A Layman’s Analysis of the First Step Act and Historical Crack Cocaine Incarceration Data

This is a data-based layman’s analysis of the First Step Act, which is signed into federal law by President Trump on December 21, 2018. Specifically, it brings to question a “right-wing talking point” that the First Step Act has done more for Black Americans than previous administrations has done (here’s looking at you Obama and Biden).

Spoiler: The data and historical analysis shows that the First Step Act is negligible in reducing the rate and number of incarcerated Black Americans (But hey something is better than nothing!). If anything, it appears to carry forward the momentum from the Fair Sentencing Act of 2010, signed into federal law by President Obama on August 3, 2010, which is influenced by the “Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007” introduced and sponsored by Biden.

Disclaimer: I’m neither a data scientist nor a political analyst. While I’d like to think of myself as more of a “centrist,” I voted Bush — twice, Obama — twice, Sanders — twice (although that didn’t work out, so I voted Hillary once), and plan on voting Biden 2020.

But first, what is the First Step Act?

“The [First Step Act] was the culmination of a bi-partisan effort to improve criminal justice outcomes, as well as to reduce the size of the federal prison population while also creating mechanisms to maintain public safety.” — Federal Bureau of Prisons https://www.bop.gov/inmates/fsa/overview.jsp

“This legislation reformed sentencing laws that have wrongly and disproportionately harmed the African American community” — 2019 State of the Union Address

Specifically, the First Step Act of 2018 Resentencing Provisions Retroactivity Data Report (January 2020) stated the following:

• 2,387 cases, dating back to 1990, have been granted a reduction of sentence because of the First Step Act.
• 2,172 of the 2,387 (90.99%) reduction of sentence were granted to incarcerated Black Americans.

Note: The data lacks specificity as to what kind of crimes were granted reduced sentence to Black Americans under the First Step Act. However, two examples specifically called out in the 2019 State of the Union Address were of non-violent drug offenders Alice Johnson and Matthew Charles. Because of this, the rest of this analysis focuses on drug-related incarceration data and sentencing laws.

General outline of this analysis:

• Drug-related incarceration data
• Timeline and history leading to First Step Act
• Effect and Implementation of First Step Act on incarceration rate and numbers of Black Americans

Drug-related Incarceration Data

The following data is pulled manually (and tediously) from 24 years worth of data from https://www.ussc.gov/research/sourcebook/archive (Look for the section titled “Race of Drug Offenders in Each Drug Type”)

Figure 1. Comparison of Drug Offenders by Race 1996–2019. Raw data manually compiled can be found at https://gist.github.com/hanselong/cfde7f92ccbf03ac6aedd0989bdf7635

Facts to note from Figure 1:

• Comparable numbers between Black and White Americans incarcerated for drug-related offenses.
• Downward trend of drug-related incarcerations for Black Americans from 2008–2016 (The “Obama years”).

Note also that the First Step Act “made the provisions of the Fair Sentencing Act of 2010 (P.L. 111–220) retroactive so that currently incarcerated offenders who received longer sentences for possession of crack cocaine than they would have received if sentenced for possession of the same amount of powder cocaine before the enactment of the Fair Sentencing Act can submit a petition in federal court to have their sentences reduced.” — Federal Bureau of Prisons https://www.bop.gov/inmates/fsa/overview.jsp

So let’s take a look at the race distribution between incarcerated powder and crack cocaine offenders.

Slight Aside: The fact that the majority of drug-related offenders are Hispanic Americans are currently irrelevant for the current analysis/discussion of the First Step Act as “only” 100 out of 2,387 (4.19%) reduction of sentence were granted to incarcerated Hispanic Americans. Why such a high number of Hispanic Americans incarcerated for drug-related offenses? And why so few with reduced sentence under the First Step Act? Those questions are for another analysis another time.

Figure 2. Comparison of “Powder Cocaine” Offenders by Race 1996–2019. Raw data manually compiled can be found at https://gist.github.com/hanselong/258c9fa223bd3beeb8240699112606ee

Facts to note from Figure 2:

• Between 15% to 20% of powder cocaine offenders were White Americans from 1996 to 2012. This suddenly sharply dropped to ~10% and then to ~6% more recently.
• Between 24% to 32% of powder cocaine offenders were Black Americans from 1996 to 2016.

