including evidence from law enforcement officers and other witnesses with knowledge of the defendant’s conduct. The judge would be allowed to depart from the trafficking sentencing rules only if he or she found all of the following:

  • The defendant has accepted responsibility for his or her criminal conduct;
  • The defendant has no prior felony convictions under G.S. 90-95;
  • The defendant did not use violence, threaten violence, or possess a firearm or other dangerous weapon in the commission of the offense;
  • The defendant has admitted that he or she has a substance abuse disorder and has successfully completed approved treatment;
  • Imposition of the mandatory minimum term of imprisonment would result in a substantial injustice and is not necessary to protect the public;
  • The defendant is being sentenced solely for trafficking or conspiracy to commit trafficking as a result of possession of a controlled substance; and
  • The defendant has provided all reasonable assistance in the identification, arrest, or conviction of any accomplices, accessories, co-conspirators, or principals (which sounds a lot like substantial assistance under G.S. 90-95(h)(5)—which, if found, would open the door to even broader relief under existing law than is allowed under this proposed law).

The current version of the law was written to apply mostly prospectively, but it also includes a provision expressly allowing eligible inmates already serving time for the lowest levels of trafficking by possession to file a motion for appropriate relief to seek a sentence modification along the lines described above. As written, the law says that the court in receipt of such an MAR “shall order that the person be resentenced” if the MAR is timely and the defendant is otherwise eligible.

If North Carolina’s First Step Act becomes law it would probably have a limited impact on the prison population. Drug traffickers make up about 7 percent of all inmates, and a small portion of that 7 percent are convicted solely for trafficking or conspiracy to traffic by possession, for the lowest trafficking quantity for their particular type of controlled substance, who have no other felony convictions under G.S. 90-95, and for whom the judge can make all of the findings outlined above.


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