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

Calling for the Immediate Implementation of the First Step Act of 2018 And UrgingLegislation 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 bycompleting rehabilitative programming and engaging in productive activities,which in some cases can be as much as 15 days of credit for every 30 days ofprogramming or productive activities and which time credits can be applied topre-release custody or supervised release;

And WHEREAS, the Act requires the Attorney General not more than 210 days after theenactment of the First Step Act, in consultation with an Independent ReviewCommittee, to develop and release publicly a risk and needs assessment systemnecessary 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 selecta nonpartisan and nonprofit organization with expertise in the study anddevelopment of risk and needs assessment tools to host the Independent ReviewCommittee, and further provides that the Independent Review Committee shall beestablished not later than 30 days after the date of enactment;

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

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

IT IS HEREBY RESOLVED, the Board of Directors authorizes NACDLleadership and staff to undertake all measures, including litigation, to ensurethat the provisions of the First Step Act relevant to the award of time creditsfor engagement in rehabilitative programming and productive activities aretimely implemented.

Part II

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

  • theact reduces 2-strike mandatory minimum sentences for drug offenders with onespecified 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;
  • theact clarifies that the enhanced mandatory minimum sentences that apply for“second or subsequent convictions” of using a firearm during a crime ofviolence or drug crime (18 USC §924(c)) are limited to offenders who have previously been convicted and serveda sentence for such an offense; and
  • theact expands application of the existing safety valve (18 USC § 3553(f)) toinclude offenders with up to four criminal history points, excluding 1-pointoffenses.


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

The safetyvalve provisions apply to a conviction entered on or after the date ofenactment;

ITIS HEREBY RESOLVED, NACDL urges enactment of legislation toexplicitly make all sentencing reform provisions of the First Step Actretroactive;

ITIS HEREBY FURTHER RESOLVED, to the extent that it is determinedthat the law does not require the application of these ameliorative sentencingprovisions to any prisoner who was sentenced prior to the enactment of theseprovisions,1 NACDL urges the Executive Branch to immediately undertake a systematic programto consider commutation of the sentences of such prisoners to afford them thebenefit of these sentencing reform provisions,

AND IT IS FURTHER RESOLVED that the Board ofDirectors authorizes leadership and staff to take such steps as may beappropriate alone, or in partnership with other organizations, to provide probono representation for inmates who might qualify for commutation pursuant toany 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 constitutionalclaims to require the retroactive application of these provisions and wouldwholeheartedly support those efforts. See Dorsey v. United States, 567 U.S. 260

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