first step act and safety valve free sample

The Act requires the submission of several reports to review the BOP"s implementation of the law and assess the effects of the new risk and needs assessment system.

Conducting research and data analysis on: evidence-based recidivism reduction programs relating to the use of prisoner risk and needs assessment tools;

Advising on the most effective and efficient uses of such programs; and which evidence-based recidivism reduction programs are the most effective at reducing recidivism, and the type, amount, and intensity of programming that most effectively reduces the risk of recidivism;

A “safety valve” is an exception to mandatory minimum sentencing laws. A safety valve allows a judge to sentence a person below the mandatory minimum term if certain conditions are met.  Safety valves can be broad or narrow, applying to many or few crimes (e.g., drug crimes only) or types of offenders (e.g., nonviolent offenders). They do not repeal or eliminate mandatory minimum sentences. However, safety valves save taxpayers money because they allow courts to give shorter, more appropriate prison sentences to offenders who pose less of a public safety threat. This saves our scarce taxpayer dollars and prison beds for those who are most deserving of the mandatory minimum term and present the biggest danger to society.

The Problem:Under current federal law, there is only one safety valve, and it applies only to first-time, nonviolent drug offenders whose cases did not involve guns. FAMM was instrumental in the passage of this safety valve, in 1994. Since then, more than 95,000 nonviolent drug offenders have received fairer sentences because of it, saving taxpayers billions. But it is a very narrow exception: in FY 2015, only 13 percent of all drug offenders qualified for the exception.

Mere presence of even a lawfully purchased and registered gun in a person’s home or car is enough to disqualify a nonviolent drug offender from the safety valve,

Even very minor prior infractions (e.g., careless driving) that resulted in no prison time can disqualify an otherwise worthy low-level drug offender from the safety valve, and

Other federal mandatory minimum sentences for other types of crimes – notably, gun possession offenses – are often excessive and apply to low-level offenders who could serve less time in prison, at lower costs to taxpayers, without endangering the public.

The Solution:Create a broader safety valve that applies to all mandatory minimum sentences, and expand the existing drug safety valve to cover more low-level offenders.

The Act represents a dramatically different and enlightened approach to fighting crime that is focused on rehabilitation, reintegration, and sentencing reduction, rather than the tough-on-crime, lock-them-up rhetoric of the past.

Perhaps the Act’s most far-reaching change to sentencing law is its expansion of the application of the Safety Valve—the provision of law that reduces a defendant’s offense level by two and allows judges to disregard an otherwise applicable mandatory minimum penalty if the defendant meets certain criteria. It is aimed at providing qualifying low-level, non-violent drug offenders a means of avoiding an otherwise draconian penalty. In fiscal year 2017, nearly one-third of all drug offenders were found eligible for the Safety Valve.

Until the Act, one of the criteria for the Safety Valve was that a defendant could not have more than a single criminal history point. This generally meant that a defendant with as little as a single prior misdemeanor conviction that resulted in a sentence of more than 60 days was precluded from receiving the Safety Valve.

Section 402 of the Act relaxes the criminal history point criterion to allow a defendant to have up to four criminal history points and still be eligible for the Safety Valve (provided all other criteria are met). Now, even a prior felony conviction would not per se render a defendant ineligible from receiving the Safety Valve so long as the prior felony did not result in a sentence of more than 13 months’ imprisonment.

Importantly, for purposes of the Safety Valve, prior sentences of 60 days or less, which generally result in one criminal history point, are never counted. However, any prior sentences of more than 13 months, or more than 60 days in the case of a violent offense, precludes application of the Safety Valve regardless of whether the criminal history points exceed four.

These changes to the Safety Valve criteria are not retroactive in any way, and only apply to convictions entered on or after the enactment of the Act. Despite this, it still is estimated that these changes to the Safety Valve will impact over 2,000 offenders annually.

Currently, defendants convicted of certain drug felonies are subject to a mandatory minimum 20 years’ imprisonment if they previously were convicted of a single drug felony. If they have two or more prior drug felonies, then the mandatory minimum becomes life imprisonment. Section 401 of the Act reduces these mandatory minimums to 15 years and 25 years respectively.

Section 401 expands the prior predicates to include serious violent felonies but limits any predicate offenses to either serious drug felonies or serious violent felonies. Furthermore, to qualify as a predicate, the defendant must have received more than 12 months’ imprisonment, and, with respect to drug offenses only, the sentence must have ended within 15 years of the commencement of the instant offense.

These amendments apply to any pending cases, except if sentencing already has occurred. Thus, they are not fully retroactive. Had they been made fully retroactive, it is estimated they would have reduced the sentences of just over 3,000 inmates. As it stands, these reduced mandatory minima are estimated to impact only 56 offenders annually.

Section 403 of the Act eliminates the so-called “stacking” of 18 U.S.C. § 924(c)(1)(A) penalties. Section 924(c) provides for various mandatory consecutive penalties for the possession, use, or discharge of a firearm during the commission of a felony violent or drug offense. However, for a “second or subsequent conviction” of 924(c), the mandatory consecutive penalty increases to 25 years.

Occasionally, the Government charges a defendant with multiple counts of 924(c), which results in each count being sentenced consecutive to each other as well as to the underlying predicate offense. For example, a defendant is charged with two counts of drug trafficking and two counts of 18 U.S.C. § 924(c)(1)(A)(i), which requires a consecutive 5 years’ imprisonment to the underlying offense for mere possession of a firearm during the commission of the drug offense. At sentencing, the Court imposes 40 months for the drug trafficking offenses. As a result of the first § 924(c)(1)(A)(i) conviction, the Court must impose a consecutive 60 months (5 years). But what about the second § 924(c)(1)(A)(i) conviction? In such situations, courts have been treating the second count as a “second or subsequent conviction.” As such, the 60-month consecutive sentence becomes a 300 month (25 years) consecutive sentence. In our hypothetical, then, the sentencing court would impose a total sentence of 400 months (40+60+300) inasmuch as the second 924(c) count was a “second or subsequent conviction.”

