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First Step Act Promises Modest Criminal Justice Reform

Arseneault & Fassett, LLP

On December 21, 2018, the First Step Act of 2018 was passed by Congress and signed into law by President Trump, representing criminal justice reform for defendants who await sentencing and inmates who are currently serving their sentences in federal prisons. In general, the benefits are modest but potentially wide-reaching.

Mandatory Minimums for Serious Drug/Violent Felonies

The Act reduces the mandatory minimum sentences for defendants who have committed commit two or more serious drug/violent felonies. Previously, a defendant faced a minimum sentence of 20 years for a second qualifying conviction and mandatory Life without release for a third or subsequent conviction. The Act reduces the mandatory minimum for a second conviction to 15 years and replaces Life with a mandatory minimum of 25 years. These provisions apply to any offender who had not been sentenced as of the date of the new law’s enactment.

Safety Valve

The “safety valve” provision, which previously afforded the potential for first-time non-violent drug offenders to avoid unduly harsh sentences, is now available to offenders with more significant criminal histories. Where the safety valve was previously available only to defendants with no more than one criminal history point, the Act expands eligibility to defendants who do not have more than four (4) criminal history points, nor a single 3-point offense, nor a single 2-point violent offense.

Reduced “Stacking” of Mandatory Minimums under 18 U.S.C. §924(c)

The Act clarifies the conditions that trigger a 25-year mandatory minimum for a second or subsequent drug/violent offense involving a firearm. The Act replaces prior language describing “second or subsequent conviction” with “a violation of this section that occurs after a prior conviction under this subsection has become final.” The Act is in response to recommendations by the U.S. Sentencing Commission to reduce the unduly harsh “stacking” of penalties resulting from multiple convictions resulting from the same case.

Crack/Powder Cocaine Disparity

The Act makes retroactive the 2010 Fair Sentencing Act, which amended the Sentencing Guidelines to treat crack and powder cocaine offenses more equitably. The Act potentially provides relief to thousands of federal inmates who are still serving time for crack cocaine offenses for which they were sentenced prior to 2010. The Act is not automatic; rather, it requires a motion for the court to consider reducing the sentence. The Court is not required to grant the motion, and a motion is not permitted if a sentence was previously reduced under the 2010 Act or if a motion under the 2010 Act was denied.

Good Time Credit

The provision which may affect the most beneficiaries — as many as one-third of all federal inmates — is the adjustment of the “good time credit” which inmates earn toward early release for time served without disciplinary infractions. It has long been federal law that inmates are entitled to a credit of “up to” 54 days per year. In practice, however, the Bureau of Prisons (BOP) has employed its own creative math to shortchange inmates by 7 days per year. Previous federal court decisions have allowed this practice to continue. The First Step Act closes this loophole, mandating that the BOP provide the additional week per year to inmates who have earned the credit. This change is retroactive, meaning that it applies to all federal inmates who are eligible for the credit, extending back to the beginning of their sentences. So eligible inmates could be released sooner than previously expected, especially those who are nearing the end of long sentences.

Recidivism Reduction Programs & Productive Programming

The Act also permits inmates to earn benefits by participating in programs designed to rehabilitate and reduce recidivism. Potential benefits include additional time for visits, increased access to telephone and email, increased commissary spending limits, and consideration of transfer to preferred housing units or even another facility closer to home. In addition, inmates who meet eligibility requirements may accumulate “earned time credits” of 10 to 15 days for every 30 days of participation. The credit may then be applied toward time in prerelease custody or supervised release.

Other Prison Reform

The Act directs the BOP to designate inmates to facilities within 500 driving miles of their homes, after considering a number of factors such as bed space and security concerns. While it has been common for courts to make such recommendations at sentencing at the request of individual defense counsel, the Bureau of Prisons was under no obligation to follow such recommendations prior to the Act. In theory the Act at least requires the BOP to make an effort to make it more feasible for family and friends to visit inmates. However, the Act also provides that the BOP’s designation decisions are not reviewable by courts.

The Act directs the BOP to place low-risk, low-needs inmates in home confinement for the maximum period allowed under pre-existing law, either 10 percent of the sentence or six months, whichever is shorter. Previously the statute merely provided that inmates “may” be placed in home confinement.

The Act provides additional relief to female inmates, including restricting the use of restraints on pregnant and post-partum inmates and mandating that all female inmates be provided with feminine hygiene products.
The Act also lowers the minimum age for “compassionate release” for terminally ill inmates from 65 to 60, as well as other reforms regarding “compassionate release.”

Conclusion

The First Step Act may not meet expectations of most defendants and advocates. As the BOP puts the statute into practice, we may be even more disappointed. However, the Act potentially provide at least modest improvements to thousands of defendants for years to come.

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