The Senate's 87-12 Vote on the First Step Act

I am pleased to report that the First Step Act passed the U.S. Senate on December 18, 2018, by a vote of 87-12. It now needs one more House vote before it can go to the President.

Update (October 2026): The House passed the bill on December 20, and the President signed the First Step Act into law on December 21, 2018 (Pub. L. 115-391). Our promised analysis of the final law is our section-by-section summary, updated through October 2026.

The bill faced a last-minute test from an amendment offered by Senators John Kennedy (R-LA) and Tom Cotton (R-AR). The Senate voted on it in three parts and rejected each one with votes from both parties. The votes were 67-32, 66-33, and 62-37 (Senate roll call votes).

The Senate also adopted, by voice vote, an amendment from Senators Ted Cruz (R-TX) and James Lankford (R-OK). It added more offenses to the list of crimes that cannot earn time credits (Senate floor log). The Senate then passed the bill.

Next: a final vote in the House

The bill now goes back to the House for a vote, which could happen this week. If the House passes it, the President could sign it before Christmas.

I will have a detailed analysis of the final bill passed by the Senate, most likely by this coming Sunday.

What the 87-12 vote became

The note above is the report from December 18, 2018, the day the Senate passed the bill. The House agreed on December 20, and the President signed the First Step Act on December 21, 2018. The public law is Pub. L. 115-391. The section-by-section account of the law as it stands is our First Step Act summary. What follows is the sentencing structure that vote locked in, checked against the statutes, not against the hopes of that week.

The Kennedy-Cotton amendment, rejected in the three votes described above, would have changed the bill on the way to passage. It did not. The Cruz-Lankford amendment did pass, by voice vote, and it added offenses to the list of crimes that cannot earn time credits. The enacted list is 18 U.S.C. § 3632(d)(4)(D). If a conviction is on that list, program time does not produce First Step Act credits, even when the person is otherwise programming.

Good conduct time and earned credits

The Act changed good conduct time. Under 18 U.S.C. § 3624(b), a person serving more than one year, other than life, may receive up to 54 days of credit for each year of the sentence the court imposed, for exemplary compliance with prison rules. The credit is tied to the sentence imposed, not merely to the days already served. The statute said the new wording would take effect when the Attorney General released the risk and needs assessment system. The Justice Department's later announcement describes the releases that followed. Our post on why the good-time fix did not empty prisons in December 2018 explains the delay.

Time credits are a second system. Under § 3632(d)(4), participation in approved programs earns 10 days of credit for every 30 days, plus 5 more days if the person is scored minimum or low risk on two assessments in a row. Credits apply toward prerelease custody or toward starting supervised release up to 12 months early, under § 3624(g). They are not a grant of parole. Federal parole does not exist for offenses committed on or after November 1, 1987. The overview of every path is early release from federal prison.

Sentencing changes that were not retroactive, and one that was

Three sentencing changes drew the most attention in December 2018. They do not all reach old judgments.

Section 404 lets a court reduce a sentence for a "covered offense": a crack cocaine offense committed before August 3, 2010, whose penalties the Fair Sentencing Act of 2010 lowered. That section applies to sentences already imposed. The motion practice is discussed on our § 3582 page.

The wider safety valve and the end of § 924(c) "stacking" were written to apply going forward. Stacking is the practice of adding a 25-year minimum for a second § 924(c) count in the same case. After the Act, the 25-year minimum in § 924(c)(1)(C) applies when the later violation occurs after a prior § 924(c) conviction has become final. In Hewitt v. United States, 606 U.S. 419 (2025), the Supreme Court held that if a pre-Act sentence is vacated, a sentence "has not been imposed" for purposes of the Act's effective-date rule, so the lower penalties apply at the resentencing. The opinion is the source for that holding. A stacking gap, standing alone, is not a reason for compassionate release. Rutherford v. United States, 608 U.S. 454 (2026), held that when Congress declines to make a sentencing change retroactive, the resulting disparity cannot serve as an extraordinary and compelling reason under § 3582(c)(1)(A).

The safety valve, 18 U.S.C. § 3553(f), still lets some drug defendants be sentenced without regard to a mandatory minimum. Pulsifer v. United States, 601 U.S. 124 (2024), read the criminal-history test so that a person is eligible only if none of the three disqualifiers applies. The opinion controls that question. Our safety-valve guide applies it in plain language.

Guidelines, the presentence report, and the hearing

The First Step Act did not repeal the Sentencing Guidelines. A judge still calculates a range and then applies § 3553(a). Since November 1, 2025, that is a two-step process under USSG §1B1.1. Amendment 836 removed nearly all departures. A sentence outside the range is a variance. Substantial assistance remains at §5K1.1 on a government motion, and it is no longer called a departure. See departures and variances and how the guidelines work.

The presentence report is still the document that states the range, the drug quantity or the gun counts, and the criminal history that drives the safety valve. Federal Rule of Criminal Procedure 32 requires disclosure at least 35 days before sentencing and written objections within 14 days. If a count is a "covered offense," or if a § 924(c) count is being stacked, that dispute belongs in the objections and at the sentencing hearing, where the defendant has a right to speak.

After the judgment, the paths are the ones the statutes name. An appeal is due in 14 days under Federal Rule of Appellate Procedure 4(b). A motion under 28 U.S.C. § 2255 has a one-year deadline and limited grounds. A retroactive guideline cut, a § 404 motion, and compassionate release are separate requests under § 3582. Our guide to sentence reductions lines them up. None of them is a promise that a particular sentence will change.

This page is general information about a federal statute. The 2018 paragraphs above are the contemporary report. The sections after them describe the law that followed the vote.