Now, under the Act, to avoid such an absurd and draconian result, Congress has clarified that the 25-year mandatory consecutive penalty only applies “after a prior conviction under this subsection has become final.” Thus, the enhanced mandatory consecutive penalty no longer can be applied to multiple counts of 924(c) violations.

Finally, Section 404 of the Act makes the changes brought about by the Fair Sentencing Act of 2010 fully retroactive. As the U.S. Sentencing Commission’s “2015 Report to Congress: Impact of the Fair Sentencing Act of 2010,” explained: “The Fair Sentencing Act of 2010 (FSA), enacted August 3, 2010, reduced the statutory penalties for crack cocaine offenses to produce an 18-to-1 crack-to-powder drug quantity ratio. The FSA eliminated the mandatory minimum sentence for simple possession of crack cocaine and increased statutory fines. It also directed the Commission to amend the U.S. Sentencing Guidelines to account for specified aggravating and mitigating circumstances in drug trafficking offenses involving any drug type.”

While the Act now makes the FSA fully retroactive, those prisoners who already have sought a reduction under the FSA and either received one, or their application was otherwise adjudicated on the merits, are not eligible for a second bite at the apple. It is estimated that full retroactive application of the FSA will impact 2,660 offenders.

Reducing the severity and frequency of some draconian mandatory minimum penalties, increasing the applicability of the safety valve, and giving full retroactive effect to the FSA signals a more sane approach to sentencing, which will help address prison overpopulation, while ensuring scarce prison space is reserved only for the more dangerous offenders.

Alan Ellis, a past President of the National Association of Criminal Defense Lawyers and Fulbright Award winner, is a criminal defense lawyer with offices in San Francisco and New York. A nationally recognized authority in the fields of federal plea bargaining, sentencing, prison matters, appeals, and Section 2255 motions, he can be reached at AELaw1@alanellis.com.

Mark H. Allenbaugh, co-founder of Sentencing Stats, LLC, is a nationally recognized expert on federal sentencing, law, policy, and practice. A former staff attorney for the U.S. Sentencing Commission, he is a co-editor of Sentencing, Sanctions, and Corrections: Federal and State Law, Policy, and Practice (2nd ed., Foundation Press, 2002). He can be reached at mark@sentencingstats.com.

More than a year after it was enacted in 2018, key parts of the law are working as promised, restoring a modicum of fairness to federal sentencing and helping to reduce the country’s unconscionably large federal prison population. But other parts are not, demonstrating the need for continued advocacy and more congressional oversight. The way the Justice Department has been handling prisoner releases during the coronavirus pandemic gives some insight into what’s going wrong.

President Trump has bragged about signing the law, which was the first criminal justice reform bill passed in nearly a decade. But simply signing it is not enough. He needs to see it through.

The First Step Act is the product of years of advocacy by people across the political spectrum. Indeed, a very similar bipartisan bill nearly passed in 2015, but was dragged down by election-year politics. The Trump administration began working on its own criminal justice bill in early 2018, and an initial deal was catalyzed by a core group of bipartisan legislators. It was then refined through a series of compromises and, once the Senate decided to pick up the bill, sailed through both houses of Congress with supermajority support.

The law we now know as the First Step Act accomplishes two discrete things, both aimed at making the federal justice system fairer and more focused on rehabilitation.

Its sentencing reformcomponents shorten federal prison sentences and give people additional chances to avoid mandatory minimum penalties by expanding a “safety valve” that allows a judge to impose a sentence lower than the statutory minimum in some cases. These parts of the First Step Act are almost automatic: once the act was signed, judges immediately began sentencing people to shorter prison terms in cases came before them. Similarly, people in federal prison for pre-2010 crack cocaine offenses immediately became eligible to apply for resentencing to a shorter prison term.

The law’s prison reformelements are designed to improve conditions in federal prison in two ways. One is by curbing inhumane practices, such as eliminating the use of restraints on pregnant women and encouraging placing people in prisons that are closer to their families. The other is by reorienting prisons around rehabilitation rather than punishment. That is no small task. Successfully expanding rehabilitative programming in federal prison will require significant follow-through from Congress and the Department of Justice. It’s no surprise, then, that these distinct parts of the act are functioning differently.

Before 2010, an offense involving 5 grams of crack cocaine, a form of the drug more common in the Black community, was punished as severely as one involving 500grams of powder. The Fair Sentencing Act of 2010 changed that, reducing this 100:1 disparity to 18:1 — but only on a forward-going basis. People convicted under the now-outdated crack laws were stuck serving the very sentences that Congress had just repudiated.

The First Step Act fixed that by making the Fair Sentencing Act retroactive. According to the Justice Department, as of May, roughly 3,000 people serving outdated sentences for crack cocaine crimes had already been resentenced to shorter prison terms. Shortened or bypassed mandatory minimums mean that every year another estimated 2,000 people will receive prison sentences 20 percent shorter than they would have.

Another 3,100 people were released in July 2019, anywhere from a few days to a few months early, when the First Step Act’s “good time credit fix” went into effect. This simple change allowed people in federal prison to earn approximately an extra week off their sentence per year — and it applied retroactively, too. For some people it meant seeing their friends and family months earlier than expected.

Taken together, these changes represent an important decrease in incarceration. One year after the First Step Act was signed, the federal prison population was around 5,000 people smaller, continuing several years of declines. It has continued to shrink amidst the coronavirus pandemic.

To be sure, there’s still a long way to go: the federal prison population remains sky-high. And the Department of Justice does not appear to be in complete lockstep with the White House’s celebration of the law. In some old crack cocaine cases, federal prosecutors are opposing resentencing motions or seeking to reincarcerate people who have just been released. Prosecutors in these cases argue that any motions for resentencing must also consider the (often higher) amount of the drug the applicant possessed according to presentence reports. Other technical disputes are also cropping up, with the Department of Justice often arguing for a narrow interpretation of the First Step Act.