Slight aside: What happened in 2012 that reduced by half the number of incarcerated White Americans for powder cocaine in following years? Does this mean that White Americans used/sold fewer powder cocaine? Or does it mean that there fewer White Americans were arrested for powder cocaine? (Unable to draw a conclusion from the data)

Figure 3. Comparison of “Crack Cocaine” Offenders by Race 1996–2019. Raw data manually compiled can be found at https://gist.github.com/hanselong/1e03cbdd56bc5170de1b8f8b69089063

Facts to note from Figure 3:

• Between 4% to 10% of crack cocaine offenders were White Americans from 1996 to 2012.
• Between 78% to 86% of crack cocaine offenders were Black Americans from 1996 to 2012.
• Sharp downward trend in number of Black American crack cocaine offenders from 2008 to present.

Some questions to ponder (Elaborated below in the “Timeline and history leading to First Step Act” section):

• Why is there such a large percentage of Black Americans incarcerated for crack cocaine offenders in particular?
• What happened in 2008 to drastically reduce the number of Black Americans incarcerated for crack cocaine offenses?

Spoiler: It’s likely because of the “Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007” introduced and sponsored by Biden, followed by the Fair Sentencing Act of 2010, signed into federal law by President Obama on August 3, 2010. But I’m getting ahead of myself — let’s look at the history of Crack Cocaine sentencing, dating back to the “Anti-Drug Abuse Act of 1988” leading up to the First Step Act signed into law by the current administration in December 2018.

Timeline and history leading to First Step Act

For the sake of historical clarity, the following is a pseudo- reverse-chronological order of events relating to drug-related crimes that I consider to be relevant and notable, tracing back from the First Step Act.

First Step Act of 2018

• Introduced and sponsored by Rep. Douglas Collins [R-GA-9]on May 7, 2018.
• Democratic senators rejected the initial version of the First Step Act because, among other things, it lacked the retroactive crack cocaine sentence reduction that Democrats have been trying to pass since the Fair Sentencing Act of 2010 that was signed into law by President Obama (See e.g. Sentencing Reform and Corrections Act 2015 and 2017).
• The inclusion of the retroactive crack cocaine sentence reduction into the final form of the First Step Act is directly responsible for the ~91% reduction of sentence granted to 2,172 incarcerated Black Americans.
• Conclusion: While Republicans were the first to introduce and sponsor the First Step Act, it was Democrats who fought for reduced sentence of thousands of Black Americans to be included in the First Step Act of 2018

Additional Conjecture:

• The First Step Act is dubbed “Kushner’s Reform Bill” by the Washington Examiner (widely regarded as conservative media). Wikipedia elaborated on this a bit more (but hey it’s Wikipedia so who knows if it’s accurate?):

“Though President Donald Trump was initially skeptical of the legislation, intense lobbying by his son-in-law and senior adviser Jared Kushner — whose views on criminal justice reform are believed to be influenced by his father’s conviction and incarceration — eventually persuaded President Trump to back the bill and push for a floor vote in 2018.[12] Kushner’s efforts included reaching out to the Murdoch family (who own Fox News) to encourage positive coverage, appearing on Fox, securing Vice President Mike Pence’s support, scheduling policy time discussions with President Trump, and arranging meetings with celebrities like Kanye West and Kim Kardashian and media players like Van Jones to lobby President Trump.[35][12]” — https://en.wikipedia.org/wiki/First_Step_Act

• While the First Step Act was signed into law on December 2018 and Congress has authorized $75 million for each fiscal year from 2019 to 2023, it received zero funding from the current administration in 2019. It seems that it was subsequently funded for 2020 onwards but it’s unclear how the money is used to support the First Step Act. See e.g. https://www.whitehouse.gov/wp-content/uploads/2020/02/budget_fy21.pdf
• Additionally, “While sentence reductions have been approved by judges, the Department of Justice (DOJ) has attempted to block hundreds of eligible beneficiaries.” — https://www.sentencingproject.org/publications/one-year-after-the-first-step-act/

Fair Sentencing Act of 2010

• The 1995 Report to the Congress: Cocaine and Federal Sentencing Policy written by the U.S. Sentencing Commission stated: “Federal sentencing data leads to the inescapable conclusion that Blacks comprise the largest percentage of those affected by the penalties associated with crack cocaine” and called out the racial disparity nature of the mandatory minimum penalties enacted in 1986 and 1988 for sentencing federal cocaine offenses as such:

Table 1. Comparison of amount of Crack vs. Powder Cocaine needed to trigger mandatory minimum penalty for drug-related imprisonment — enacted by the Anti-Drug Abuse Act of 1986 and 1988 (Reagan’s Republican administration).

