How the First Step Act Passed a Divided Congress in 2018

On December 21, 2018, a few days before Christmas and with the government sliding toward a shutdown over a border wall, President Donald Trump sat down at a desk in the Oval Office and signed a criminal justice bill that had been declared dead more than once. Three days earlier the Senate had passed it 87 to 12. The House followed on December 20 by a margin almost as lopsided. The law was called the First Step Act, and the name was a confession as much as a title: everyone who negotiated it knew it was small next to the problem, and everyone who voted for it knew that the people it would help first were sitting in federal cells that night. What makes the story worth telling is not that the bill was perfect. It is that it passed at all, in that Congress, in that month, with that president, and the reasons it passed are still lying on the table for anyone willing to pick them up.

In short: The First Step Act passed in December 2018 because a narrow federal bill found sponsors in both parties, a White House that wanted a win, and conservative allies who framed prison reform as fiscal and moral common sense. It shortened some drug sentences and created early-release credits, but it touched only the federal system, which holds a minority of the country's prisoners. The lesson is about building coalitions without pretending the job is finished.

A bill that had already died once

The First Step Act did not come from nowhere. Its roots run back to a 2015 Senate bill called the Sentencing Reform and Corrections Act, written by Chuck Grassley of Iowa, then the Republican chairman of the Judiciary Committee, and Dick Durbin of Illinois, the chamber's second-ranking Democrat. That bill cleared committee with votes from both parties and then stalled. Senate Republican leaders did not bring it to the floor before the 2016 election, and some conservatives argued it would release dangerous people at the moment crime rates in some cities had ticked up.

When Trump took office in 2017, the prospects looked worse. His attorney general, Jeff Sessions, had been one of the Senate's most persistent critics of sentencing reduction, and early in his tenure he directed federal prosecutors to charge the most serious readily provable offense, which in drug cases usually meant the longest mandatory minimum. For a reform movement that had spent the Obama years building momentum, the door appeared to be closing.

What reopened it was a change in the bill's shape. In the House, Doug Collins, a Georgia Republican who served as an Air Force Reserve chaplain, and Hakeem Jeffries, a Brooklyn Democrat, wrote a narrower measure focused on what happens inside prison rather than on how long people are sent there. It passed the House in May 2018 with a large bipartisan vote. Many reform groups on the left criticized it at the time for leaving sentencing out, and several prominent Democratic senators said they could not support a prison bill without sentencing changes. That tension, between a smaller bill that could pass and a larger bill that could not, ran through the whole year.

The White House as an unexpected engine

The piece that people tend to forget is the role of the president's own family. Jared Kushner, Trump's son-in-law and senior adviser, had watched his father serve a federal prison sentence in the 2000s, and he made prison reform one of his projects in the West Wing. He courted conservative groups, met with Democrats, and pressed the president to back the bill. Whatever a reader thinks of Kushner's other work, the record shows that he spent real political capital on this.

That mattered because of how Senate floor time works. The majority leader, Mitch McConnell, controls what reaches the floor, and in the final weeks of a congressional session floor time is the scarcest thing in Washington. McConnell was cool to the bill for much of 2018 and said the Senate had other priorities. Supporters answered by counting votes in public, showing that well over sixty senators would support a combined prison-and-sentencing package. Once Trump publicly endorsed the compromise in November 2018, the question shifted from whether the votes existed to whether leadership would let them be cast. In mid-December, McConnell relented.

There was organized opposition inside the Republican conference. Senator Tom Cotton of Arkansas argued that the bill would let violent offenders out early and offered amendments to narrow which crimes could earn credits. Those amendments failed. The final tally, 87 to 12, meant that a large majority of Republican senators voted yes alongside every Democrat present.

What the law actually changed

Because the name suggests a gesture, it is worth being exact about the contents. The law is Public Law 115-391, and it did several concrete things.

On sentencing, it made the Fair Sentencing Act of 2010 retroactive. That earlier law had narrowed the gap between penalties for crack and powder cocaine, a gap that had fallen hardest on Black defendants, but it applied only to people sentenced after 2010. The First Step Act let people sentenced under the old ratio ask a judge for a reduced sentence. It also shortened some mandatory minimums for repeat drug offenses, cutting a mandatory life sentence for a third serious drug conviction to twenty-five years and a twenty-year minimum to fifteen. It widened the "safety valve" that lets judges sentence below a mandatory minimum for some lower-level drug defendants. And it ended the practice called stacking, in which a first-time offender charged with several counts of carrying a gun during a crime could receive consecutive twenty-five-year terms for conduct that happened on a single spree.

On prisons, it created a system of earned time credits. People who complete approved recidivism-reduction programs and productive activities can earn credits toward earlier transfer to prerelease custody, such as a halfway house or home confinement, though people convicted of a long list of offenses are excluded. It fixed a calculation error in how the Bureau of Prisons figured good-conduct time, so that people could earn the full fifty-four days a year Congress had intended. It restricted the use of restraints on pregnant women in federal custody. It directed the bureau to house people closer to home where possible. And it reauthorized the Second Chance Act, the 2008 reentry law that funds job training and housing help for people coming home.

None of this touched state prisons, where most incarcerated Americans are held. That is not a footnote; it is the central limit of federal reform.