When it comes to improving programming within federal prison, even more work remains to be done. Federal prisons offer some opportunities for people in prison to participate in services that either address their individual needs, or help prepare them for life after release. Drug treatment and drug education are two examples; others include ESL and educational classes.

The First Step Act calls for the Bureau of Prisons to significantly expand these opportunities. Within a few years, the BOP must have “evidence-based recidivism reduction programs and productive activities” available for allpeople in prison. That means vocational training, educational classes, and behavioral therapy (to name a few options recommended in the act) should be staffed and broadly available. Participating in these programs will in turn enable imprisoned people to earn “time credits” that they can put toward a transfer to prerelease custody — that is, a halfway house or even home confinement — theoretically allowing them to finish their sentence outside of a prison.

Rolling out this system as intended will be a challenge, however, in part because BOP programs are already understaffed and underfunded. Around 25 percent of people spending more than a year in federal prison have completed zeroprograms. A recent BOP budget document described a lengthy waiting list for basic literacy programs. And according to the Federal Defenders of New York, the true extent of the BOP’s programming shortfall isn’t even known, because the BOP won’t share information on programming availability or capacity. The bureau offered little insight into its existing capacity and needs at a pair of congressional oversight hearings last fall. Worse, a recent report from the First Step Act’s Independent Review Committee, made up of outside experts to advise and assist the government with implementing the law, casts doubt on the quality of the BOP’s existing programming.

The BOP’s lack of transparency also makes it hard to know how “time credits” are being awarded — and thus, whether the BOP is permitting people to make progress toward prerelease custody as Congress intended. The First Step Act provides that most imprisoned people may earn 10 to 15 days of “time credits” for every 30 days of “successful participation” in recidivism-reduction programming. But a recent report suggests the BOP will award a specific number of “hours” for each program. How many “hours” make up a “day,” for the purpose of awarding credits? This highly technical issue may appear trivial, but could significantly affect the reach of the First Step Act.

People with inside knowledge of the system point to other concerns, too. The law excludes some imprisoned people from earning credits based on the crime that led to their incarceration or their role in the offense, and some advocates report that the BOP has applied those exclusions broadly, disqualifying a much larger part of the imprisoned population than Congress intended. Advocates also have heard that program availability in prisons is much spottier than the BOP has suggested, rendering illusory the DOJ’s claim that people are already being assigned to programs and “productive activities” tailored to their needs.

While some progress is being made, all of these concerns point to a need for more congressional oversight — narrowly focused on the availability and capacity of “recidivism reduction” programming in the BOP.

Any expansion of programming also won’t be free. Knowing that, the First Step Act authorized $75 million per year for five years for implementation. But authorization is only the beginning of the budgeting process. Congress must also formally appropriate money to the BOP to fund the First Step Act for each year that it is authorized.

Thankfully, in December 2019, Congress passed and the president signed the Consolidated Appropriations Act, which included full funding for the First Step Act through the end of the current fiscal year. That makes up for a bumpy start: last year, Congress failed to appropriate anything at all, forcing the DOJ to use $75 million from elsewhere in its budget to cover the temporary shortfall.

While this new funding is good news, it still might not be enough. According to a member of the Independent Review Committee, full implementation may cost closer to $300 million. After factoring in “training, staffing, [and] building things like classrooms,” he says, $75 million simply may not be enough. But any more substantial funding seems unlikely to materialize: in a recent budget, the White House sought nearly $300 million to fund improvements related to the law, of which only $23 million was earmarked for programming.

In late March, the Justice Department appeared to finally acknowledge the need to transfer people in federal prison to home confinement to keep them safe from the coronavirus. But transfers have been slow, and a recent report from ProPublica shows one reason why.

The DOJ prioritized transfers for people deemed to pose a “minimum” risk of recidivism under a new system developed for the First Step Act. But that system, called “PATTERN,” has never been perfect, and appears to have been quietly revised to make it more difficult to reach a “minimum” score — and by extension, that much harder to win a transfer to home confinement. This revelation offers the latest example of how the First Step Act’s implementation has proceeded in fits and starts.

Before imprisoned people can use “time credits” they’ve earned from prison programming, two conditions must be met. First, if they’re seeking a transfer to a halfway house, there must be a bed available. That’s not a sure thing, especially after a round of budget cuts by the Trump administration. Second, an incarcerated person must demonstrate that their risk of committing a new crime is low, as calculated by PATTERN.

The process of developing that tool has not gone smoothly. The first version unveiled by the DOJ, in July 2019, appeared to use a method for calculating “risk” that overstated the actual risk of re-offending among formerly incarcerated people, exaggerated racial disparities, and gave people only marginal credit for completing education, counseling, and other programs while in prison. Taken together, the tool gave short shrift to the idea that people can change while in prison — the very premise of the First Step Act.

Early this year, the DOJ shared what seemed like good news: PATTERN, it said, had been improved to partially address some of the concerns raised by the Brennan Center and others. But the tool continued to use an overly broad definition of recidivism. And while the DOJ claimed it introduced changes to reduce racial disparities, it did not release data on the revised tool’s actual effect on racial disparities. As a result, imprisoned people, families, lawyers, and advocates were all concerned when the DOJ announced it would use PATTERN to help determine who would be transferred out of federal prison during the pandemic.

Those concerns were justified. It now seems that the BOP changed PATTERN more significantly than they initially disclosed to make it much harder to qualify as a “low” or “minimum” risk. (A DOJ report, released a week after ProPublica’s story, suggests that the impact of these changes was relatively small, but offers limited data, and — still — provides no analysis of racial disparities.) This change will certainly narrow the effect of the First Step Act. But more urgently, it seems likely to keep more people in federal prison, exposed to a heightened risk of catching a deadly disease.

Trump has repeatedly claimed credit for passing the First Step Act. He did the same in a Super Bowl ad. Now his administration needs to do the hard work of ensuring that the law lives up to its promise.

