first step act 2018 safety valve factory

The Federal Safety Valve law permits a sentence in a drug conviction to go below the mandatory drug crime minimums for certain individuals that have a limited prior criminal history. This is a great benefit for those who want a second chance at life without sitting around incarcerated for many years. Prior to the First Step Act, if the defendant had more than one criminal history point, then they were ineligible for safety valve. The First Step Act changed this, now allowing for up to four prior criminal history points in certain circumstances.

The First Step Act now gives safety valve eligibility if: (1) the defendant does not have more than four prior criminal history points, excluding any points incurred from one point offenses; (2) a prior three point offense; and (3) a prior two point violent offense. This change drastically increased the amount of people who can minimize their mandatory sentence liability.

Understanding how safety valve works in light of the First Step Act is extremely important in how to incorporate these new laws into your case strategy. For example, given the increase in eligible defendants, it might be wise to do a plea if you have a favorable judge who will likely sentence to lesser time. Knowing these minute issues is very important and talking to a lawyer who is an experienced federal criminal defense attorney in southeast Michigan is what you should do. We are experienced federal criminal defense attorneys and would love to help you out. Contact us today.

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.

The First Step Act applies the Fair Sentencing Act of 2010 retroactively, authorizing defendants sentenced prior to enactment of the Fair Sentencing Act to seek sentence reductions. The Fair Sentencing Act reduced the disparity between sentences for crack and powder cocaine from a 100-to-1 to an 18-to-1 crack-to-powder ratio for defendants sentenced on or after its effective date.

What was the impact? Defendants had their sentence reduced by greater amounts. Specifically, in the year following enactment of the First Step Act, 2,387 defendants had their sentenced reduced on average by nearly six years, from an average of 258 months to an average of 187 months, a 27% decrease.

The First Step Act changed the scope and severity of enhancements for repeat drug offenders. Under federal drug statutes, when certain quantity thresholds are met, a five-year mandatory minimum penalty and a maximum term of 40 years applies, while larger amounts increase the mandatory minimum penalty to ten years, with a maximum term of life imprisonment. These mandatory minimum penalties may be further enhanced if a drug defendant has qualifying prior convictions, and prosecutors file an information under 21 U.S.C. § 851 specifying the previous convictions to be relied upon. The First Step Act narrowed the type of prior drug offenses that trigger mandatory enhanced penalties, and also reduced the length of some of the enhanced penalties.

What was the impact? Drug trafficking defendants were less likely to have an “851” information filed against them. Specifically, in the year prior to the First Step Act, there were 1,001 defendants against whom an “851” enhancement was applied. In contrast, in the year following enactment of the First Step Act, there were 849 defendants against whom the enhancement was applied, a 15% percent decrease.

What was the impact? More defendants were granted compassionate release. Specifically, in the year prior to the First Step Act, 24 compassionate release motions were granted. In contrast, in the year following enactment of the First Step Act, 145 compassionate release motions were granted, a five-fold increase.

The criminal justice reforms enacted under the First Step Act have undoubtedly benefited federal criminal defendants, if not in a sweeping fashion, at least incrementally. It has also provided a springboard for further criminal justice reform legislation.

Federal criminal defendants can best ensure that they receive the benefits of the First Step Act, and any future criminal justice reforms, by choosing a criminal defense attorney who is informed and knowledgeable about the current state of federal criminal law. The attorney must be prepared and able to argue for a mitigated sentence against experienced federal prosecutors who have the unlimited resources of the federal government at their disposal to secure a lengthy sentence.

In addition to making retroactive the Fair Sentencing Act’s correction of the disparity between sentences for crack and powder cocaine related offenses, a second hallmark of the FIRST STEP Act is the broadening of the safety valve provision, which dispenses with mandatory minium sentences under certain circumstances. While the Act does not provide for retroactivity of this provision, the United States Sentencing Commission estimates that this change will impact more than 2,000 defendants per year in the future. See Sentence and Prison Impact Estimate Summary (last viewed January 27, 2019).