“Under the 1986 Act, a person caught holding a few small bags of crack rocks, even if for her own use, faced the same penalty as a major powder cocaine carrier.” — https://www.criminaldefenselawyer.com/resources/crack-vrs-powder-cocaine-one-drug-two-penalties.htm

Note: The 1995 report by U.S. Sentencing Commission also commented on the marketability of Crack cocaine among young Black Americans by stating “Crack cocaine’s ease of manufacture and relatively low cost-per-dose have made it more readily marketable than powder cocaine to large numbers of lower income people. For example, crack can be packaged efficiently and marketed in single-dosage units weighing 0.1 to 0.5 gram and priced from $5 to $20. In contrast, powder cocaine generally is sold by the gram (i.e., five to ten doses) for between $65 and $100 per gram.”

• The Fair Sentencing Act of 2010 signed into federal law by President Obama on August 3, 2010 revised the sentencing guidelines for federal cocaine offenses to be *slightly* less disparate:

Table 2. Comparison of amount of Crack vs. Powder Cocaine needed to trigger mandatory minimum penalty for drug-related imprisonment — remedied by the Fair Sentencing Act of 2010 (Obama’s Democratic administration).

Additional Conjectures:

Why didn’t the Obama administration simply removed the discrepancy altogether, especially given the clear data that the disparate sentencing adversely affected young Black Americans in particular?

In 2007, there were two proposed criminal law reform bills that eventually guided the creation of the Fair Sentencing Act of 2010:

• Fairness in Drug Sentencing Act of 2007, Orrin Hatch (R-UT), proposing to set the 5-year mandatory minimum penalty to 25 grams for crack cocaine.
• Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007, Joe Biden (D-DE), proposing to abolish the disparity between crack and powder cocaine sentencing altogether (based on a 2007 U.S. Sentencing Commission’s recommendation that the disparity should be rescinded).

Given that the Fair Sentencing Act of 2010 was eventually set to 28 grams of crack cocaine for mandatory 5-year sentence (more than 25 grams but far less than 500 grams), presumably this came about because ultimately the bill needed to have bipartisan support to pass, and Republican senators were opposed to completely abolishing the disparity as Biden proposed.

It is also worthwhile to note that many Republicans/conservatives opposed the reduced disparity between crack and powder cocaine sentence guidelines while many Democrats/liberals criticized Obama for not abolishing the disparity altogether.

Effect and Implementation of First Step Act on incarceration rate and numbers of Black Americans

Figure 3 (above) clearly shows a drop from a peak of 4,911 Black Americans incarcerated for Crack Cocaine in 2008 to 1,305 Black Americans incarcerated for Crack Cocaine in 2016, a drop of ~73% of incarcerated Black Americans (it appears to be somewhat plateau-ing for the past 3 years).

Presumably, the steep drop in number of Black Americans incarcerated due to Crack Cocaine began with both Republicans and Democrats pushing for more equal sentencing between Crack and Powder Cocaine in 2007, and was cemented into federal law by Obama in the Fair Sentencing Act of 2010.

It is also unquestionable that the First Step Act has resulted in 2,172 reduction of sentence granted to incarcerated Black Americans, which accounts for ~91% of all those who have received reduced sentencing under the First Step Act.

Conclusion

While the reduction of sentence for 2,172 Black Americans due to the First Step Act of 2018 is encouraging and definitely moving in the right direction to apply the Fair Sentencing Act of 2010 retroactively, the record clearly shows that:

• Democrats, not Republicans, have fought and continues to fight for the good of Black Americans.
• The Fair Sentencing Act of 2010 signed into law by Obama has resulted in thousands of fewer incarceration of Black People in the past 10 years, which arguably is better than the retroactive reduction of sentence for Black Americans under the First Step Act

Extra: But what about the “Biden Crime Bill” (Violent Crime Control and Law Enforcement Act of 1994)?

Sorry — that will have to be another analysis for another day.

— — — — —

Additional relevant links:

• 91 Percent of Inmates Freed by First Step Act Were Black. Should We Give Republicans Credit? (6/10/2019)
• The Fair Sentencing Act corrects a long-time wrong in cocaine cases (8/3/2010)
• Data Show Racial Disparity in Crack Sentencing (8/3/2010)
• Case Coincides with Congressional Push to Repeal Racially Discriminatory Sentencing Scheme (October 2, 2007)
• Cracks in the System: Twenty Years of the Unjust Federal Crack Cocaine Law (October 2006)