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Under federal law, judges are generally prohibited from changing a sentence once it has been imposed. Compassionate release, to put it simply, provides a “safety valve” against this general principle, allowing federal judges to reduce a prisoner’s sentence when it is warranted by “extraordinary and compelling reasons.” For the past thirty years, statutory and bureaucratic roadblocks made compassionate release an unlikely avenue for prisoners to receive sentence reductions. With the passage of the First Step Act of 2018, the U.S. Congress made the first significant changes to the compassionate release statute in decades, permitting defendants for the first time to bring such motions directly to their sentencing courts. An overwhelming majority of circuit courts have concluded that the First Step Act’s changes to the compassionate release statute mean that district judges are not free to consider any extraordinary and compelling reason that a defendant might raise. Nevertheless, appellate courts remain divided over what exactly constitutes an extraordinary and compelling reason for a sentence reduction. This Note examines the historical development of, and rationales for, compassionate release and the reasons why appellate courts have struggled to define and apply the “extraordinary and compelling reasons” standard consistently. After recognizing that Congress’s goals in creating the compassionate release mechanism were to promote consistency while keeping the sentencing power in the judiciary, this Note proposes a two-part solution to balance these goals. This Note’s proposed framework ensures that judicial discretion continues to serve a critical role in compassionate release decisions and seeks to resolve the current disagreements among appellate courts.

Over the years I have been retained by a few criminal defense clients after they had bad experience with a prior lawyer. The reasons for switching defense attorneys in midstream vary: sometimes it is concern over the lawyer’s competence, or concern that their case is not getting the attention it deserves, or even that they just don’t see eye to eye with their lawyer. One of the most common, and disturbing reasons though is that the client feels that their prior attorney ripped them off. These complaints generally involve “flat-fee” retainer agreements in which a lawyer and a client agree upon a fixed sum of money for the entire defense representation no matter whether it goes to trial or ends in a plea deal. I see cases all the time where a lawyer accepts a major felony case for a ridiculously low flat-fee just to land the client. Then, when it becomes obvious the case will require a lot of work, the attorney hits the client up for more money. I have even seen cases where the attorney threatens to withdraw from the case if the client does not come up with the additional funds. I call these “pump and dumps:” The lawyer pumps the client for a quick cash infusion and if the client balks, the lawyer tries to dump the client or the retainer agreement. When this happens, the client rightfully becomes upset and the situation quickly becomes untenable. What should a client do? They have (or should have) a written and enforceable fee agreement with the attorney. Then again, who wants a lawyer defending them from serious criminal charges when they claim they are being paid for their work? Defending clients charged with serious or complex felony cases in state and federal courts takes a great amount of work on the part of the criminal defense attorney, the client, and the defense team. These cases are expensive. To get an idea of how expensive, ask the attorney what their normal hourly fee is. The ask them how many hours they would expect to work in a case such as yours. What if it is a plea? What if it is a trial? If the lawyer’s retainer agreement sounds too good to be true, it probably is. The best thing a person can do when selecting a criminal defense attorney is to deal very clearly with this issue up-front. Hourly fee agreements will avoid the problem altogether. The attorney is paid only for the work performed. When negotiating an hourly fee agreement with a criminal defense attorney, be sure to ask the attorney to give a good faith estimate of the number of hours she or he thinks the case will consume depending on various outcomes like a plea agreement or a trial. If you are negotiating a flat-flee agreement make sure that both parties understand that regardless of how many hours the attorney must spend on the case, the fee agreement spells out the total amount to be paid in attorney fees. To protect both parties, flat fee agreements can be modified to suit the needs of each case. For example: The amount of the fee could be staggered to depend on at what stage of the proceedings the case is resolved: Pre-Indictment, with a plea agreement, after a trial etc. Regardless of the attorney and the fee structure you choose. I always recommend the potential client talk to as many knowledgeable and experienced criminal defense attorneys as the situation allows before settling on their pick. This will give the prospective client some idea of comparable fee agreements and rates. It will also allow both parties to get to know each other a little bit before signing up to work so closely together over so serious a matter. Switching attorneys in the middle of the case is sometimes unavoidable, but it is a situation best-avoided if possible.

Hailed by supporters as a pivotal moment in the movement to create a more fair justice system, endorsed by an unlikely alliance that includes President Donald Trump and the American Civil Liberties Union, the First Step Act is a bundle of compromises. As it makes its way through Congress it faces resistance from some Republicans who regard it as a menace to public safety and from some Democrats who view it as more cosmetic than consequential.

The biggest immediate impact of the bill would be felt by nearly 2,600 federal prisoners convicted of crack offenses before 2010. That’s the year Congress, in the so-called Fair Sentencing Act, reduced the huge disparity in punishment between crack cocaine and the powdered form of the drug. The First Step Act would make the reform retroactive. Those eligible would still have to petition for release and go before a judge in a process that also involves input from prosecutors. With crack’s prevalence in many black neighborhoods in the 1980s, the crack penalty hit African Americans much harder than white powder cocaine users. That disparity has been a major example of the racial imbalance in the criminal justice system.

The First Step Act would give federal judges discretion to skirt mandatory minimum sentencing guidelines for more people. Known as a “safety valve,” this exception now can only be used on nonviolent drug offenders with no prior criminal background. It would expand to include people with limited criminal histories. The Congressional Budget Office estimated that about 2,000 additional people each year would be eligible for exemption from mandatory sentences.

The bill also proposes to ease the severity of some automatic sentences. The mandatory minimum sentence doled out for serious violence or weighty drug charges would shrink by five years to 15 years. The federal “three strikes” rule, which prescribes a life sentence for three or more convictions that include serious violent felonies or drug trafficking, would instead trigger a 25-year sentence. Serious drug felonies that now result in automatic 20-year minimum sentences would be reduced to 15 years. An automatic trigger that adds 25 years if a defendant was convicted of two or more violent or trafficking charges while holding a gun would now apply only to people with prior records of similar offenses. The shortened mandatory sentences would not apply retroactively, which was a sticking point for some law enforcement groups endorsing the First Step Act. Those groups were crucial to winning Trump’s support.

