The First Step Act: A Five-Year Review and the Path Forward

FIRST STEP ACT IN REVIEW

Signed into law in December 2018, the First Step Act (FSA) now allows federal inmates to significantly reduce their actual penal custody time. That fits into the primary goal of The Act, which is to reduce recidivism among nonviolent offenders through greater emphasis on rehabilitation in the Bureau of Prisons.

Prior to the FSA, federal inmates earned 54 days a year off their sentence under what is known as Good Conduct Credit (GCC). For example, a federal inmate entering the Bureau of Prisons (BOP) with a ten-year sentence received 540 days of credit off that sentence (or roughly 15 percent).

 In effect, the inmate actually served 3,110 days in custody rather than 3,650 days. 

In practice, an inmate can now earn up to an additional 365 days of Good Conduct by participating in prison rehabilitation programs or other self-help activities; and another 595 days off their penal sentence to be served in home confinement. 

The Act allows federal inmates with documented substance abuse histories to earn up to another year off their sentence if they participate in the BOP’s Residential Drug Abuse Program.

Other benefits of The Act, as spelled out by the First Step Alliance, include:

• Curbing Mandatory Minimums: The First Step Act gives judges more flexibility regarding mandatory minimum sentencing; specifically, judges can now base sentencing decisions on individual character and circumstances rather than compelled by sentencing guidelines, particularly in drug offenses.
• Fair Sentencing Act of 2010 Made Retroactive: This retroactive application allows some drug offenders to be eligible for release. Affecting thousands of offenders each year, this provision reduced mandatory minimums for large quantities of drug from 20 to 15 years and reduced the federal “three strikes” law from life to 25 years.
• Places Prisoners in Facilities Closer to Home: The Act requires federal government to place prisoners in a facility within 500 miles of their primary residence. Facilitates family visitation and creates easier transition upon release.
• Expansion of Women’s Rights: The Act provides free feminine products to women and prohibits the use of restraints on pregnant women and those in postpartum recovery.
• Increases Funding for Job Training and Education Programs: The Act provides for increased funding for programs that teach life skills, trade skills, and other programs with “real world” applications. Religious organizations and other service providers are allowed access to penal facilities to assist in administering these programs.
• Greater Use of Halfway Houses and the Home Confinement System: The ACT allows inmates to earn 10 days Good Conduct Credit of halfway house time for every 30 days of rehabilitation and other approved programs completed. The Act also expands eligibility for compassionate release, such as elderly inmates who are terminally ill, and inmates over age 65 who have completed two-thirds of their sentence with the remainder generally spent in home confinement.

Nearing its fifth anniversary, legal scholars and penal experts are beginning to assess the successes of the First Step Act. 

In an August 23, 2023 brief for The Sentencing Project, Ashley Nellis and Liz Komar point to reports from the U.S. Department of Justice that touts some of the successes of The Act:. 

1. The recidivism rate of the roughly 30,000 inmates released under FSA is 12 percent (only one of every ten released rearrested or reincarcerated) as compared to 45 percent of those under other statutory provisions.
2. 58 percent of those released under FSA were drug offenders, and only 13 percent were rearrested or reincarcerated;
3. The BOP population decreased by roughly 65,000 from 1980 to 2022.
4. Between 2022 and 2023, rehabilitation programming g expanded by 35 percent in the BOP;
5. More than 3,000 inmates earned their GEDs between 2020 and 2021.
6. More than 4500 inmates have been released through compassionate release;
7. More than 7200 inmates are currently completing their sentences in home confinement while nearly 5,000 others completed their sentences in home confinement.
8. More than 4,000 inmates have been released through the retroactive application of the Fair Sentencing Act of 2010, of which 92 percent were black male offenders.

Nellis and Komar also spelled out a realistic path forward for the FSA. 

Pointing to the success of the FSA in reducing a bloated federal prison system brought about by harsh mandatory minimum and sentencing enhancement legislation enacted in the 1980s and 1990s, Nellis and Komar stressed that it would be wise for Congress to enact three pieces of additional legislation that would both enhance and expand the benefits of FSA. 

These bipartisan supported pieces of legislation are First Step Implementation Act (FSIA),  the Safer Detention Act (SDA), and the EQUAL Act (EA). Nellis/Komar outlined the objective off each Act:

• The First Step Implementation Act would make “key provisions of the First Step Act retroactive.” The FSA begins with the premise that some mandatory minimums are too long and shortened them. However, that benefit applied only to those inmates sentenced after the enactment of FSA.  The FSIA would make that benefit retroactive to inmates sentenced before December 2018. Additional benefits of the FSIA would allow “certain drug offenders” and “stacked gun offenders” to seek shorter sentences in alignment with sentences being imposed today for those offenses. But perhaps the most significant benefit of the FSIA would be the provision allowing inmates who committed their crimes under the age of 18 and who have served at least 20 years to apply for sentence reductions.
• The Safer Detention Act would correct a fundamental flaw in the FSA –one that precludes those convicted prior to November 1987 from applying for judicial compassionate release. The SDA would make these inmates—some of the oldest in the federal prison system—eligible for compassionate release if they have served a “majority of their sentence” and the BOP “deems them low risk.” Compassionate release would allow them to finish their sentences at home with their families through a “home detention pilot program.”
• The EQUAL Act is short and simple: it would reform cocaine sentencing provisions “by prospectively and retroactively eliminating the infamously racist disparity in mandatory minimum thresholds between crack and powder cocaine.”

The FSA is exactly what it implies: a first step toward enhancing BOP rehabilitation programming and making earned good time credit more equitable. It now rests with the BOP to ensure that, as Nellis and Komar write, “the First Step Act achieves its full rehabilitative potential.”

I would add my minor voice to the chorus of those urging a bipartisan Congress to enact the First Step Implementation Act,  the Safer Detention Act, and the EQUAL Act. These three pieces of legislation would not only improve the effectiveness of federal inmate rehabilitative programming but also bring greater fairness to the federal sentencing scheme. 

Such federal legislative efforts could as a model for states to emulate.