The Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act of 2018, or FIRST STEP Act, is the first criminal justice reform bill signed into law under the current administration. Long in the making, the Act brings substantial reform to federal sentencing. While this bipartisan bill is primarily focused on decreasing recidivism, which is defined as a return to “criminal behavior, re-arrest, and re-incarceration,” through evidence-based programming, the Act also reduces mandatory sentencing for non-violent offenses, expands educational programming, and revises certain drug penalties. This article will provide a broad overview of the Act, as well as a brief discussion of a challenge to the Act’s good time credit provisions by federal inmate Vivek Shah.
The Act includes key provisions from the Sentencing Reform and Corrections Act of 2015 (“SRCA”). Senators Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill.) introduced the bill in October 2015, and President Obama endorsed the legislation. According to the New York Times, Senator Mitch McConnell (R-Ky.), the majority leader, refused to allow a vote on the issue and the bill died.
Despite this setback, Senators Grassley and Durbin re-introduced the SRCA in October 2017 and led it through the committee process. The SRCA was renamed the FIRST STEP Act, and after significant advocacy efforts by a coalition of civil rights groups, the bill gathered additional legislative backers.
In December 2018, the Act was signed into law by President Trump. While the law enjoyed significant bipartisan support – almost a quarter of the Senate co-sponsored the Act – President Trump’s son-in law and adviser, Jared Kushner, was a “driving force behind the bill.” This interest in prison reform originated in 2005, when Mr. Kushner’s father, Charles Kushner, was sentenced to prison. He served 14 months in federal prison for tax evasion, witness tampering, and making illegal donations. The New York Times reported that Mr. Kushner leveraged celebrity influence, including Kim Kardashian West and Kanye West, to gain President Trump’s support.
The FIRST STEP Act’s Key Provisions
The Act only applies to federal prisons, which are run by the Bureau of Prisons (“BOP”). Despite this limitation, advocates argue that the Act will encourage sentence reform at the state level.
Highlights of the Act include:
- Decreases mandatory minimum sentences for certain offenses
- Expands the reach of the “drug safety valve”
- Makes the Fair Sentencing Act of 2010 retroactive
- Incentivizes inmate participation in evidence-based programming aimed at reducing recidivism
- Increases amount of good time credit inmates are eligible for
Decreases Mandatory Minimum Sentences for Felony Drug Offenses
Federal crimes that carry a mandatory minimum sentence require the court to impose a specific term of imprisonment. Under the Act, the following mandatory minimums have changed:
- For those with one prior “serious drug felony,” conviction, the automatic minimum sentence is reduced from 20 to 15 years
- If convicted of two or more violent or trafficking charges while in possession of a firearm, the 25-year mandatory minimum would only apply if the individual has a criminal record with similar offenses
- For repeat drug offenders, the mandatory minimum, which previously required mandatory life without parole for a third felony drug offense, is reduced to 25 years
A “serious drug felony” is an offense described in section 18 U.S.C. § 924(e)(2) (which references the Controlled Substances Act) that resulted in imprisonment for 12 or more months. Moreover, to be classified as a serious drug felony, the defendant must have been released from prison within the last 15 years.
The prevalence of mandatory minimums is, in large part, a result of the War on Drugs. In the 1970s, President Nixon significantly increased the size of federal drug enforcement agencies and pushed for marijuana to be classified as a Schedule One substance. This federal hostility to non-violent drug offenses continued into the 1980s; it was during this time that President Reagan aggressively advocated for steep mandatory sentences and his wife urged the country to “Just Say No.”
Mandatory minimums have historically served to limit judges’ sentencing discretion, which is why any exceptions to their imposition are generally narrow. As Justice Breyer observed in United States v. Booker, “Congress’ basic goal in passing the Sentencing Act was to move the sentencing system in the direction of increased uniformity.”
It is this legislative commitment to uniformity that birthed other federal sentencing schemes with mandatory minimums, including the Three Strikes Law, which is detailed in section 3559 of Title 18. While the FIRST STEP Act does not completely overhaul the federal use of mandatory minimum sentences, it nonetheless weakens their force. Before the FIRST STEP Act, a third conviction for a serious violent felony would result in a life sentence. However, with the passage of the Act, a third conviction for a serious violent felony will now result in a 25-year sentence.
So as to have ensured support from law enforcement organizations, the aforementioned provisions of the Act were written to not apply retroactively.
Stacking of Firearms-Related Offenses
Under 18 U.S.C. § 924(c), a defendant who uses, carries, or brandishes a firearm in the commission of a crime of violence or drug trafficking offense faces a consecutive mandatory minimum sentence. Prior to the passage of the First Step Act, stacking of the consecutive 5, 7, or 10-year mandatory minimum was permitted. For example, a defendant who was convicted of committing two robberies with a firearm in one week faced a supplemental mandatory sentence of 10 years for the first robbery and an additional 25 years for the second robbery.
Under the First Step Act, this “stacking” of mandatory minimum sentences will now only apply to prior convictions. In other words, application of the second or third gun enhancement would only apply after a prior conviction for a similar offense has become final.
Expands the Drug Safety Valve
For certain drug offenses, a judge is required to impose a minimum sentence of imprisonment. However, there are two exceptions to this rule:
- The defendant provided substantial assistance to the prosecution (ie, the defendant officially “cooperated” with law enforcement)
- The defendant meets the criteria pursuant to 18 U.S.C. § 3553(f).