A number of reforms in the First Step Act just attempt to enforce what’s already written into law or policy. They include placing prisoners in facilities within 500 driving miles of their families or homes, requiring the Bureau of Prisons to match people with appropriate rehabilitative services, education and training opportunities and restating Congress’ intent to give prisoners up to 54 days off their sentences for good behavior; the current limit is 47 days. This “good time credit” fix would be retroactive, potentially freeing about 4,000 prisoners.

The bill gives inmates the opportunity to earn 10 days in halfway houses or in-home supervision for every 30 days they spend in rehabilitative programs. There is no limit on how many credits they can earn. Job training and education programs in prison would get $375 million in new federal funding. Churches and other outside groups would also get easier access to prisons to provide programming.

The First Step Act prohibits the shackling of pregnant prisoners, a practice that has been banned by Bureau of Prisons policy since 2008, and promises women free tampons and sanitary napkins.

The Bureau of Prisons is already supposed to be doing many of these things but has ignored Congressional mandates and its own policies, according to a number of federal audits and investigations. The First Step Act calls for greater use of halfway houses and home confinement, the least restrictive form of supervision, at a time when the federal prison system has been systematically dismantling its reentry programs. The proposed new law would also expand eligibility for compassionate release of elderly and terminally ill inmates, which would save the government housing and medical costs. Prison officials already have that authority but they release few who apply, denying thousands, some of whom die in custody.

Correction: Due to an editing error, an earlier version of this story included a section heading that incorrectly described a provision of the First Step Act. The bill would make retroactive a 2010 reduction in the disparity between crack and powder cocaine sentences.

The First Step Act 2018 Bill Summary: On December 21, 2018, the President signed into law The First Step Act 2018, a bipartisan effort to reform the federal criminal justice system. The Law Office of Brandon Sample has assembled this detailed analysis of the First Step Act 2018 to help the public understand the ins and outs of the bill. If you are looking for a quick answer to your questions about the First Step Act, we suggest you revisit our prior articles.

We want to be crystal clear about our position: the First Step Act 2018 is not perfect by any stretch of the imagination. There will be thousands of inmates who are largely ineligible to benefit from many of the reforms contained in this law. But the legislation is, by its name, a FIRST STEP.

Since The First Step Act 2018 is broken out into six separate titles, we will break down the bill using that same organization. We are going to change it up and start from the end and work our way back towards Title I of the bill. If you would like to print a copy of this article for your loved one in prison, you may do so at this link: Law Office of Brandon Sample First Step Analysis.

The First Step Act works to address family separation caused by imprisonment. Under the Section 601 of the bill, the BOP will now be required to “place the prisoner in a facility as close as practicable to the prisoner’s primary residence,” and to the extent possible within 500 driving miles of the inmate’s home.

However, the First Step Act still provides some caveats to the “place inmates no further than 500 miles from home” rule. Placement of an inmate will still be subject to that inmate’s “security designation,” medical needs, bed availability and other security concerns of the BOP.

“Security designation,” is just a different way of saying whether an inmate is eligible to go to a medium security, low security, or high security prison based on factors evaluated by the BOP (more on that below).

One glaring weakness in the First Step act 2018 is that although it says BOP “shall” send inmates as close as practicable to their home, it also specifically provides that no court can review BOP’s placement decision. We believe this is a significant potential problem since inmates will have no way to challenge BOP’s decisions except through the BOP’s administrative remedy program.

At rock bottom, however, The First Step act 2018 will allow thousands of families to be within traveling distance of their loved ones who are in prison. On this point, The First Step act 2018 is a good initial change in the right direction.

This part of the First Step Act changes current law to make clear that Congress intends for low-risk inmates to spend as much time as possible on home confinement. The First Step Act directs BOP to place these lower risk prisoners on home confinement during the end of their sentence “for the maximum amount of time” permitted by law.

Under existing law, inmates can spend up to 10% of their sentence or 6 months (whichever amount of time is less) on home confinement. So, the First Step act 2018 instructs BOP to make sure “to the extent practicable” that all lower risk inmates spend as much as 6 months at the end of their sentence in their own home.

Section 603 revives and expands the Elderly Home Detention Pilot Program and makes critical changes to how compassionate release requests are considered.

When Congress passed the Second Chance Act of 2007, it authorized an elderly home detention pilot program. 34 U.S.C. 60541(g). The pilot program was only available in a handful of BOP facilities, limited to 2009 and 2010, and eligibility was defined as applying to anyone:

(ii)Who is serving a term of imprisonment that is not life imprisonment based on conviction for an offense or offenses that do not include any crime of violence (as defined in section 16 of title 18), sex offense (as defined in section 20911(5) of this title), offense described in section 2332b(g)(5)(B) of title 18, or offense under chapter 37 of title 18, and has served the greater of 10 years or 75 percent of the term of imprisonment to which the offender was sentenced;

(iv)Who has not been determined by the Bureau of Prisons, on the basis of information the Bureau uses to make custody classifications, and in the sole discretion of the Bureau, to have a history of violence, or of engaging in conduct constituting a sex offense or other offense described in clause (ii);

(vi)With respect to whom the Bureau of Prisons has determined that release to home detention under this section will result in a substantial net reduction of costs to the Federal Government; and

The First Step Act reauthorizes the Elderly Home Detention program for fiscal years 2019-2023, and expands eligibility for the program. Under the expanded eligibility criteria:

Importantly, Section 504(b)(1)(B) of the First Step Act ELIMINATES the prior requirement that prisoners have served 10 years or 75 percent of their sentence, whichever is greater.

Additionally, the First Step Act allows eligible terminally ill offenders to also be placed on home confinement for the duration of their sentences. An eligible terminally ill offender is anyone who:

(i) is serving a term of imprisonment based on conviction for an offense or offenses that do not include any crime of violence (as defined in section 16(a) of title 18, United States Code), sex offense (as defined in section 111(5) of the Sex Offender Registration and Notification Act (34 U.S.C. 20911(5))), offense described in section 2332b(g)(5)(B) of title 18, United States Code, or offense under chapter 37 of title 18, United States Code; ‘‘(ii) satisfies the criteria specified in clauses (iii) through (vii) of subparagraph (A); and ‘‘(iii) has been determined by a medical doctor approved by the Bureau of Prisons to be—

‘‘(I) in need of care at a nursing home, intermediate care facility, or assisted living facility, as those terms are defined in section 232 of the National Housing Act (12 U.S.C. 1715w); or ‘‘(II) diagnosed with a terminal illness.’’

