Washington, DC (Dec. 20, 2018) – Today, Congress passed the First Step Act and it is expected that the president will sign the bill into law in the coming days. NACDL and its members have long pressed to fix the unjustly severe federal sentencing regime, advocating for much more sweeping changes than are included in the First Step Act. Although the law does not go nearly as far as we would like, it will benefit many prisoners, and has important implications for practitioners. This initial summary is intended to provide a broad overview of key provisions. The full text of the legislation is available here.
“NACDL certainly celebrates the diligent advocates that helped bring about this legislation and is heartened by the thousands of prisoners who will see reductions in their sentences and confinement, but the First Step Act is far from the final step on our march to a more just criminal justice system,” said NACDL President Drew Findling. “While the First Step Act is not the sweeping overhaul claimed by some and contains provisions that divided reformers, NACDL supported passage because the bill will reduce sentences for thousands of defendants and prisoners. Even so, NACDL and fellow reform advocates will need to be vigilant in monitoring implementation of the law’s provisions. Passage is just the beginning of our work, and there remains much to do to achieve a federal criminal justice system that imposes fair sentences, addresses racial disparities, and effectively prepares incarcerated persons to reenter society. And of course, effective criminal justice reform requires a 50-state effort in addition to work at the federal level, as the vast majority of individuals sentenced to serve time in prison are at the state, not the federal, level.”
The First Step Act’s purported centerpiece mandates the creation of a federal prisoner risk and needs assessment system. A risk assessment tool will be used to classify prisoners as minimum, low, medium, and high risk, and prisoners will be assigned recidivism reduction programming based on identified needs. The system will be phased in over the course of approximately three years. The bill outlines various incentives that can be provided to participating prisoners, but the primary benefit is the opportunity to earn credits for early placement in prerelease custody or supervised release.
Concerns about risk assessment tools aside, the law bars a long list of offenders from earning or using time credits (including those with immigration detainers). Also buried in this section is the long overdue fix to the way in which the BOP calculates good-time credits, which will now equal the full 54 days per year mandated by the statute instead of the 47 days authorized by BOP policy. In the end, this measure has the potential to transform the BOP’s mission, but the current provisions exclude far too many prisoners, many of whom are most in need of programming.
Less controversial are the First Step Act’s sentencing provisions:
- 2-strike and 3-strike mandatory minimum sentences (21 USC sec. 841(b)(1)): Reduces 2-strike mandatory minimum sentences for drug offenders with one specified prior conviction from 20 years to 15 years. The 3-strikes rule, which prescribes a life sentence for two or more specified prior convictions, would instead trigger a 25-year sentence. The prior offenses that trigger these enhancements are changed from any “felony drug offense” to a “serious drug felony or serious violent felony,” both of which are defined. The shortened mandatory sentences would not apply retroactively.
- Firearm penalty “stacking”: Clarifies that the enhanced mandatory minimum sentences that apply for “second or subsequent convictions” of using a firearm during a crime of violence or drug crime (18 USC sec. 924(c)) are limited to offenders who have previously been convicted and served a sentence for such an offense. The shortened mandatory sentences would not apply retroactively.
- Crack cocaine sentences: Authorizes retroactive application of the Fair Sentencing Act of 2010, which reduced the 100-to-1 disparity in sentencing between crack and powder cocaine. Prisoners convicted before August 3, 2010 (when the Fair Sentencing Act became law) can petition a court for a sentence reduction, which lies within the discretion of the judge.
- Safety valve expansion: Expands the existing safety valve (18 USC sec. 3553(f)) to include offenders with up to four criminal history points, excluding 1-point offenses, such as minor misdemeanors. Offenders with prior “3 point” felony convictions (sentences exceeding one year and one month) or prior “2 point” violent offenses (violent offenses with sentences of at least 60 days) will remain ineligible. The shortened sentences would not apply retroactively.
The bill also expands the compassionate and elderly release program to permit prisoners aged 60 years or older (instead of the current 65 years) or prisoners who are terminally ill to request compassionate release based on certain eligibility requirements.
Other prison-related provisions (1) require that prisoners be placed as close as possible to their primary residence and to the extent practicable within 500 miles; (2) require the BOP to place low risk and low needs prisoners on home confinement for the maximum authorized period; (3) prohibit the use of restraints on women during pregnancy, labor and postpartum; and (4) restrict the use of solitary confinement for juveniles.
Lastly, the bill reauthorizes the Second Chance Act, a federal grant program providing employment assistance, substance abuse treatment, housing, and other services to individuals returning to the community from prison or jail.
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.