The safety valve, codified at 18 U.S.C. § 3553(f) and also found in section 5C1.2 of the United States Sentencing Guidelines, permits judges to dispense with statutorily imposed mandatory minimum sentences with regard to violations of 21 U.S.C. §§ 841, 844, 846, 960 and 963, which involve the possession, manufacture, distribution, export and importation of controlled substances. Previously, in order to sentence a defendant without regard to the mandatory minimum sentences for these offenses, the court was required to find the following: 1) the defendant does not have more than one criminal history point; 2) the defendant did not use violence, threats, or possess a dangerous weapon or firearm in connection with the offense; 3) the offense did not result in death or serious bodily injury to any person; 4) the defendant was not an organizer, leader, manager or supervisor in the offense, and was not engaged in a continuing criminal enterprise; and 5) the defendant truthfully provided information to the government concerning the offense. See 18 U.S.C. § 3553(f)(1)-(5).

The FIRST STEP Act amends the aforementioned conditions by permitting judges to utilize the safety valve provision even where the defendant has up to four criminal history points, excluding all points for one-point offenses, which are generally minor crimes. However, defendants with prior three-point felony convictions and two-point violent felony convictions are still not permitted to utilize the safety valve. Additionally, the FIRST STEP Act adds 46 U.S.C. §§ 70503 and 70506, which involve the possession, distribution and manufacturing of controlled substances in international waters, to the list of offenses which are covered by the safety valve.

Hiring a top New York criminal defense attorney to defend you in any federal criminal prosecution or assist with any questions concerning the applicability of the FIRST STEP Act is crucial and will ensure that every viable defense or avenue for a sentencing reduction is explored and utilized on your behalf. Lawyers at the Law Offices of Jeffrey Lichtman have successfully handled countless federal cases, exploiting holes in the prosecution’s evidence to achieve the best possible result for our clients. Contact us today at (212) 581-1001 for a free consultation.

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Judge Patti SarisThe First Step Act of 2018[1] should be renamed the Major Step Act because of the dramatic reforms it made to the federal criminal justice system, especially with respect to sentencing. The act passed in the final days of the 115th Congress by large margins (87-12 in the Senate and 358-36 in the House) and became effective on Dec. 21, 2018.

While many have heralded the legislation as an example of bipartisan cooperation, the press has said surprisingly little about the potential effects of the act on reducing over-incarceration at the federal level.

The report included many recommendations for reforms that ended up in the First Step Act. During the intervening years, the commission worked closely with Congress to provide the data and evidence needed to craft the legislation. Below I highlight just some of the ways in which the commission contributed to this reform effort.

First, the Fair Sentencing Act of 2010[3] sought to rectify the notorious crack/powder cocaine sentencing disparity by amending the drug quantity ratio used to determine sentence minimums from 100:1 to 18:1.[4] Effective Nov. 1, 2011, the commission reduced the sentencing guidelines for crack cocaine and made the reduction retroactive. However, this retroactive change could not offset statutorily required mandatory minimums.

The First Step Act rectified this inequity by making the sentence reductions for crack cocaine offenses retroactive.[5] The amendment is expected to impact around 2,600 federal defendants sentenced before Aug. 3, 2010, who did not already receive the benefit of a penalty reduction.[6] According to commission statistics, almost 90% of the offenders who will benefit are black.[7]

The First Step Act reduced these penalties from 20 years to 15 years, and from life to 25 years, respectively.[10] Further, in order to trigger the sentence enhancement, a defendant must have already served at least a 12-month term of imprisonment for a prior drug offense.[11] This requirement shields low-level offenders with less serious criminal histories from the enhancement.