Currently, compassionate release is difficult to understand and even more difficult to obtain. Existing law only allows for compassionate release if the BOP files a motion with an inmate’s sentencing court seeking a sentence reduction under certain limited circumstances.

The two biggest limitations to compassionate release prior to the First Step Act were these: 1) only the BOP could bring a motion seeking compassionate release; and 2) if BOP did not want to bring a motion for compassionate release even if you met their criteria there was nothing an inmate could do to have their request reviewed by a court.

The result has been that many eligible inmates never received a sentence reduction despite clearly being eligible for compassionate release. Here is how the First Step Act changes the way compassionate release requests are handled.

In a massive change, the FIRST STEP Act now provides that a motion for compassionate release can be brought by either the inmate or the BOP with the sentencing court. This means that inmates will no longer have to simply accept denial of a compassionate release request by the BOP as the last word.

But before an inmate can request compassionate release from a judge, the prisoner must submit an administrative request to the BOP. If the Warden fails to act within 30 days of the prisoner’s request, the inmate can proceed to court immediately. Alternatively, the prisoner can move for compassionate release with the court 30 days after the prisoner’s grievances have been exhausted.

The First Step Act does not change the statutory standard for receiving compassionate release. Specifically, for compassionate release to be granted, a prisoner must have:

(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g);

18 U.S.C. 3582(C)(1)(A)(i)-(ii). The “applicable policy statements issued by the Sentencing Commission” refers to U.S.S.G. 1B1.13, a provision of the Sentencing Guidelines. In light of the First Step Act, we expect the Commission to amend 1B1.13 to provide district courts with further clarity about what constitutes “extraordinary and compelling reasons.”

The First Step Act contains a number of provisions which also require BOP to inform an inmate’s attorney, family, and partner after an inmate receives a terminal illness diagnosis. The phrase “terminal illness” is defined by the First Step Act as a “disease or condition with an end-of-life trajectory.”

Within 72 hours of an inmate being diagnosed with a terminal illness, the BOP must inform the “defendant’s attorney, partner, and family members” about the inmate’s condition. This is a massive change from current practice where family members are typically left in the dark.

As part of this 72-hour notification, BOP is also required to tell the attorney and family members that they may prepare and submit a compassionate release request on the prisoner’s behalf. This means that the prisoner’s attorney or family members can submit the mandatory initial request to a warden for compassionate release rather than forcing the very sick inmate to write his or her own request.

Within 7 days of a person being diagnosed with a terminal illness, the FIRST STEP Act requires BOP to provide the inmate with the opportunity to visit with their family members in-person. There is no limiting language on this requirement about “security concerns” or “to the extent practicable.”

The First Step Act also requires BOP employees to assist inmates in the “preparation, drafting, and submission of” a request for compassionate release if the family members or attorney asks for assistance.

Within 14 days of receiving a compassionate release request from a terminally ill inmate (or their attorney, or their family) the BOP is required to process the request. This is an important provision of the First Step Act because typically the BOP is not required to do anything on a schedule set by Congress.

In practice if BOP has 14 days to process compassionate release requests and they wait until the 14th day to process them (which they probably will) they will only have 16 days to grant or deny that request before an inmate can seek judicial review. Remember, if 30 days passes without action on the request under the FIRST STEP Act a defendant can file his or her own motion with the Court seeking compassionate release.

The First Step Act requires BOP to visibly post information and provide information on request to inmates about the procedures for seeking compassionate release. Under the FIRST STEP Act the BOP would not be allowed to use a lack of information about compassionate release to stonewall inmates.

The First Step Act also requires the BOP to make annual reports to Congress about compassionate release requests and how they are working in practice.

IMPORTANT NOTE: The Law Office of Brandon Sample assists federal prisoners across the United States with making requests for compassionate release. Because this is an important part of our practice, we have dedicated a new, entire website to the issue of compassionate release. That website is https://compassionaterelease.com. We encourage you and/or your family members to visit this website for important information about compassionate release. If you would like to hire our office to assist you with a compassionate release request, please contact us at 802-444-HELP (4357).

One of the most commonly overlooked portions of the FIRST STEP Act is the new requirement listed under the innocuous title “Identification for Returning Citizens.” Anyone who has ever worked with citizens as they try to re-enter society after a prison sentence knows that a lack of proper identification such as driver’s license or birth certificate can pose a huge obstacle.

The FIRST STEP ACT requires BOP to assist inmates in obtaining identification including social security cards, driver’s licenses, and a birth certificate before inmates leave prison or the halfway house.

The First Step Act also makes changes to the way Federal Prison Industries or “UNICOR” is allowed to operate and who they can sell products to. In addition, inmates working in UNICOR will be required to put 15 percent of all monies earned in UNICOR into a release fund. The funds may then be used by the prisoner “to assist the inmate with costs associated with release from prison.”

Within 1 year of the FIRST STEP ACT becoming law, the BOP is required to incorporate certain de-escalation training into its employee training. The idea is that BOP should be required to teach their officers to de-escalate encounters with inmates and appropriately respond to incidents involving people with mental illness.

Within 90 days of the First Step Act becomes law, the BOP is required to submit a report to Congress on the availability of evidence-based programs in BOP for treating heroin and opioid abuse. What the FIRST STEP Act importantly includes here are a number of provisions that favor “medication-assisted” treatment for these terrible addictions.

BOP has traditionally either outright refused or declined to provide medication-assisted treatment for drug abuse despite the large amount of evidence showing these are the most successful treatment regimes. Methadone and similar medications have been shown to significantly reduce long-term opioid abuse in ways not achieved by most other treatment programs.

