The First Step Act (S.756 - 115th Congress) was signed into law on 12/21/18 and now we have the clearest picture of what the First Step Act means for federal SO inmates. The short answer is that very few people, especially SOs, will benefit in any way from the First Step Act; the Act is aimed primarily at “low level drug offenders”. It is important to note that S.756 was originally a completely different bill called the “Save Our Seas Act,” but the text of that bill was replaced with the First Steps Act (which was originally S.3649) so people researching the bill progression on the congress.gov site or other bill tracking sites need to know this so they won’t get confused. Also, I’m only covering the parts relevant to SOs so I won’t be covering every provision in this Act.
The First Step Act contains 6 Titles: Title I covers “Recidivism Reduction,” creating various prison programs that certain inmates can take to earn credits towards early release, among other privileges. Title II is the BOP Secure Firearms Storage. Title III prohibits restraints on pregnant and post-partem women. Title IV covers sentencing reforms. Title V reauthorizes the Second Chance Act of 2007. Section VI covers miscellaneous criminal justice issues.
Title I, Section 101 creates a “Risk and Needs Assessment System” and will amend 18 USC 229. Under subsection 3632, the USAG will have 210 days to develop & publicly release a risk and needs assessment program. (Of course, it will likely take longer to actually implement the plan.) This plan will include incentives for program participation, such as phone and/or video conferencing privileges up to 30 min/day and 510min/mo., transfers to institutions closer to release residence, and optional incentives like increased commissary limits, more email privileges, consideration for transfer to preferred housing units, and other incentives.
Subsection 3632(d) covers rewards, and of particular interest is 3632(d)(4) which allows prisoners to earn 10 days good time for every 30 days of successful participation in prison programs, plus those deemed a minimum or low-risk of recidivism can earn an additional 5 days for every 30 days of successful participation (this does not apply to programs taken BEFORE this law is implemented). Time credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in prerelease custody or supervised release. These credits will NOT be retroactively applied to your participation in past programs.
Subsection 3632(d)(4)(D) is the list of inmates NOT eligible for the above-listed incentives. Again, I’m only covering SO-related offenses ineligible for the incentive programs: 18 USC 116 (Female Genital Mutilation), 18 USC 55 (kidnapping)18 USC 109A (sexual abuse), 18 USC 2250 (Failure To Register as SO), 18 USC 2251 (Sexual Exploitation of Children), 18 USC 2251A (Buying/ Selling Children), 18 USC 2252 (Certain activities relating to material involving the sexual exploitation of minors), 18 USC 2260 (Production of sexually explicit depictions of a minor for importation into the US), OR 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 (18 USC 1111), voluntary manslaughter (as described in 18 USC 1112), assault with intent to commit murder (18 USC 113(a)), aggravated sexual abuse and sexual abuse (18 USC 2241 and 2242), abusive sexual contact (18 USC 2244(a)(1) and (a)(2)), kidnapping (18 USC 55), carjacking (18 USC 2119), arson (18 USC 844(f)(3), (h), or (i)), or terrorism (18 USC 113B). On a related note, if you’re subject to deportation after you complete your sentence, you are ineligible for this program.
[ADDENDUMS TO THIS FIRST STEP ACT REPORT: Another reader pointed out that I omitted one type of offense in that lengthy list of ineligible offenses under Title 1 of the First Step Act. “One of the ineligible offenses under Subsection 3632(d)(4)(D) is "(xxi) Any offense under chapter 77, relating to peonage, slavery, and trafficking in persons, except for section 1593 through 1596". Included in this chapter are sex offenses (1591, 1592, & 1594) used to prosecute "pimps, prostitutes, and Johns”. Also, it seems that when I copy-pasted the list of ineligible offenses, I omitted the fact that 18 USC 2252A, Certain activities relating to material constituting or containing child pornography, ARE ineligible for the Title 1 programs in the First Step Act.]
Under Title I, Sec. 602, the AG has 180 days to implement the plan once the AG report mentioned in Sec. 601 is finalized, including assigning risk levels to prisoners. Thus, the Act gives the AG until 1/15/2020 (390 total days from 12/21/18) to implement this incentive program. Expect a request for an extension of that deadline.
Under Title I, Sec. 102, (b)(1)(A), 18 USC 3624 is amended in subsection (b)(1) -- (i) by striking “beyond the time served, of up to 54 days at the end of each year of the prisoner’s term of imprisonment, beginning at the end of the first year of the term,” and inserting “of up to 54 days for each year of the prisoner’s sentence imposed by the court,”; and (ii) by striking “credit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence” and inserting “credit for the last year of a term of imprisonment shall be credited on the first day of the last year of the term of imprisonment” and replacing it with a section discussing prerelease options for eligible prisoners.
In light of the amount of misinformation the prison “grapevine” tends to spread, I want to point out that the First Step Act DOES NOT increase good time from 47 days to 54 days. 18 USC 3624(b)(1) already offered UP TO 54 days a year, so the First Step Act didn’t really change good time. Since the law states the prisons can offer UP TO 54 days means that prisons can offer any number of days from none to 54 days. This does not mean any of you WILL earn 54 days a year.
Nothing in Title IV regarding sentencing reforms benefit anyone except non-violent drug offenders. Title V only covers reauthorizing existing programs under the Second Chance Act of 2007 and making a few semantic changes to the language of the bill.
Under Title VI, Sec. 603(a)(5), Section 231(g) of the Second Chance Act of 2007 (34 USC 60541(g)) is amended to create progrms for terminally ill patients in need of special care. However, eligibility for this program is defined as “serving a term of imprisonment based on conviction for an offense or offenses that do not include any crime of violence (18 USC 16 (a)), sex offense (sec. 111(5) of 34 USC 20911(5)), offense described in section 18 USC 2332b(g)(5)(B) or 18 USC 37.”
Finally, under Title VI, Sec. 609, administrative changes as listed below:
ENSURING SUPERVISION OF RELEASED SEXUALLY DANGEROUS PERSONS.
(a) Probation Officers.—Section 3603 of title 18, United States Code, is amended in paragraph (8)(A) by striking “or 4246” and inserting “, 4246, or 4248”.
(b) Pretrial Services Officers.—Section 3154 of title 18, United States Code, is amended in paragraph (12)(A) by striking “or 4246” and inserting “, 4246, or 4248”. This is merely an administrative change referring to record keeping. 4246 refers to 18 USC 4243 - Hospitalization of a person found not guilty only by reason of insanity, and 4248 refers to 18 USC 4246 - Hospitalization of a person due for release but suffering from mental disease or defect.
In sum, very few people will see any real benefit from the First Steps Act. If you do, consider yourself one of the lucky ones.
The Bill Text can be found at https://www.congress.gov/bill/115th-congress/senate-bill/756/text