First Step Act-Basics

People facing challenges with sentencing or imprisonment can empower themselves by learning more about reforms that benefit them. This article offers insight into the most significant reform legislation in decades: The First Step Act.

My name is Michael Santos, and I work with others on our team at Prison Professors. Together, we aspire to help people make better decisions. Today’s article offers insight into the First Step Act.

First Step Act: A Brief History

The First Step Act (FSA) made significant strides in prison reform. We should all be grateful to Shon Hopwood for the work he did to advocate for this law. Shon Hopwood, our former partner, does a lot of work to improve conditions for people that experience the criminal justice system.

After watching the 60-Minutes episode that profiled Shon, Jared Kushner reached out to invite Shon. He invited Shon to participate as a subject-matter expert on the need for reforms to the criminal justice system. From that moment going forward, Shon helped out extensively.

Shon’s inspiring story shows us a great deal. He validates a message we all live by.

  • A person may have made bad decisions in the past. Regardless of those challenges, a person can make amends. A person can build a record showing he or she is capable of living responsibly.

As a young man, Shon robbed banks. Authorities arrested him and charged Shon with five armed bank robberies. While serving a decade in prison, Shon learned to advocate for others. Despite serving time in prison, Shon wrote briefs that resulted in relief for other people in prison. Through his work, people got out of prison early. Some of Shon’s work resulted in victory at the U.S. Supreme Court level. Upon his release from prison, Shon earned a scholarship from the Bill and Melinda Gates Foundation. He earned a law degree at the University of Washington; he became a clerk for the DC Circuit Court, and he now serves as a Georgetown Law Professor. Simultaneously to all of those accomplishments, Shon is a relentless advocate for criminal justice reform and a board member for the Families Against Mandatory Minimums.

Thanks to leadership efforts from Shon and others, President Trump signed the First Step Act in December, 2018.

The FSA includes many reforms that benefit people in federal prison. The law should reduce recidivism, improve conditions at federal prisons, and open opportunities for other reforms that will lead to better outcomes for people and communities.

I.  Sentencing Reform

The FSA sentencing reform provisions may reduce the length of time that people serve in prison. As a result of the legislative change, judges have the discretion to let people out of prison early.

The reforms took effect when President Trump signed the law. This article offers insight into many changes brought forth by the FSA.

Community Confinement and Home Confinement:

The FSA introduced a new concept called “Earned Time,” which would benefit people going into the federal system that participated in specific programs—provided the BOP approved those programs as meeting the requirements of the First Step Act.

Under the FSA, people may receive up to 15 days of “Earned Time” each month, under a few conditions, including:

  • The BOP’s risk-assessment tool categorized the person has being of low- or minimal likelihood of going back to federal prison.
  • The person completes 30 days of programming in a BOP-authorized course.

Earned time differed from the concept of Good Time in the following significant ways:

  • Good time credits result in a time reduction from the sentence imposed.
  • Earned time credits result in a bank of time that the person may redeem at the end of the sentence, to transfer to serve the latter portion of the sentence on home confinement rather than in a federal prison.
  • Earned time credit is in addition to Good Time.

All people going into the prison system should recognize the Bureau of Prisons as a conservative government agency. As such, changes from the First Step Act will role out slowly.

In a previous article, we wrote about the Residential Drug Abuse Program. As someone that served time in prison before the role out of the RDAP program, I saw the many iterations the program went through over the past three decades.

We can expect the First Step Act to have a similar evolution. The more people know and understand prison reform legislation, the more qualified they will be to get the best outcomes at every stage in the journey.

Elderly Home Detention through the First Step Act:

As part of the FSA, Congress reauthorized the 2007 Second Chance Act with the Second Chance Reauthorization Act (SCRA). The reauthorized program expanded the program’s scope to allow the BOP to place elderly non-violent offenders that met specific criteria on home confinement to serve the remainder of their sentences. Originally, Congress authorized the BOP to conduct this pilot program at only one facility back in 2009 and 2010.

