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

A Necessary Reform

The First Step Act-Paves-Way-for-Prison Reform

The First Step Act, an initiative aimed at federal prison reform, was recently enacted into law. It passed both the House and Senate with overwhelming support. President Trump immediately signed the legislation. Thus, the Act affirms the popular consensus of the American public that some form of federal prison reform is needed.

By definition, reform is the correction, amendment, or removal of an abuse, defect, corruption or some other wrong that exists. Congressional support of the First Step Act suggests that lawmakers believe there is something wrong with the federal prison system.

Hint:  There is.

One aspect of the problem is the size of the federal prison population. As of 2016, Federal prisons house about 200,000 individuals. This is 12.6 percent of the nation’s total prison population. That’s up from 7.4 percent in 1980. The federal prison system’s contribution to America’s mass incarceration problem is significant.

The First Step Act takes aim at this issue by reducing some criminal sentences and promoting incentive-based rehabilitative programming for eligible inmates. This act is comprehensive in its scope but limited in its eligibility. The legislation excludes many federal inmates from reaping its benefits. The First Step Act will, at best, result in a minimal reduction in the federal prison population. Moreover, even if the rate of federal imprisonment returned to what it was before the federal prison population exploded, there would still be about seven times as many federal inmates as there were a generation ago.

The Role of the Federal Government

In a recent opinion piece published in the Washington Post, Stanford professor Keith Humphreys looked at the ballooning federal prison population from a different perspective. Humphreys, a professor of psychiatry and affiliated faculty member at Stanford Law, asks a very basic question: What is the federal government’s role in law enforcement to begin with? It’s not to combat violent crime.  According to Humphreys, the Constitution assigns most law enforcement powers to the states. That’s why federal prisons hold only about 2 percent of all U.S. prisoners serving time for a violent crime.

Instead, Humphreys argues that the federal law enforcement apparatus is important in three areas. First, federal agencies can and should combat state and local corruption. Second, federal authorities are in a good position to take down large criminal organizations that overwhelm state and local law enforcement. Finally, and rather obviously, federal law enforcement should investigate and punish crimes specifically against the federal government.

If we assume that these are the kinds of offenses properly policed by the federal government, then the First Step Act doesn’t go far enough.  According to Humphreys, the First Step Act and other Obama-era reforms will reduce the federal prison population, but it will still be seven times greater than it was in 1980. Is it fair to assume that the number of those that deserved sentences for those crimes that the federal government should be concerned with is seven times higher than it was in 1980?  Hardly.

The First Step Act Paving the Way for a Second Step

As such, a second step is necessary. The broad and bipartisan coalition that supported the First Step Act should aim higher, says Humphreys. The goal: “return the federal prison system to its traditional role as an important–but small–part of the U.S. correctional system.”

Src: “The New Criminal Justice Law Will Modestly Shrink Prison Populations. Should we go Further?” Keith Humphreys. WashingtonPost.com

About Brandon Sample

Brandon Sample is an attorney, author, and criminal justice reform activist. Brandon’s law practice is focused on federal criminal defense, federal appeals, federal post-conviction relief, federal civil rights litigation, federal administrative law, and the Freedom of Information Act (FOIA).


  1. Rene'e Valentine on December 29, 2020 at 7:29 am

    I am in need of all the legal advice I can get regarding my son’s case. He was arrested for selling drugs and a weapon charge to an ATF CI. He is facing a 17 yr sentence and all his lawyer is saying is the only way he can get less time is to roll on someone. He is saying ASU are not bending if anything they will ask for more time LIFE. This is his 1st Federal Offense. He is 23 yrs old with a 3 yr old son and seeing what I am have they would benefit being together rather than apart. In this day and time it’s imperative that as his dad he is as consistent as possible in his life. His lawyer acts like he is scared to speak up, speak on his behalf using what’s happening in the world as a part of his defense. He is sitting on his hands with his feet in his mouth and his ears over his eyes. Please 🙏 help us. I need these First and Second act programs explained to me where I can understand and comprehend them to better relate to our situation. My number is 9199394528.

  2. Rene'e Valentine on December 29, 2020 at 7:52 am

    I also have his charges on paper and will be going to see the motion of discovery early next week. This is so his lawyer can convince me to get my son to take the plea or work for the feds, not to fight for his life behind a video monitor. This is insane, in one breath he says I will do whatever your son wants and the next he says there’s nothing we can do they are not budging, this dude has no fight I can barely have a conversation with him without chastising him. Oh my goodness please help us. My husband /his dad seen the motion of discovery and we are still fighting for our baby boy of 9.

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