The First Step Act would also require a submission of a similar report on the availability of evidence-based treatments to people on supervised release within 120 days. Both reports are required to include description of plans to expand access to these programs, which is a good thing.

BOP is required to establish two different types of pilot programs for 5 years in at least 20 facilities and report on them to Congress. The first type of program is a mentorship program which connects volunteers from community organizations and inmates. The second is a program to provide inmates with skills to provide training to animals seized by law enforcement or otherwise rescued.

One of the biggest challenges to passing meaningful sentencing and criminal justice reform is a lack of good information about how BOP operates and the people who are locked away in its prisons. The FIRST STEP Act has a lot of new requirements on the types of information that BOP has to provide to the National Prisoner Statistics Program.

For each BOP facility, the total number of violations that resulted in reductions in rewards, incentives, or time credits, the number of such violations for each category of violation type, and a demographic breakdown of prisoners who received such violations

The FIRST STEP Act requires the BOP to provide female inmates with tampons or sanitary napkins for free instead of forcing women to buy these from the commissary.

This provision of the First Step Act requires the Attorney General to use more of their funding towards giving assistance to state and local programs. It also requires the A.G. to use a minimum of 8% of funds appropriated towards mental illness offender programs at the state level.

Section five of the First Step Act is largely devoted to providing grant monies for Second Chance Act programs at the state level. There are few technical changes to the law discussed in this portion of the bill, but those changes are discussed elsewhere in our comprehensive analysis.

The FIRST STEP Act makes very significant changes to drug sentencing laws and mandatory minimums for repeat offenders in general. Importantly, these changes in applicable mandatory minimums are going to apply to anyone who has not yet been sentenced for their crimes.

The changes are not yet retroactive, which is a problem. We are hopeful that these changes will be made retroactive in future legislation to give current inmates the justice they deserve.  Let’s walk through some of these significant changes:

The term “serious drug felony” is added to the definitions section of the Controlled Substances Act in 21 U.S.C. 802. A “serious drug felony” includes any conviction for a qualifying “serious drug offense” crime listed in 18 U.S.C. 924(e)(2)

Any offense described in 18 U.S.C. 3559(c)(2)(F) [listing specific qualifying crimes, and containing an elements and residual clause] that resulted in 12 months or more of prison for this particular defendant; and

Any offense under 18 U.S.C. 113 [crimes within maritime and territorial jurisdiction of U.S.] which resulted in a 12 month or longer sentence for this defendant.

Before we move on, there are a few very important changes to existing law in these definitions. First, both definitions require that for any prior conviction to be used, the particular defendant must have received a sentence of more than 12 months imprisonment. This is a change from current law which applies to all prior convictions where a sentence of 12 months or more could have been imposed for the offense.

Second, the prior “serious drug felony” definition incorporates a time limitation for penalty enhancements. This is extremely important since it will no longer allow massively higher mandatory minimums for offenses where the defendant was released from prison more than 15 years prior to his or her current offense.

Changing 841(b)(1)(A)(vii) mandatory minimums for offenders with one prior qualifying “serious drug felony” or “serious violent felony.” The current mandatory minimum is 20 years, but the FIRST STEP Act reduces the minimum to 15 years.

Making a similar change to mandatory minimums for offenders with two or more prior convictions. Current mandatory minimum is life imprisonment, but the FIRST STEP Act reduces the minimum to 25 years.

These two changes in the criminal justice reform bill end the so-called “three strikes” law that has forced mandatory lifetime sentences on thousands of inmates in the last 30 years. There would no longer be mandatory minimum life sentences for these crimes; instead, a floor of 25 years would be imposed for any sentence. Additionally, repeat offenders with only one prior qualifying conviction would be facing mandatory minimums of 15 years instead of 20 under this law.

One other negative about this change in law is that 21 U.S.C. 851 enhancements will now no longer be limited to drug priors. The enhanced penalties under 851, going forward, will also apply to priors for serious violent felonies as defined by 21 U.S.C. 802(58) per the First Step Act. And since there is no 15 years from release language for serious violent felonies, very old “violent” felonies can now be used to impose higher mandatory minimum sentences that otherwise were not previously available for federal drug convictions.

18 U.S.C. 3553 is commonly referred to as the “safety valve” because it allows a court to avoid otherwise applicable mandatory minimums for certain non-violent drug offenders with no prior criminal history who meet other conditions. This sounds fantastic on paper, but in reality, it applies to very few people and only to a small set of criminal offenses.

The biggest issue with the safety valve has always been that it is only available to defendants with no more than 1 criminal history point under the Sentencing Guidelines. The FIRST STEP Act addresses this problem.

no more than 4 total criminal history points [without counting prior 1-point convictions for sentences less than 60 days long including fines only, probation, and deferred sentences]

These specific changes allow courts to apply safety valve relief to a wide range of offenders who were previously ineligible because they had more than 1 criminal history point. How criminal history points are calculated is set out by the Sentencing Guidelines and is beyond this primer.

The First Step Act resolves an existing ambiguity in 18 U.S.C. 924(c)(1)(c) about when to apply enhanced penalties for using a firearm during certain crimes based on a defendant’s prior convictions.

The FIRST STEP Act makes clear that the enhanced mandatory minimums for using a firearm during certain crimes only applies when the qualifying prior conviction was already final at the time of the new offense.

In the past, the Government had previously sought to apply 924(c) to offenders convicted of multiple counts on the same day, but with no prior convictions under this section, to obtain the higher mandatory minimum penalties on each count of conviction. This change would unfortunately not apply retroactively to the over 700 inmates with these unjust sentences already.

In 2010, the Fair Sentencing Act was enacted by Congress under President Obama. That law changed the disparity between how crack-cocaine offenses and powder-cocaine offenses were punished since the difference overwhelmingly punished people of color. Unfortunately, the Fair Sentencing Act initially only applied going forward.