This second exception is generally referred to as the “safety valve” provision. Before the FIRST STEP Act was passed, the safety valve exception required a defendant to meet five criteria:
- Minimal criminal record
- Not a leader or supervisor in the commission of the charged offense
- No violence
- No serious injury
- Disclose everything they know about the offense and any conduct related to the offense
This first requirement meant that the defendant could only have one criminal history point. Under the United States Sentencing Commission’s guidelines, criminal history points reflect an inmate’s criminal history, which means that prior prison sentences, probation or parole status, and the commission of specific crimes add points to an inmate’s point total. Obviously, the one-point requirement significantly limited the number of inmates who qualified for the safety valve provision. The FIRST STEP Act broadens the safety valve provision to include inmates with four total criminal history points. Further, the Act excludes any criminal history points resulting from a 1-point offense.
However, the defendant isn’t eligible for the safety valve provision if they committed a violent offense. Under section 3553 of Title 18, a violent offense “means a crime of violence.” Further, a defendant who is convicted of a serious drug felony is not eligible for the safety valve provision. Finally, the safety valve provision is prospective, so inmates already convicted of the offense cannot benefit from this change.
Retroactive Application of the Fair Sentencing Act
In 2010, Congress passed the Fair Sentencing Act (“FSA”), which addressed the sentencing disparities in the Anti-Drug Abuse Act of 1986 for offenses involving crack cocaine and powder cocaine. Prior to the passage of the FSA, possession and distribution of crack cocaine was punished with significantly harsher penalties than those faced by people possessing or distributing powder cocaine.
However, the Fair Sentencing Act was not retroactive, which meant that those serving lengthy prison sentences for crack cocaine-related offenses were not eligible for re-sentencing. With the passage of the FIRST STEP Act, approximately 2,600 inmates will be impacted by the retroactive application of the Fair Sentencing Act.
Incentivizes Participation in Evidence-Based Programming
Inmates can now earn 10 days of time credit for every 30 days of successful participation in an evidence-based recidivism program or other productive activities. Further, inmates who are at a low or medium risk for recidivism and have not increased their recidivism risk will earn an additional 5 days of credit for every 30 days of successful participation in recidivism programming or productive activities.
“Evidence-based recidivism reduction program” is an activity that has been shown to decrease recidivism and help inmates succeed upon release. These programs may include topics related to communication skills, interpersonal development, cognitive behavior treatment, substance abuse treatment, job training, restorative justice, or trauma-informed support programs.
“Productive activity” is any group or individual activity that allows an inmate to remain productive and in doing so, continue to maintain their low or medium recidivism risk.
The Act also authorizes the BOP to enter into partnerships with non-profit and private organizations, institutions of higher education, private entities, and industry-sponsored organizations that will deliver workforce development and training.
This credit-earning provision is limited in scope – inmates convicted of certain crimes, including assault with the intent to commit murder, kidnapping, and sexual assault, cannot earn credit for evidence-based programming or other productive activities. If an inmate is the subject of a final order of removal, they are not eligible for the credit-earning opportunity.
In addition to time credit, the ACT also authorizes:
- Increased phone and visitation privileges
- Transfer to federal institution closer to home
- Increased commissary spending and product offerings
- Extended opportunities to access email
Increases Good Time Credits
Before the Act was passed, federal inmates earned 47 days of good time credit per year. Under the law, inmates now earn 54 days of credit per year. While the law clarifies that the provision is retroactive, there is disagreement regarding the provision’s effect date. As discussed below, this issue is due to potentially ambiguous language in section 102(b) of the FIRST STEP Act. This portion of the law states that the changes do not take effect until the Attorney General completes and releases the needs assessment system, which was established under section 101(a).
Challenges to the FIRST STEP Act
On December 22, 2018, Vivek Shak, a federal prisoner incarcerated at a halfway house in Chicago, Illinois, filed an emergency motion for immediate release under the FIRST STEP Act. However, on January 3, 2019, the District Court for the Northern District of Illinois denied his motion. Judgment was entered on January 8, 2019 and the matter was closed.
In the January 3, 2019 order denying Mr. Shah’s motion, the court stated:
Section 102(b) of the First Step Act states that the amendment to section 3624(b) does not take effect until after the Attorney General completes and releases the needs assessment system established under section 101(a) of the Act… The Attorney General is given up to 210 days to implement the risk and needs assessment system.
… the amendment to section 3624(b) is not yet in effect because the Attorney General has not yet completed and released the needs assessment system… The plain language of section 102(b)(2) of the Act is clear that the entirety of section 102(b), including the amendment to section 3624(b), is not effective until the Attorney General completes and releases the risk and needs assessment system under section 101(a) of the Act… pursuant to section 102(b)(2), the amendment to section 3624(b) set forth in section 102(b)(1)(A) is not yet in effect and so Petitioner is not yet entitled to relief.
On February 7, 2019, Mr. Shah submitted a Notice of Appeal. As a result, at this time, it is unclear when this credit-earning provision will take effect.
While the Act is not as expansive as its predecessor, the Sentencing Reform and Corrections Act of 2015, the FIRST STEP Act nonetheless represents a significant federal shift in attitudes regarding non-violent drug offenses, as well as the utility of lengthy mandatory sentences. The creation and expansion of programs designed to reduce recidivism, along with the broadened reach of the safety valve provision, are exciting and necessary changes, and hopefully, these changes will continue to reverberate at both the federal and state levels.
This article was written by Ashley Riser and Julia Jayne of Jayne Law Group, P.C.