While the First Step Act expanded predicate offenses for Section 851 to include "serious violent felonies," this development (which was not based on a Sentencing Commission recommendation) is also restricted to defendants who have previously served at least a 12-month sentence.[12]

Third, the commission recommended revising a statute which allowed for "stacking" of mandatory sentencing terms for multiple offenses committed by a defendant during a single time period, if the defendant possessed a gun.[13] The stacking allowed a first-time offender to potentially receive a life sentence. The First Step Act amended the statute by providing that the 25-year penalty for a second or subsequent offense is only triggered if the defendant has a prior conviction that has become final.[14]

Fourth, the commission also recommended that Congress expand the applicability of the "safety valve" provision.[15] The First Step Act adopted and expanded upon the recommendation. The provision provides a "safety valve" to avoid mandatory minimum sentences for certain nonviolent drug offenders with less significant criminal histories.[16] Prospectively, this amendment is expected to benefit over 2,000 offenders annually, almost half of whom are Hispanic and more than 20% of whom are black.[17]

Through the First Step Act, Congress significantly expanded prisoners" access to federal courts to petition for compassionate release. The legislation allows a prisoner facing "extraordinary and compelling" circumstances, or has met certain age and sentence requirements, to file a petition with the court if he has exhausted all his administrative rights to appeal a failure of BOP to bring a motion on the prisoner"s behalf, or after the lapse of 30 days from the warden"s receipt of such a request, whichever is earlier.[19]

Sixth and finally, I wanted to highlight two provisions that, while not recommended by the commission"s reports, are nevertheless important sentencing reforms. The First Step Act expanded the number of good time credits for each year of incarceration served from 47 to 54 and applies to individuals currently in custody.[21] The commission estimates that over 140,000 prisoners will be impacted by the change when it goes into effect.[22]

The act also directs the BOP to screen inmates for dyslexia and to include treatment in recidivism reduction programs, building on work performed by a member of the sentencing commission who had advocated for dyslexic and learning disabled inmates at FCI Dublin in California.[25]

Overall, the First Step Act includes significant and necessary reforms to address the issues of mass incarceration at the federal level. While I was chair of the Sentencing Commission, the federal prison population surpassed 217,000 and was still climbing. Defendants with drug charges constituted over half of the BOP"s population, with black men receiving harsher sentences than similarly situated white men.

As a prime example, it studied the effect of making the earlier-mentioned reductions in the crack guideline retroactive and found no increase in recidivism. In 2014, this evaluation led the way to reducing all drug penalties by two guideline levels, making more than 40,000 defendants retroactivity eligible for reductions of on average 25 months.[27] This evidence-based guideline reduction received almost no opposition from the judicial, executive or legislative branches.

In her new book "Prisoners of Politics: Breaking the Cycle of Mass Incarceration,"[28] professor (and former sentencing commissioner) Rachel Barkow advocates for "expert agencies and commissions that are charged with using data and facts to make and recommend policies that maximize public safety."[29] The book examines the role of politics in creating the crisis of mass incarceration, and Barkow points out that the United States Sentencing Commission, in particular, faces certain political realities. However, she also suggests ways to design agencies and commissions so that they may better withstand political pressures.[30]

Today, the United States Sentencing Commission sits without a confirmed chair, or even a quorum of members. This severely impairs the commission"s ability to study further reforms. For example, with only two current commissioners, the commission is unable to pass amendments to make the sentencing guidelines consistent with the statutory provision expanding the "safety valve."[31] While the research and training activities of the commission continue, the commission needs a quorum.

Given the important role the commission has played in influencing the reforms found in the First Step Act, collaborative commissioners from both parties should be nominated and confirmed to continue to evaluate and advocate — in a bipartisan way — for effective sentencing policy.

[5] Fair Sentencing Act § 2 (amending the sentencing provisions of 21 U.S.C. § 841(b)(1) and 21 U.S.C. § 960(b) to address the cocaine sentencing disparity).

[7] U.S. Sentencing Comm"n, Sentence and Prison Impact Estimate Survey, at 1, https://www.ussc.gov/sites/default/files/pdf/research-and-publications/prison-and-sentencing-impact-assessments/January_2019_Impact_Analysis.pdf (last visited Apr. 10, 2019).

[17] First Step Act § 402 (broadening applicability of existing safety valve sentencing provision from just defendants who did not have more than 1 criminal history point to include those defendants who do not have more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, and who do not have a 3-point or violent 2-point offense).

[23] U.S. Sentencing Comm"n Impact Estimate Survey, at 1. The Act set the effective date as the date that the Attorney General completes and releases the risk and needs assessment system required by the Act.

