Sentencing and Prison Reform: The First Step Act

In late 2018, Congress enacted a sweeping prison reform legislation that President Donald Trump signed into law. The law was designed to shorten sentences and improve the conditions of incarcerated people.

While momentous, the First Step Act prison reforms applied only to the federal criminal justice system. It had a meaningful effect on defendants prosecuted for federal drug and firearms offenses. But there was no direct impact on the states that have the vast majority of prison inmates.

This article presents information about the First Step Act, criticisms of this law, and prison and sentencing reform efforts.

Background

The First Step Act of 2018 was a bipartisan congressional effort to reform prison law. Republicans and Democrats worked together to ease the budgetary burden of mass incarceration. Although the United States has less than 5% of the global population, it incarcerates nearly a quarter of the world's prison inmates.

Under the First Step Act, the U.S. Attorney General developed a needs assessment system. This system is then used by the Federal Bureau of Prisons (BOP) to calculate a prisoner's recidivism risk and eligibility for early release.

This reform bill also addresses racial inequities and aims to lessen federal sentencing punishments for nonviolent drug offenders.

Mandatory Minimum Sentences Eased

One of the most significant changes to result from the First Step Act relates to automatic sentences. Since the mid-1980s, most criminal justice reforms made prison sentences tougher. So, federal court judges sentenced defendants to a mandatory minimum number of years in prison. At the time, it was thought that rigid sentencing requirements would promote uniformity.

In some cases, judges could no longer consider extenuating circumstances that might have resulted in more lenient sentences.

The First Step Act did not repeal mandatory sentencing laws but reduced the length of minimum sentences. This is commonly referred to as the 'safety valve provision.'

Now, people with a limited criminal history and who have a conviction for a low-level, nonviolent drug crime can face less than the required mandatory minimum sentence.

For example, a defendant who faced a sentence of 20 years might now face 15 years. In some circumstances, the new law also gave judges greater discretion to ignore the mandatory minimum.

But Congress didn't make the shortened sentencing rule retroactive. Federal inmates already serving time gained no relief from the change in the law. Thousands of prisoners continue to serve long sentences in the federal prison system.

Crack Cocaine Sentences Get Reduced

Federal inmates who may benefit most from the new law are people prosecuted for crack cocaine offenses before 2010. This unlucky group wasn't covered by the Fair Sentencing Act of 2010.

The Fair Sentencing Act reduced the enormous disparity between criminal law sentencing for crack and powdered cocaine. Crack cocaine prosecutions more often affected black defendants, while powder cocaine prosecutions had a more significant impact on white defendants.

Like the First Step Act, the Fair Sentencing Act was not retroactive when it was initially passed. But the 2018 prison reform law finally made the cocaine sentencing law retroactive. So, crack cocaine offenders could petition for reductions in their prison terms.

Other Provisions of the First Step Prison Reform Act

Other noteworthy reforms of the 2018 First Step Act included:

• Modifying the way that good-time credits are computed for federal inmates
• Requiring inmate placement within 500 miles of their homes or families
• Increasing the use of home confinement and halfway houses
• Prohibiting the use of shackles or restraints on pregnant inmates
• Providing female inmates with free tampons and sanitary napkins

The law also made it easier for elderly or terminally ill inmates to obtain compassionate release. Many federal inmates tried to get compassionate release during the COVID-19 pandemic, with mixed success.

Recidivism Reduction Programs

The tool used to calculate the federal prison population's recidivism risk is formally called the Prisoner Assessment Tool Targeting Estimated Risk and Need (PATTERN). The tool measures a prisoner's productive activities and good behavior to assess whether they've changed during incarceration. PATTERN also demonstrates a prisoner's needs so they can participate in programs that reduce their risk score.

The First Step Act also introduced significant incentives for success through good time credit. Prisoners can earn up to 54 days of good time credit for every year of their imposed sentence, as opposed to every year served.

For example, a defendant sentenced to 20 years in prison who earns the maximum allowed good time credits could earn 1080 days of credit.

But there is a list of disqualifying offenses, including:

• Terrorism
• Espionage
• Human trafficking
• Sexual exploitation
• High-level drug offenses
• Felons in possession of a firearm

The Department of Justice (DOJ) has reported positive results for inmates who participated in evidence-based recidivism reduction programs. Nearly 30,000 individuals had their release expedited under the First Step Act. Of those released, about nine out of every ten former inmates have not returned to prison, a 33% reduction.

Criticism of the First Steps Act

Immediate criticism of the Act focused on the minimal number of inmates affected because sentences were only shortened for particular crimes. Also, the new formula for computing good-time credits produced disparate results that disfavored poor and minority prisoners.

The Sentencing Project reviewed the First Step Act on its first anniversary and reported mixed results. The rollout faced the following problems:

• Retroactive sentencing provisions left out of the First Step Act could've led to the release of an additional 4,000 prisoners
• Harsh mandatory minimum sentences continued and were now applied to cases involving fentanyl
• The $75 million a year for rehabilitative programs was not sufficient for the number of people who needed treatment

The Sentencing Project has also proposed that Congress pass the Second Look Act. It would create a sentence review procedure for people serving prison sentences of longer than 10 years. Judges would determine whether the prisoner posed a danger to public safety.

To qualify, an inmate must serve at least 10 years of their sentence. The federal court would then consider the prisoner's age and risk of recidivism, along with whether the prisoner had demonstrated readiness for reentry into society. The judge must determine whether a sentence modification is genuinely warranted.

Prison reformers believe this kind of review process would affect a far greater number of inmates.

State Level Reforms

The First Step Act was part of a broader prison reform conversation happening among state governments. Many reform efforts continue at the state level, where most of the prison population exists. Many states are reducing minimum sentences for nonviolent drug offenses.

The following states enacted efforts that reduced their prison populations by 14 - 25%:

• Connecticut
• Michigan
• Mississippi
• Rhode Island
• South Carolina

California and Florida had already adopted far-reaching amendments to their own sentencing laws prior to the First Step Act.

Do You Have Questions About Sentencing Laws? Talk to a Lawyer

Talk to a criminal defense lawyer if you believe you or a family member are eligible for pre-release custody or a reduced prison sentence under the First Step Act. It is essential to consult with a lawyer, as many states are joining the prison and sentence reform movement.