On December 21, 2018 President Trump signed the First Step Act into law. While there is much left to be done for criminal justice reform in this country, this recent legislative development is a welcome step towards increased fairness in the federal criminal justice system. Most significantly, the First Step Act reduced some of the draconian penalties for firearms and drug offenses, while also expanding access to programs such as compassionate release.
Some, but not all, of the First Step Act’s changes are retroactive, meaning that some of the reforms apply to those who have already been convicted and sentenced while others apply only to those who have not yet been sentenced. To find out if your case is eligible for resentencing under the First Step Act, you should speak to an experienced attorney who can assess your situation and guide you through the process. New York criminal defense attorney Harlan Protass has years of experience dealing with post-conviction litigation matters, and he is ready to take on your case.
Resentencing for Crack Possession Possible Because Fair Sentencing Act is Retroactive
The Fair Sentencing Act of 2010 reduced the inexplicably harsh penalties for possession and/or distribution of crack cocaine that were passed into law in the 1980s. Those changes, though, were not retroactive and therefore only applied to those sentenced for crack cocaine offenses after August 3, 2010 (the date on which the new law went into effect). Thus, the Fair Sentencing Act of 2010 did little to address the unjustly harsh prison terms imposed on thousands upon thousands of defendants before that date. Fortunately, Section 404 of the First Step Act makes the entirety of the Fair Sentencing Act retroactively applicable to any defendant sentenced for a crack cocaine offense before August 3, 2010.
Before the Fair Sentencing Act of 2010 went into effect, the sentence for possessing a given amount of crack cocaine was the same as possessing 100 times that amount of powder cocaine. For example, someone caught with 10 grams of crack would face the same 10-year penalty as someone caught with one kilogram of cocaine. The Fair Sentencing Act reduced that ratio from 100:1 to 18:1, meaning that most people convicted of possession and/or distribution crack cocaine in federal court are eligible for a lighter sentence.
The First Step Act Puts an End to the “Stacking” of Weapons Offenses
Section 403 of the First Step Act addresses one of the most notorious sentencing provisions on the books. 18 U.S.C. § 924(c) provides for the imposition of harsh mandatory minimum penalties for individuals convicted of discharging, using or even simply possessing a firearm during the commission of a violent felony or a drug offense – five years for any first offense, and a shocking 25 years for any “second or subsequent” offense. Any such penalties were required to run consecutive to – that is, after – the sentence imposed for the underlying crime of violence of drug offense.
Federal prosecutors used to be able to “stack” multiple violations of § 924(c) for purposes of sentencing because a first and “second or subsequent” offense could be charged at the same time, an interpretation of § 924(c) that the U.S. Supreme Court blessed in 1993. That type of application of § 924(c) exposed first-time offenders to the same penalties as repeat offenders. Thus, an individual charged with robbing three banks with a gun could also be charged with three violations of § 924(c) and, if convicted at trial, face sentences of five years, 25 years and 25 years running back-to-back-to-back on top of the actual sentence for the bank robberies. The “stacking” of those § 924(c) charges resulted in disproportionately harsh sentences that were widely disparaged not only by defense lawyers but also by federal judges.
The First Step Act eliminated the ability of federal prosecutors to “stack” multiple § 924(c) charges. It modified the language of § 924(c) to clearly state that the mandatory minimum sentence of 25 years for any “second or subsequent” offense only applies “after a prior conviction under this subsection has become final.” Thus, the enhanced mandatory consecutive penalty no longer applies to multiple § 924(c) violations charged at the same time. Unfortunately, though, the First Step Act did not make this change to § 924(c) retroactively applicable. Thus, you cannot apply for resentencing if you were previously sentenced for any number of “stacked” § 924(c) charges.
The First Step Act and Compassionate Release
One of the major aspects of the First Step Act is how it affects compassionate release. Before the Act, compassionate release was typically only available when prisoners developed extenuating or compelling circumstances that might warrant a reduced sentence – including advanced age or illness. According to the U.S. Department of Justice, however, the possibility of a prisoner being able to petition for such action expands greatly under the First Step Act.
Criteria for compassionate release under the Act include, but are not limited to:
- Prisoners with terminal medical conditions with a life expectancy of 18 months
- Prisoners who are 70 years or older, who have served at least 30 years of their sentence, and were convicted of an offense after November 1, 1987
- Prisoners whose family members (or children’s caregivers) have become incapacitated
It is important to note that this is not an exhaustive list. If you want to know more about the possibility of compassionate release for you or a loved one, contact Protass Law PLLC today.
Call Protass Law PLLC for Help Today
By making the Fair Sentencing Act retroactive, the First Step Act has made resentencing an option for thousands of offenders serving time in federal prison. If you believe that you or a loved one may be eligible for a resentencing hearing under the First Step Act, call NY criminal defense attorney Harlan Protass right away. He can inform you about the post-conviction options that may be available in your case. Call Protass Law PLLC today at (212) 455-0335, or reach out through the online form to learn more.