In First Step’s Wake, States Tinker With Mandatory Minimums

By RJ Vogt | July 21, 2019, 8:02 PM EDT

When President Donald Trump signed the First Step Act into law late last year, both sides of the political spectrum hailed it as the most consequential national prison and sentencing reform in years, particularly for its changes to mandatory minimum sentencing.

The legislation allows federal judges more discretion to skirt mandatory minimums for nonviolent drug offenders, an exception known as a “safety valve.” It also decreases mandatory minimums for some drug charges by five years, from 20 to 15, and changes the “three strikes” rule for those with three or more violent felony or drug trafficking convictions, from prescribing a life sentence to a 25-year one.

But even as 3,100 federal prisoners were due to be released on Friday thanks to its passage, the First Step Act is narrowly restricted to a criminal justice system that holds just a fraction of the country’s 2.3 million incarcerated people — more than 1.3 million other prisoners are out of federal reform’s reach, enmeshed in state justice systems instead.

According to Doug Berman, a professor at Ohio State University’s Moritz College of Law who runs the popular Sentencing Law and Policy blog, the First Step Act’s biggest contribution to sentencing reform could end up being the inspiration it gave to states. That includes eliminating mandatory minimum sentences at the state level for nonviolent offenders.

“Even though the federal system only represents 10% of our criminal justice systems, anything the feds do garners attention in the states,” he said. “It allows advocates to say, ‘Look, the folks at the national level thought this was a good idea. Let’s do our own version.’”

In fact, some states have actually been ahead of the curve on mandatory minimum sentencing reforms, going back to Michigan’s changes to minimums for drug sentences in the early 2000s. New York also repealed most of its drug mandatory minimums, as well as Louisiana, in the years leading up to 2018’s federal First Step Act.

Still, Berman said there’s no doubt that the federal effort, and Trump’s support in particular, cleared room for many lawmakers to consider their own versions of the national bill.

“It was an important signal to states that folks on both sides of the aisle, and even some of the most conservative voices including President Trump, were vocal supporters,” he said.

For example, a Florida Republican proposed the Florida First Step Act earlier this year. Initial versions of the bill would have allowed nonviolent offenders to be eligible for release after serving 65% of their sentences — a 20% reduction — and, like its federal counterpart, included a “safety valve” for judicial discretion.

North Carolina representatives proposed their own North Carolina First Step Act in March, similarly seeking a safety valve for drug trafficking crimes. In a statement supporting the bill, Molly Gill, vice president of policy for Families Against Mandatory Minimums, noted that the state’s current system can put people addicted to opioids and other drugs in prison for decades, “and judges can’t do anything about it.”

In New Jersey, state Attorney General Gurbir Grewal penned a July 15 op-ed calling on legislators to end mandatory minimums for nonviolent drug crimes. He took particular issue with current laws that “automatically render certain offenders ineligible for parole for long portions of their prison sentences,” arguing they needlessly bar the release of nonviolent inmates who no longer pose a threat to their communities.

But despite the increased interest many states have shown in reforming mandatory minimum laws, staunch resistance remains, particularly from local prosecutors associations.

Case in point: The Florida Prosecuting Attorneys Association successfully lobbied to block that state’s First Step Act from reducing time-served requirements, and the only mandatory minimum that was actually repealed related to a crime for selling horse meat.

“That’s not reform — it’s a bad joke,” Greg Newburn, FAMM’s director of state policy for Florida, said in a May statement condemning the missed opportunity.

Similar opposition has mounted in North Carolina, where the state’s Conference of District Attorneys and Sheriffs’ Association both oppose its First Step Act.

In Pennsylvania, where the state Supreme Court struck down many mandatory minimum sentencing laws four years ago, the Pennsylvania District Attorneys Association has supported legislation to replace some mandatory minimum sentences for crimes like child rape, assault with a deadly weapon and high-level drug trafficking.

Greg Rowe, director of legislation and policy for the PDAA, told Law360 that his organization’s support stems from the notion that such minimums can help keep “the most dangerous offenders off the streets.”

“They provide that similar crimes committed by people with similar records will be treated similarly,” he said.

Rowe added that on the topic of nonviolent offenders, there’s actually more common ground between prosecutors and reformers than many people realize. He called safety valves for judicial discretion “a concept [the PDAA] would be comfortable in discussing,” and also said mandatory minimums typically don’t apply to first-time offenders with small quantities of illegal drugs, instead targeting “kingpins” who “sell drugs for profit.”

But Gill told Law360 that one proposal in Pennsylvania’s Senate — which requires a two-year mandatory minimum for those trafficking less than 1 gram of fentanyl-containing drugs — would equate people who fund their addictions by selling to friends with the dangerous kingpins who bring fentanyl into the state.

“You have a crime du jour effect,” she said. “Whatever the hot crime is that day, there will inevitably be some lawmaker who introduces a mandatory minimum. Right now it’s opioid offenses, and fentanyl specifically.”

Gill added that, since the 2015 ruling invalidated much of Pennsylvania’s mandatory minimums, violent and property crime rates have continued to decline to a low not seen since 1970. Prison populations have dropped for five years straight, and guilty plea rates have remained relatively stable.

“If mandatory minimum sentences fixed America’s drug problems, we wouldn’t have an opioid crisis today,” she said.

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--Editing by Katherine Rautenberg.