In 2018, Congress passed the First Step Act with rare bipartisan support. Hailed as “the most significant criminal justice reform bill in a generation,” the basic premise of the act was straightforward: Federal sentences had grown too harsh, and, not coincidentally, were imposed in racially disparate ways. Congress therefore concluded that many of the people serving these draconian sentences deserved a second chance. In the words of then-Chairman of the Senate Judiciary Committee Senator Chuck Grassley: The First Step Act “addresses unfairness in prison sentencing and revises policies that have led to overcrowded prisons and ballooning taxpayer expenses.” And as President Donald Trump declared when signing the act into law: “Americans from across the political spectrum can unite around prison reform legislation that will reduce crime while giving our fellow citizens a chance at redemption.”
Since then, the Supreme Court has done what it can to make the First Step Act smaller.
Take 2023’s Pulsifer v. United States, where the court narrowed the act’s expansion of the federal “safety valve,” a provision of the act that allows sentencing courts to forgo imposing mandatory minimum sentences if defendants meet certain criteria. The majority read the provision to exclude a substantial class of defendants, which, as Justice Neil Gorsuch charged in his dissent, guaranteed that “thousands more people in the federal criminal justice system will be denied a chance—just a fair chance—at an individualized sentence.” Gorsuch made clear that this was so not because the statutory text demands it, but because the court adopted the government’s policy-driven argument for a narrower reading – one that limited district courts’ discretion to grant relief and curtailed the act’s overall reach.
Then late last month the court decided two First Step Act cases involving compassionate release, which permits certain incarcerated individuals to seek early release or a sentence reduction based on “extraordinary and compelling reasons.” In both cases, the court once again limited the First Step Act’s reach, this time by cabining what qualified as “extraordinary and compelling.”
In Rutherford v. United States, the question was whether prisoners serving sentences under the old “stacking” regime – where courts were required to impose mandatory minimums consecutively, dramatically increasing individuals’ sentences – could cite the resulting elimination of such “stacking” as grounds for compassionate release. Had Rutherford been sentenced today, his mandatory minimum would have been 14 years shorter than it was (in the companion case the court resolved, Carter v. United States, Carter’s mandatory minimum would have been 21 years shorter). The court held that such a dramatic disparity in sentence could not serve as a ground for compassionate release, reasoning that it was a backdoor attempt to make the First Step Act retroactive, when Congress intended the act to apply only prospectively. Justice Sonia Sotomayor retorted in her dissent that “nothing in the First Step Act specifically addresses what courts may consider when deciding whether a defendant is eligible for a sentence reduction.” As such, she continued, the majority opinion “conjure[d] categorical limitations” on the compassionate release provision that “neither Congress nor the [Sentencing] Commission imposed.”
The same day, in Fernandez v. United States, the court held that serious doubt about a conviction’s integrity cannot qualify as an “extraordinary and compelling” ground for compassionate release either. This time, the court concluded that the result it reached was necessary to ensure that federal prisoners could not do an end run around the habeas statute, which specifically deals with prisoners’ abilities to challenge their convictions. Sotomayor, although concurring in the judgment, again accused the majority of “creating an atextual limitation found nowhere” in the act. In light of this, Justice Ketanji Brown Jackson dissented, and described the majority opinion as “an unnecessary rewriting of the statute Congress wrote and an unwarranted revision of the compassionate-release scheme Congress intended to establish.”
So the First Step Act has been in effect for less than seven and a half years, and a sharply divided Supreme Court has already decided three cases limiting its reach. There are counterpoints. In Concepcion v. United States, decided in 2021, a 5-4 court held that district courts are allowed to consider intervening changes of law or fact when reducing a sentence under the act. And last term, in Hewitt v. United States, a 5-4 court held that the act applied to defendants who were sentenced before the act went into effect but whose sentences were then vacated after. But those decisions increasingly read like they are fighting the tide. (A further data point is coming soon, as the court will decide yet another First Step Act case, Maxwell v. Thomas, next term, on the ability of prisoners to transfer to a halfway house or home confinement earlier under the act.)
Congress was not subtle about what it meant to do with the First Step Act. It wanted to reduce excessive sentences and expand the mechanisms for relief for those serving those harsh sentences. Yet the bulk of the court’s First Step Act jurisprudence is at war with that purpose, as the dissents in these cases explain in different ways. Certain members of Congress feel the same. As Senator Dick Durbin lamented after the court’s most recent rulings: The Supreme Court has “significantly weakened a landmark, bipartisan criminal justice reform law in defiance of Congressional intent.”
The court’s neutering of a signature piece of federal legislation should give us pause. Congress barely legislates anymore. Yet the First Step Act passed with overwhelming bipartisan support. It reflected a considered congressional judgment that federal sentences had become too harsh and that the people serving them, who are disproportionately people of color, deserved a shot at relief. If there is a statute that embodies the democratic process deserving of respect, it is this one.
And yet, in case after case, the court has whittled the act down, leaving thousands of its intended beneficiaries without the opportunity for relief that Congress thought they should have. And even though this court claims to be textualist, as the dissents in each of these cases make clear, none of the outcomes were compelled by the text. Instead, the court, in limiting the First Step Act, seems more driven by a general distrust of district courts and what they might to do with less-bounded discretion, and an overarching concern of the act becoming a “huge loophole” for the release of those who have been convicted of crimes – regardless if Congress has allowed for just that.
That should worry anyone hoping for more ambitious criminal justice reform. If the court is willing to hollow out the popular piece of legislation that was the First Step Act, what happens when Congress tries something more sweeping and less bipartisan? The First Step Act was the easy case. The court’s treatment of it is not an encouraging sign for any attempt at a second step.