[24] First Step Act § 101 (inserting 18 U.S.C. § 3632 which requires the Attorney General to develop and release publicly a risk and needs assessment system including guidance on the type, amount, and intensity of evidence-based recidivism reduction programming and productive activities for each prisoner).

[26] See First Step Act § 101 (inserting § 3632(h) instructing the Attorney General to develop a program to screen for dyslexia and incorporate treatment into evidence-based recidivism reduction programs).

[27] U.S. Sentencing Comm"n, Summary of Key Data Regarding Retroactive Application of the 2014 Drug Guidelines Amendment (July 2014) at 2, available at https://www.ussc.gov/sites/default/files/pdf/research-and-publications/retroactivity-analyses/drug-guidelines-amendment/20140725-Drug-Retro-Analysis.pdf. See also U.S. Sentencing

Comm"n, 2014 Guidelines Amendment Retroactivity Report (Aug. 2018) Tbls. 1 & 8 (demonstrating 49,911 total motions and 11,640 denied because offender ineligible under §1B1.10), Tbl. 7 (total average decrease 25 months), available at https://www.ussc.gov/sites/default/files/pdf/research-and-publications/retroactivity-analyses/drug-guidelines-amendment/20180829-Drug-Retro-Analysis.pdf.

[31] The safety valve provision at § 5C1.2 of the United States Sentencing Guidelines Manual differs from the First Step Act reforms, codified at 18 U.S.C. § 3553(f).

The First Step Act, formally known as the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, is a bipartisan criminal justice bill passed by the 115th Congress and signed by President Donald Trump in December 2018. The Act enacted several changes in U.S. federal criminal law aimed at reforming federal prisons and sentencing laws in order to reduce recidivism, decreasing the federal inmate population, and maintaining public safety.

An initial version of the First Step Act, H.R. 5682, was sponsored and introduced by Rep. Doug Collins [R-GA-9] on May 7, 2018.U.S. Attorney General to develop this system along with evidence-based recidivism reduction programs for federal prisoners.Bureau of Prison (BOP) employees to store firearms in designated off-site firearms storage facility or vehicle lockbox and carry concealed weapons outside of the prison (Section 202); prohibit the use of restraints on prisoners during pregnancy, labor and postpartum recovery, except where a health care provider determines otherwise or where the prisoner is an unreasonable flight risk or public safety threat (Section 301); place prisoners as close as possible to (and no more than 500 miles away from) their primary residence where practicable (Section 401); expand compassionate release (also "reduction in sentencing" or "RIS") for terminally ill patients and reauthorize the Second Chance Act of 2007 (Section 403); mandate the Bureau of Prisons to provide identification to returning citizens (Section 404); authorize new markets for Federal Prison Industries (Section 406); mandate de-escalation training for correctional officers and employees (Section 407); direct reporting on opioid treatment and abuse in prisons (Section 408); improve availability of feminine hygiene products in prison (Section 412); and other actions.

After introduction, the bill was immediately referred to the House Committee on the Judiciary, and was subsequently voted out of committee—accompanied by a report—on a 25–5 vote on May 22, 2018. The House Committee"s report highlighted Bureau of Prison data about recidivism, and warned of the fiscal and social costs of repeated arrest, conviction and incarceration.Jerry Nadler [D-NY-10], who acknowledged that though the bill did not include sentencing reform as some would have liked, it was an "important first step" that was able to unify groups as divergent as #cut50 and the Koch Foundation.

However, the Senate did not ultimately vote on H.R. 5682, nor did it consider S. 2795—a companion bill to H.R. 5682 that was introduced in the Senate on May 7, 2018, by Senator John Cornyn [R-TX] and referred to the Senate Judiciary Committee. The Senate actually did not vote on criminal justice reform until December 2018 due to disagreement about the scope of the First Step Act. Without the inclusion of meaningful sentence reform akin to the measures proposed in the Sentencing Reform and Corrections Act of 2015, many Senate Democrats were unwilling to support it.Chuck Grassley [R-IA] introduced a version of bill (S. 3649) on November 15, 2018, that incorporated the correctional reforms from S. 2795/H.R. 5682, added supplemental measures, and—importantly—included new sentencing reform provisions.

