Will the First Step Act Lead to a Second Step in Prison Reform?

The First Step Act was a real reform, but a limited one. On its own, it was expected to shrink the federal prison population only modestly. Stanford professor Keith Humphreys argued that a true second step would mean returning federal prisons to a small, focused role, and Congress would have to act again to get there.

A needed reform, but a limited one

The First Step Act became law on December 21, 2018. It passed both the House and Senate with large majorities from both parties, and President Trump signed it right away. That confirmed what most Americans already agreed on: federal prison reform is needed.

By definition, reform means correcting, amending, or removing an abuse, defect, or other wrong. Congress's support for the First Step Act suggests lawmakers believe something is wrong with the federal prison system, and they are right.

One big problem is size. At the end of 2016, federal prisons held about 189,000 people, or about 12.6 percent of all U.S. prisoners, according to the Bureau of Justice Statistics. The original article noted that this was up from 7.4 percent in 1980. The federal system's share of America's mass incarceration problem is significant.

The First Step Act tackles this by reducing some sentences and adding incentives for prison programs. The Act is broad in scope but limited in who can use it, and many federal prisoners are not eligible for its benefits. On its own, it was expected to shrink the federal prison population only modestly, at best. And even if the federal imprisonment rate went back to where it was before the population exploded, there would still be about seven times as many federal prisoners as a generation ago.

Update (October 2026): The First Step Act's main sentencing changes, such as the new limits on stacked § 924(c) gun penalties, are still not retroactive. In Rutherford v. United States (2026), the Supreme Court held that the gap between old and new sentences cannot by itself justify compassionate release. A true "second step" would still take new action from Congress.

What should federal prisons be for?

In a Washington Post opinion piece, Keith Humphreys, a Stanford professor of psychiatry and affiliated faculty member at Stanford Law School, looked at the growing federal prison population from a different angle. He asked a basic question: what is the federal government's role in law enforcement?

His answer: mostly not fighting violent crime, because the Constitution leaves most policing to the states. Humphreys noted that federal prisons hold only about 2 percent of U.S. prisoners serving time for violent crimes.

He argued federal law enforcement matters most in three areas:

1. Fighting state and local corruption.
2. Taking down large criminal organizations that are too big for local police.
3. Punishing crimes against the federal government itself.

Why he says a second step is needed

Humphreys estimated that even after the First Step Act and Obama-era reforms, the federal prison population would still be about seven times larger than in 1980. If those three areas are what the federal government should police, then the First Step Act does not go far enough. Is it fair to assume that seven times as many people today deserve federal prison for those kinds of crimes as in 1980? Hardly.

So he called on the same bipartisan coalition to aim higher. The goal, in his words: "return the federal prison system to its traditional role as an important–but small–part of the U.S. correctional system."

Source: Keith Humphreys, "The New Criminal Justice Law Will Modestly Shrink Prison Populations. Should We Go Further?" The Washington Post.

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