The strongest case against it, and an answer

Opponents on the right made an argument that deserves a fair hearing. Their case was that federal drug sentences are long because federal drug cases often involve trafficking, that early release creates risk, and that the public should not bear that risk so that a bill can be called bipartisan. Some prosecutors and sheriffs' groups opposed the bill on those grounds.

Here is the answer reform supporters made, and I think it holds up. The earned-time system excludes a broad range of serious and violent offenses. Credits move people into supervised settings, not onto the street without oversight. And the evidence from the states, including conservative Texas, which overhauled its own system in 2007, suggested that treatment and supervision do more for public safety per dollar than additional years behind bars. Being serious about crime and being serious about what happens after release are not opposites.

Critics on the left had a different complaint: that the bill was too small, that it entrenched a risk-assessment tool that could carry racial bias into who earns credits, and that the Bureau of Prisons, chronically understaffed, would not carry it out well. Those warnings were partly borne out. Implementation was slow, the risk tool drew criticism, and federal courts later had to sort out disputes over how credits are calculated. The honest version is that the law helped thousands of people and also showed how much depends on the agency that has to run it.

Why this coalition held when others fell apart

The First Step Act is often described as a miracle of bipartisanship. That framing hides the more useful lesson, which is about structure.

First, the bill had champions in both parties who were invested in its success rather than in the issue as a talking point. Grassley and Durbin had worked on sentencing for years. Collins and Jeffries had put their names on the House version. Senators Mike Lee of Utah and Cory Booker of New Jersey had made the cause part of their identities. When a deal needed changes, there were people on each side who could vouch for it to their own colleagues.

Second, the outside coalition was unusual. Libertarian and evangelical groups, which had argued for years that mass incarceration wastes money and breaks families, stood beside civil rights organizations that had argued it entrenches racial injustice. Each could reach legislators the other could not. A Southern Republican who would never take a meeting with a civil liberties group might take one with a pastor from a prison ministry.

Third, the stakes for the parties were asymmetric in a helpful way. Democrats wanted relief for real people and could accept a partial bill. The president wanted a signing ceremony and a story about fairness that he could tell Black voters. Neither side needed the other to lose. That is rarer than it should be.

And fourth, and this is the part progressives sometimes find hardest to say aloud, the bill passed because reformers accepted half a loaf. The decision to fold some sentencing provisions into a prison bill, rather than hold out for the original sentencing package, split the reform movement. Some advocates believed the compromise sold out people the bill excluded. They were not wrong about who was excluded. But the people the law did reach got years of their lives back.

The people on the receiving end

Within weeks of the signing, federal judges began receiving motions under the retroactivity provision. The early beneficiaries were disproportionately Black men who had been sentenced in the 1990s and 2000s under crack cocaine penalties that Congress itself had since repudiated. Many had already served more than a decade. Some walked out to families who had been children when they went in.

Those stories are not abstractions to the families who lived them, and they should not be abstractions to anyone who votes. Every reduced sentence was also a reunion, a job search, a parole officer, a halfway house, and a long effort to rebuild a life in a labor market that often does not want people with records. The bill opened a door. What happens on the other side of the door is the work of states, counties, employers, landlords and neighbours.

It is also worth naming who the bill did not reach. People in state prisons, who make up the large majority of the incarcerated population, got nothing from it. People convicted of offenses on the exclusion list could not earn credits. And the federal system, after the law, still relies heavily on mandatory minimums that judges cannot go below in most cases.

What a second step would look like

Here is the argument, labelled as such. A second step should finish what the first one avoided: restore more sentencing discretion to federal judges, end the remaining crack-powder disparity entirely, and fund the Bureau of Prisons well enough to run the programs that earned-time credits depend on. Proposals along these lines, including bills to eliminate the crack-powder gap, have drawn bipartisan sponsors in recent Congresses without becoming law.

The incoming Congress, sworn in on January 3, 2027, will be controlled by Democrats in both chambers while a Republican president holds the veto. That is roughly the arithmetic of December 2018 turned around, and it means any federal criminal justice bill will again need both parties. The coalition that passed the First Step Act still exists in pieces: conservative groups that care about cost and redemption, faith communities, civil rights organizations, and a handful of members on each side who know the issue cold. Whether anyone puts those pieces back together is a choice, not a forecast.

What you can do

The coalition in 2018 worked because ordinary people pressed members who were persuadable, not just ones who already agreed.

• Tell your members where you stand. On the find-your-representatives page, enter your address to get your House member, both senators and your state legislators, with phone numbers, contact forms and their recent votes. A short call that names a specific bill does more than a general message.
• See what both parties have actually passed together. The common-ground tracker lists bills that drew support from both sides, which is a useful reminder that criminal justice reform has company.
• Support reentry where you live. The organizations directory lists nonprofits by cause in every state, including justice reform and legal aid groups that help people with records find work and housing.
• Follow the larger fight. The criminal justice reform topic page gathers reporting on sentencing, prisons and policing across the country, including the state systems the federal law never touched.

The First Step Act was signed on the eve of a government shutdown, by a president few reformers had expected to work with, after a year of being called hopeless. It is a good thing to remember the next time someone tells you a bill is dead.