On December 12, Senator Grassley [R-IA], along with cosponsor Senator Dick Durbin [D-IL], introduced a revised version of S. 3649 as S. 3747, which preserved S. 3649"s content and added an additional title reauthorizing and amending the Second Chance Act of 2007.Mitch McConnell [R-KY] on December 13, 2018 substituted the content of The First Step Act (S. 3747) into a S. 756—a substantively unrelated bill called the Save Our Seas Act, which was originally introduced by Senator Dan Sullivan [R-AK] on March 29, 2017—in order to solicit final amendments and bring the matter to a vote. (Due to this procedural move—known as "amendment in the nature of a substitute"Tom Cotton [R-AR] and John Kennedy [R-LA]. They introduced controversial amendment 4109 to S. 756 to expand the types of convictions that would render an inmate ineligible for good-time credits (the crime "exclusion list") and to require prison wardens to notify every crime victim of the release date of the inmate associated with their offense, among other information-sharing measures.

In his statement to the Senate prior to the vote encouraging bill passage and discouraging the Cotton-Kennedy amendments, Senator Dick Durbin [D-IL] explained that the notification requirements of the Cotton-Kennedy amendments duplicated already-existing notification and information-sharing provisions of the Crime Victim Rights Act while undesirably disallowing victims to opt out of notifications.

Senators Chuck Grassley [R-IA], Dick Durbin [D-IL], Cory Booker [D-NJ], and Mike Lee [R-UT] championed the First Step Act in the Senate and built a bipartisan coalition to pass the legislation. In the House, Representatives Doug Collins [R-GA-9], Hakeem Jeffries [D-NY-8] and John Lewis [D-GA-5] promoted similar legislation, albeit without sentencing reform provisions. Though President Donald Trump was initially skeptical of the legislation, intense lobbying by his son-in-law and senior adviser Jared Kushner eventually persuaded President Trump to back the bill and push for a floor vote in 2018.Murdoch family (who own Fox News) to encourage positive coverage, appearing on Fox, securing Vice President Mike Pence"s support, scheduling policy time discussions with Trump, and arranging meetings with celebrities like Kanye West and Kim Kardashian and media players like Van Jones to lobby Trump.

Notable conservative lawmakers who opposed the bill included Senators Tom Cotton [R-AR], John Kennedy [R-LA], Ben Sasse [R-NE] and Lisa Murkowski [R-AK]. Twelve Republican senators in total voted against the First Step Act.Ted Cruz [R-TX] was originally opposed to the legislation; he ultimately backed the bill after an amendment he drafted to expand the crime exclusion list was adopted.

Title I directs the U.S. Attorney General to develop and publicly announce a risk and needs assessment system for all Federal Bureau of Prison inmates within 180 days of enactment, and to recommend evidence-based recidivism reduction activities. This risk and needs assessment system, once developed, is to be used under the First Step Act to classify prisoner risk of recidivism, match prisoners with suitable recidivism reduction activities based on their classification, inform housing decisions so that prisoners in similar risk categories are grouped together, and create incentives for participation in and completion of recidivism-reduction activities. These incentives include increased access to phone privileges, transfer to penal institutions closer to a prisoner"s primary residence, and time credits to reduce sentence length. However, time credit rewards are not available to all prisoners; 18 U.S.C. § 3632(d)(4)(D)—where Title I of the First Step Act was codified—details nearly 70 types of convictions that render an inmate ineligible to accrue time credits for successfully completing recidivism-reduction activities.

Title I of the First Step Act, as codified at 18 U.S.C. § 3621(h), also directs the Director of Bureau of Prisons to perform an initial risk and needs assessment of all federal prisoners within 180 days of the Attorney General"s release of the risk and needs assessment system, and to begin expanding recidivism-reduction activities.

Title IV makes a variety of sentencing reforms. Section 401 amends the Controlled Substance Act (21 U.S.C. § 801 et seq.) to constrain the application of sentencing enhancements for defendants with prior drug felony convictions by redefining “serious drug felony” and “serious violent felony,” to reduce the mandatory minimum sentence for a second violation from 20 years to 15 years, and to reduce the mandatory minimum sentence for a third violation from life to 25 years. It makes similar revisions to the Controlled Substance Import and Export Act at 21 U.S.C. § 960(b).

