The First Step Act and Individualized Review: Must Judges Apply the 18 U.S.C. § 3553(a) Factors to Section 404 Petitioners?

March 4, 2022

In 2010, the U.S. Congress amended the notorious mandatory minimum sentencing structure for crack cocaine offenses in response to the decades of harm it had caused. As the amendment was not retroactive, Congress passed the First Step Act of 2018 to allow prisoners incarcerated before 2010 to petition their original sentencing court for discretionary relief based on the new penalties. However, what exactly these courts must do when deciding whether to grant relief has divided the circuits. Some circuits require an up-to-date consideration of defendants’ individual mitigating circumstances and whether their sentences are the minimum necessary to satisfy the purposes of sentencing, as courts must do at initial sentencing under 18 U.S.C. § 3553(a). Other circuits permit such consideration but refuse to require it, finding a mandatory approach at odds with the discretionary nature of the First Step Act itself.

This Note discusses the text and intent of the First Step Act, including the historical context reflected by the legislation, as well as the importance of 18 U.S.C. § 3553(a). It then examines the reasoning employed by each side in deciding whether to require consideration of 18 U.S.C. § 3553(a) in First Step Act proceedings. Ultimately, this Note concludes that the First Step Act should be read to require consideration of § 3553(a) because that approach better promotes the purpose of the Act without contravening its text and provides considerable benefits in practice.

March 2022

No. 4