Offenders who are currently incarcerated in BOP and whose sentencing range would be lower under the current version of the applicable drug-quantity Sentencing Guidelines for crack-cocaine prior to 2010 will be allowed to file a motion to reduce their sentence.

The new law would allow a defendant to file a motion seeking to reduce their sentence as if the revised guidelines had been in effect on the day they were originally sentenced. A defendant will only get one opportunity to file a motion under this change and the court is not required to impose the change.

Important Note: The Law Office of Brandon Sample is available to assist you with your motion for retroactive application of the Fair Sentencing Act. However, our office will not accept representation in a large number of these cases in order to ensure that we provide excellent, individualized assistance to each person that we represent. Receiving relief pursuant to this change in the law is DISCRETIONARY. It is absolutely imperative that you put forward a compelling motion for relief. If you would like to discuss hiring our office to assist you, please call 802-444-HELP (4357).If you have any questions related to First step act Bill you can schedule a free consultation with one of our attorneys.

This provision of the First Step Act simply says that any cost savings achieved as a result of the legislation should be reinvested into recidivism reduction programs in BOP. There is no teeth to this measure to make it enforceable.

Generally speaking, this section of the First Step Act prohibits the use of restraints on pregnant and postpartum prisoners except under limited conditions. The FIRST STEP Act also provides that even if restraints may be used, BOP must only utilize the “least restrictive means” to restrain females during and after pregnancy.

This section of the First Step Act also imposes a number of reporting requirements on BOP related to the use of restraints during and after pregnancy. BOP is directed to conduct training regarding the use of restraints during these periods and develop guidelines for their use in consultation with healthcare officials.

Within 210 days after the First Step Act becoming law, the Attorney General is required to develop a “Risk and Needs Assessment System.” As previously covered in our May 11, 2018 blog post on https://sentencing.net, this system will determine individual prisoner “recidivism risk,” and help BOP staff decide which programs individual prisoners should participate in.

The First Step Act does allow the BOP to use existing tools as appropriate to satisfy this requirement under the new law. This new system will also be used to provide guidance on housing decisions in BOP.

The First Step Act offers significant incentives to inmates for participating in recidivism reduction programs offered at BOP institutions. These potentially include:

Of all the incentives on this list, only the additional phone minutes appear to be non-discretionary. The language of the Act specifically provides that “A prisoner who is successfully participating in an evidence-based recidivism reduction program SHALL RECEIVE” the additional phone minutes.

Eligible prisoners who successfully complete recidivism reduction programming or “productive activities” are eligible to receive time credits that increase the amount of time a prisoner spends in pre-release custody. Pre-release custody is typically either time in a halfway house or on home confinement, but both options allow a prisoner to sleep outside of a BOP prison.

There are a lot of ineligible prisoners who cannot earn “time credits,” which is discussed in more detail later. Programs taken prior to the First Step Act becoming law will not count towards any “time credit.” Here is how the time credits will work:

Prisoners who BOP determines are at a “minimum” or “low risk” for recidivating and have not increased their risk over 2 consecutive assessments, will earn an additional 5 days of time credit for every 30 days of successful program participation.

The First Step Act provides that “the Director of the Bureau of Prisons may transfer the prisoner to begin any such term of supervised release at an earlier date, not to exceed 12 months, based on the application of time credits under section 3632.” In other words, up to one year of the time credits earned under this Act may be used to reduce the post-confinement period of supervised release.

Unfortunately, the First Step Act excludes large categories of offenders from earning the “time credits” that apply to pre-release custody or supervised release. The excluded offenses are:

“‘(xiv) Any section of chapter 39, relating to explosives and other dangerous articles, except for section 836 (relating to the transportation of fireworks into a State prohibiting sale or use).

‘‘(xv) Section 842(p), relating to distribution of information relating to explosives, destructive devices, and weapons of mass destruction, but only if the conviction involved a weapon of mass destruction (as defined in section 2332a(c)).

‘‘(xvii) Section 924(c), relating to unlawful possession or use of a firearm during and in relation to any crime of violence or drug trafficking crime.

‘‘(xxvi) Section 1992, relating to terrorist attacks and other violence against railroad carriers and against mass transportation systems on land, on water, or through the air.

‘‘(xxviii) Section 2118(c), relating to robberies and burglaries involving controlled substances resulting in assault, putting in jeopardy the life of any person by the use of a dangerous weapon or device, or death.

‘‘(xlv) An offense described in section 3559(c)(2)(F), for which the offender was sentenced to a term of imprisonment of more than 1 year, if the offender has a previous conviction, for which the offender served a term of imprisonment of more than 1 year, for a Federal or State offense, by whatever designation and wherever committed, consisting of murder (as described in section 1111), voluntary manslaughter (as described in section 1112), assault with. intent to commit murder (as described in section 113(a)), aggravated sexual abuse and sexual abuse (as described in sections 2241 and 2242), abusive sexual contact (as described in sections 2244(a)(1) and (a)(2)), kidnapping (as described in chapter 55), carjacking (as described in section 2119), arson (as described in section 844(f)(3), (h), or (i)), or terrorism (as described in chapter 113B).

“‘(xlvi) Section 57(b) of the Atomic Energy Act of 1954 (42 U.S.C. 2077(b)), relating to the engagement or participation in the development or production of special nuclear material.

‘‘(lii) Section 401(a) of the Controlled Substances Act (21 U.S.C. 841), relating to manufacturing or distributing a controlled substance in the case of a conviction for an offense described in subparagraph (A), (B), or (C) of subsection (b)(1) of that section for which death or serious bodily injury resulted from the use of such substance.

‘‘(liii) Section 276(a) of the Immigration and Nationality Act (8 U.S.C. 1326), relating to the reentry of a removed alien, but only if the alien is described in paragraph (1) or (2) of subsection (b) of that section.

‘‘(liv) Section 277 of the Immigration and Nationality Act (8 U.S.C. 1327), relating to aiding or assisting certain aliens to enter the United States.

‘‘(lv) Section 278 of the Immigration and Nationality Act (8 U.S.C. 1328), relating to the importation of an alien int