Section 402 expands the number of defendants who may be eligible for "safety valve" relief. Prior to the First Step Act, only defendants with one "criminal history point" could receive sentences below the mandatory minimums, but under the Act, defendants with up to four points (depending on the type of offense) may be eligible.

Section 403 eliminates the "stacking" provision of 18 U.S.C. § 924(c).concurrently charged offense. The First Step Act clarified that gun enhancements can only be added where the defendant was previously (e.g. non-concurrently) convicted of a gun violation, so as to restrict sentencing enhancements to "true" repeat offenders.

Section 404 applies the Fair Sentencing Act of 2010—which, among other things, reduced the discrepancy between sentences for crack cocaine and powder cocaine convictions—retroactively. Under the First Step Act, prisoners who committed offenses "covered" by the Fair Sentencing Act are permitted to petition a court directly to reconsider their sentence (after certain administrative steps are satisfied).

Title V reauthorizes the Second Chance Act of 2007 from 2019 to 2023. This reauthorization directs the Attorney General to make grants to state and local projects which support the successful reentry of juvenile and adult prisoner populations into their communities after incarceration—including projects which improve academic and vocational education for offenders during incarceration.

Title VI includes more than ten miscellaneous provisions, including those that place prisoners as close as possible to (and no more than 500 miles away from) their primary residence where practicable (Section 601); encourage home confinement for low risk prisoners (Section 602); lower the eligibility age and reduce to the time-served requirement for compassionate release, and broaden the prisoner population eligible for compassionate release to include terminally ill offenders (Section 603); mandate the Bureau of Prisons to provide identification to returning citizens (Section 604); authorize new markets for Federal Prison Industries (Section 605); mandate de-escalation training for correctional officers and employees (Section 606); direct reporting on opioid treatment and abuse in prisons (Section 607); direct data collection on various metrics for inclusion in the National Prisoner Statistics Program (Section 610); improve availability of feminine hygiene products in prison (Section 611); and prohibit the use of solitary confinement for federally-incarcerated juveniles, excepting certain circumstances (Section 613).

Scope of Impact: Within the first year of enactment, more than 3,000 federal prisoners were released based on changes to the good-time credits calculation formula under the First Step Act, and more than 2,000 inmates benefited from sentence reductions from the retroactive application of the Fair Sentencing Act of 2010.convicted of possessing or trafficking, but the quantity that records suggest the offender possessed or trafficked. The latter figure is typically substantially larger. In some instances, DOJ prosecutors are trying to "reincarcerate offenders already released under the First Step Act."

Budget: Though the First Step Act authorizes Congress to appropriate $75 million per year between 2019 and 2023, only $14 million was explicitly earmarked for funding the legislation when President Trump released his 2020 budget priorities in March 2019. This lead First Step Act advocates to worry that the bill"s underfunding represented an attempt to "starve it to death".

Transparency of risk and needs assessment system: In July 2019, the Department of Justice announced the creation of the risk and needs assessment tool mandated by the First Step Act legislation. Dubbed PATTERN ("Prisoner Assessment Tool Targeting Estimated Risk and Needs"), the tool is "designed to predict the likelihood of general and violent recidivism for all BOP inmates."Leadership Conference on Civil and Human Rights, The Leadership Conference Education Fund, the American Civil Liberties Union, the Center on Race, Inequality, and the Law at NYU Law, The Justice Roundtable, Media Mobilizing Project, and Upturn replied in a joint letter to DOJ outlining concerns about the transparency of PATTERN"s algorithmic development, and its potential for exacerbating existing racial discrepancies in the criminal justice system.

On April 3, 2020, Attorney General William Barr issued a memo pursuant to § 12003(b)(2) of the CARES Act directing the BOP to review the sentences of all prisoners with COVID-19 risk factors and prioritize their transfer to home confinement, starting with the most at-risk facilities.United States v. McCarthy, Judge Hall of the United States District Court of Connecticut agreed with an inmate, finding that a for a 65-year-old prisoner suffering from COPD, asthma, and other lung-related ailments, the risk of infection from COVID-19 in prison was an "extraordinary and compelling reason" to justify his release from BOP custody, subject to post-release supervision conditions.

