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Board of Directors ~ 2/16/19 (2)

Calling for the Immediate Implementation of the First Step Act of 2018 And Urging Legislation to Retroactively Apply Certain Sentencing Reform Provisions of the Act Or Alternatively Urging the Executive Branch to Systematically Consider Sentencing Commutation for Incarcerated Individuals Whose Sentences Could Have Been Lower If Sentenced Under the Provisions of the First Step Act 

Phoenix, AZ
February 16, 2019

Part I 

WHEREAS, the First Step Act of 2018 provides that certain prisoners can earn time credits by completing rehabilitative programming and engaging in productive activities, which in some cases can be as much as 15 days of credit for every 30 days of programming or productive activities and which time credits can be applied to pre-release custody or supervised release; 

And WHEREAS, the Act requires the Attorney General not more than 210 days after the enactment of the First Step Act, in consultation with an Independent Review Committee, to develop and release publicly a risk and needs assessment system necessary to implement the “earned time credits” provided for in the act; 

And WHEREAS, the First Step Act provides that the National Institute of Justice shall select a nonpartisan and nonprofit organization with expertise in the study and development of risk and needs assessment tools to host the Independent Review Committee, and further provides that the Independent Review Committee shall be established not later than 30 days after the date of enactment; 

And WHEREAS, the earned time provisions cannot become available to prisoners until the risk and needs assessment is implemented; 

And WHEREAS, it does not appear that the Department of Justice has undertaken the measures required by the First Step Act to implement the earned time provisions; 

IT IS HEREBY RESOLVED, the Board of Directors authorizes NACDL leadership and staff to undertake all measures, including litigation, to ensure that the provisions of the First Step Act relevant to the award of time credits for engagement in rehabilitative programming and productive activities are timely implemented. 

Part II 

WHEREAS, the First Step Act includes three sections that prospectively reduce the length of sentences, to wit: 

  •  the act reduces 2-strike mandatory minimum sentences for drug offenders with one specified prior conviction from 20 years to 15 years, and the 3-strike rule, which prescribes a life sentence for two or more specified prior convictions, instead mandates a 25-year sentence; 
  •  the act 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  § 924(c)) are limited to offenders who have previously been convicted and served a sentence for such an offense; and 
  •  the act expands application of the existing safety valve (18 USC § 3553(f)) to include offenders with up to four criminal history points, excluding 1-point offenses. 

And WHEREAS,  

          The 2- and 3-strike and firearms provisions apply to the offense that was committed before the date of enactment of the First Step Act, if sentence for the offense has not been imposed as of the date of enactment; and 

          The safety valve provisions apply to a conviction entered on or after the date of enactment; 

IT IS HEREBY RESOLVED, NACDL urges enactment of legislation to explicitly make all sentencing reform provisions of the First Step Act retroactive; 

IT IS HEREBY FURTHER RESOLVED, to the extent that it is determined that the law does not require the application of these ameliorative sentencing provisions to any prisoner who was sentenced prior to the enactment of these provisions,NACDL urges the Executive Branch to immediately undertake a systematic program to consider commutation of the sentences of such prisoners to afford them the benefit of these sentencing reform provisions, 

AND IT IS FURTHER RESOLVED that the Board of Directors authorizes leadership and staff to take such steps as may be appropriate alone, or in partnership with other organizations, to provide pro bono representation for inmates who might qualify for commutation pursuant to any systematic program announced by the Executive Branch. 

 1. Despite the federal saving statute (1 U.S.C. §109), NACDL recognizes that there may be legal or constitutional claims to require the retroactive application of these provisions and would wholeheartedly support those efforts. See Dorsey v. United States, 567 U.S. 260 (

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