First Step Implementation Act of 2021 Announced to Senate

UPDATE JUNE 18, 2021:  In a statement, Senator Chuck Grassley indicated that the First Step Implementation Act had made it out of committee and was going to the Senate Floor:

WASHINGTON – Today, the Senate Judiciary Committee voted to advance two bipartisan criminal justice reform bills authored by U.S. Senate Majority Whip Dick Durbin (D-Ill.), Chair of the Senate Judiciary Committee, and U.S. Senator Chuck Grassley (R-Iowa), Ranking Member of the Senate Judiciary Committee —the Prohibiting Punishment of Acquitted Conduct Act of 2021 and the First Step Implementation Act of 2021.

In the same way that the Smarter Sentencing Act of 2021 was introduced on Friday March 26, so also was an act introduced called the First Step Implementation Act of 2021.  You can find the text of the bill here.

This act, if passed, will do several things:

Retroactive Application of the FIRST STEP Act Regarding 924(c) Cases and 851 Enhancements

1.  Amend the places in 21 USC 841 and 960(b)(3) that say “felony drug offense” and replace them with “Serious Drug Felony or Serious Violent Felony”

2.  It applies sections 401 (the 851 relief) and 403 (stacked 924c relief) of the FIRST STEP Act retroactively.

3.  Indicates previously sentenced inmates will be able to expressly seek relief pursuant to the 3553(a) factors:

A court that imposed a sentence for a covered offense may, on motion of the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court, impose a reduced sentence as if sections 401 and 403 of the First Step Act of 2018 (Public Law 115-391; 132 Stat. 5220) and the amendments made by subsection (b) of this section were in effect at the time the covered offense was committed if, after considering the factors set forth in section 3553(a) of title 18, United States Code, the nature and seriousness of the danger to any person, the community, or any crime victims, and the post-sentencing conduct of the defendant, the sentencing court finds a reduction is consistent with the amendments made by section 401 or 403 of the First Step Act of 2018 (Public Law 115-391; 132 Stat. 5220) or with subsection (b) of this section

This mandates the prosecutors prepare information about the incarcerated person's prior conduct.  Those of you who have filed compassionate release motions would know anyway:

For each motion filed under subsection (b), the Government shall conduct a particularized inquiry of the facts and circumstances of the original sentencing of the defendant in order to assess whether a reduction in sentence would be consistent with the First Step Act of 2018 (Public Law 115-391; 132 Stat. 5194) and the amendments made by that Act, including a review of any prior criminal conduct or any other relevant information from Federal, State, and local authorities.

In other words the court will consider whether the person is an appropriate candidate for relief under 3553(a) The prosecutors will conduct a particularized inquiry of the facts and circumstances of the original sentencing including any prior criminal conduct.

Safety Valve Reform in the FIRST STEP Implementation Act

Section 102 of the FIRST STEP Implementation Act indicates the following:

SEC. 102. MODIFYING SAFETY VALVE FOR DRUG OFFENSES.

(a) Amendments.--Section 3553 of title 18, United States  Code, is amended--

(1) by redesignating subsection (g) as subsection (h); and

(2) by inserting after subsection (f) the following:

``(g) Inadequacy of Criminal History.—

``(1) In general.--If subsection (f) does not apply to a defendant because the defendant does not meet the requirements described in subsection (f)(1) (relating to criminal history), the court may, upon prior notice to the Government, waive subsection (f)(1) if the court specifies in writing the specific reasons why reliable information indicates that excluding the defendant pursuant to subsection (f)(1) substantially overrepresents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes.

"(2) Prohibition.--This subsection shall not apply to any defendant who has been convicted of a serious drug felony or a serious violent felony as defined in paragraphs (57) and (58), respectively, of section 102 of the Controlled Substances Act (21 U.S.C. 802).''.

As a reminder, 3553(f) indicates the following:

…the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that—

(1) the defendant does not have—

(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;

(B) a prior 3-point offense, as determined under the sentencing guidelines; and

(C) a prior 2-point violent offense, as determined under the sentencing guidelines;

If a person has more than 4 criminal history points (excluding any criminal history points from a one point offense), or as a prior 3-point offense or a prior 2-point violent offense then under normal circumstances they would be ineligible for the safety valve.

However, according to this, the court can still grant safety valve relief if the court states in writing why the court believes that the criminal history was overrepresented the seriousness of the crimes.

This portion of the bill does not have any retroactive portions. If passed,  I would imagine that as long as the Sentencing Commission has not said otherwise that this would be eligible for 3582 relief.

Like the Smarter Sentencing Act, this is now in the hands of the Senate Judiciary Committee. We will let you know when we have updates.  Once the bill is passed, we will be able to answer specific questions about this bill and how it can affect people.