At a celebration designating April 2019 First Step Act Month, President Trump announced that the next criminal justice priority for his administration would be a Second Step Act focusing on easing employment barriers for formerly incarcerated people.

In June 2020, a unanimous panel of the United States Court of Appeals for the Seventh Circuit including then-Judge Amy Coney Barrett, held that during resentencing under the Act, a previous sentence over double the United States Federal Sentencing Guidelines range could not simply be reimposed without explanation.

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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.

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:

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.’’

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.

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.

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.

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)

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.

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.

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.

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.

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:

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:

‘‘(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 into the United States for an immoral purpose.

‘‘(lviii) Section 601 of the National Security Act of 1947 (50 U.S.C. 3121), relating to the protection of identities of certain United States undercover intelligence officers, agents, informants, and sources.

‘‘(lix) Subparagraph (A)(i) or (B)(i) of section 401(b)(1) of the Controlled Substances Act (21 U.S.C. 841(b)(1)) or paragraph (1)(A) or (2)(A) of section 1010(b) of the Controlled Substances Import and Export Act (21 U.S.C. 960(b)), relating to manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, dispense, or knowingly importing or exporting, a mixture or substance containing a detectable amount of heroin if the sentencing court finds that the offender was an organizer, leader, manager, or supervisor of others in the offense, as determined under the guidelines promulgated by the United States Sentencing Commission.

‘‘(lx) Subparagraph (A)(vi) or (B)(vi) of section 401(b)(1) of the Controlled Substances Act (21 U.S.C. 841(b)(1)) or paragraph (1)(F) or (2)(F) of section 1010(b) of the Controlled Substances Import and Export Act (21 U.S.C. 960(b)), relating to manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense, a mixture or substance containing a detectable amount of N-phenyl-N-[1-(2-phenylethyl)-4- piperidinyl] propanamide, or any analogue thereof.

“‘(lxi) Subparagraph (A)(viii) or (B)(viii) of section 401(b)(1) of the Controlled Substances Act (21 U.S.C. 11 841(b)(1)) or paragraph (1)(H) or (2)(H) of section 1010(b) the Controlled Substances Import and Export Act (21 U.S.C. 960(b)), relating to manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense, or knowingly importing or exporting, a mixture of substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers, if the sentencing court finds that the offender was an organizer, leader, manager, or supervisor of others in the offense, as determined under the guidelines promulgated by the United States Sentencing Commission.

‘‘(lii) Subparagraph (A) or (B) of section 401(b)(1) of the Controlled Substances Act (21 U.S.C. 841(b)(1)) or paragraph (1) or (2) of section 1010(b) of the Controlled Substances Import and Export Act (21 U.S.C. 960(b)), relating to manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense, a controlled substance, or knowingly importing or exporting a controlled substance, if the sentencing court finds that—(I) the offense involved a mixture or substance containing a detectable amount of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide, or any analogue thereof; and (II) the offender was an organizer, leader, manager, or supervisor of others in the offense, as determined under the guidelines promulgated by the United States Sentencing Commission.”

The First Step Act bars non-citizens who are subject to a final removal order from APPLYING time credits under the bill. That means time credits could be earned, but they cannot be used for early release to pre-release custody.

The new law requires BOP to individually reassess each inmate who is participating in the risk assessment programs or “productive activities” at least every year. Prisoners who have less than 5 years until their release and are at a medium or high risk of recidivating assessment must receive more frequent evaluations.

Unsurprisingly, the First Step Act also requires BOP to establish policies and procedures for the reduction of rewards and incentives prisoners earn under the First Step Act. Importantly, any reduction that includes the loss of time credits requires written notice to the prisoner and cannot include the loss of any future time credit.

Rather than start from scratch, the First Step Act directs the Attorney General to evaluate the effectiveness of currently existing programs in the BOP and at state correctional facilities. The new law instructs the Attorney General to id