The FSA reauthorized the Elderly Home Detention program for fiscal years 2019-2023. The FSA also expanded eligibility requirements for the program. Accordingly, the eligibility requirements now includes:

1.  Program availability at all BOP facilities;

2.  The qualifying age reduced from 65 years to 60 years of age; and

3.  Only two-thirds of the sentence must be served to be eligible.

Previously, policies required that a person serve 75% of the sentence, or ten years if the person had a sentence of longer than 14 years. The reform struck that requirement, making people eligible for release to home confinement for compassion reasons, provided that the person can show an “extraordinary and compelling reason.

First Step Act and Compassionate Release Reform

The Second Chance Act offered a step in the right direction, but it had limitations. A person could only get compassionate release if the BOP filed a motion with the sentencing court. As I experienced, the BOP, people would have a better chance of receiving a visit from Santa Clause than getting the BOP to file a motion for compassionate release. Restrictions and limitations included:

  1. Only the BOP rather than a person serving a sentence, could file a motion for compassionate release; and
  2. Even if a person met the BOP criteria for compassionate release, the law did not provide a mechanism that would allow a person to file a motion in court for a judge to review the BOP’s decision.

As a result of such structuring, few people got any access to compassionate release. The First Step Act brought much needed reform, as described below.

People in Federal Prison Can Initiate a Motion for Compassionate Release

As a result of the First Step Act, a person in prison can file a motion for compassionate release, provided the person adheres to proper procedures. That change in the law made an enormous difference, providing a mechanism people in prison could use to plead their case for compassionate release through a federal judge. Prior to the passage of the FSA, even if a judge wanted to grant compassionate release, the mechanism for him to grant relief from an unjust sentence did not exist. Now, assuming a person adheres to proper procedures, a judge has jurisdiction to reconsider whether continued incarceration makes sense.

To qualify for compassionate release, a person should adhere to the disciplined strategy our team teaches through all of our coursework and consulting:

  • Step 1: A person should document a strategy that will advance his or her candidacy for compassionate release.
  • Step 2: A person should put priorities in place, so that he or she pursues the plan in accordance with the strategy.
  • Step 3: A person should create tools, tactics, and resources that will help the person build a powerful case showing why the person is worthy of compassionate release.
  • Step 4: A person should create an accountability metric to show why the person makes a compelling, and extraordinary case for consideration.
  • Step 5: A person should execute the plan every single day, consistently documenting a strategy that advance the person’s candidacy for the highest level of liberty, at the soonest possible time.

Once a person has built an appropriate record of accomplishments, in accordance with the five steps we articulate above, the person can initiate the process for compassionate release. To start, the person must file a request for administrative remedy with the warden at the federal prison.

If the warden does not respond favorably to the request that a person made through administrative remedy, or if 30 days passes without the warden responding at all to the request for administrative remedy, the person can prepare a motion to file in federal court.

The standard that judges consider with regard to requests for compassionate release include:

  1. Extraordinary and compelling reasons warrant a reduction; or
  2. The person has reached at least 70 years of age and served at least 30 years in prison for the current offense; and
  3. The BOP director determines that the person doesn’t threaten safety of any person in the community.

The BOP must also indicate that any reduction remains consistent with all policy statements issued by the US Sentencing Commission.

Obviously, a person that wants to pursue a strategy for compassionate release should lay out a thorough plan. In Earning Freedom, we reveal the plan that I laid out at the start of my lengthy sentence. Participants may learn from that strategy. The law for compassionate release did not exist during the 26 years that I served, between 1987 and 2013. If a person were to pursue a similar strategy now, that person would have a record that would advance possibilities for a positive outcome—or at least more favorable consideration.

Prison Reform and the First Step Act

Congress designed the FSA’s prison reform elements to improve conditions in federal prisons in three significant ways:

  1. Encouraging placing people in prisons that are closer to their families;
    1. Reorienting prisons around rehabilitation rather than punishment; and
    1. Eliminating inhumane practices, including using restraints on pregnant women.

Desptie being desperately needed, these reforms may prove challenging to achieve. Successfully expanding rehabilitative programming in federal prisons will require significant follow-through from the  Department of Justice and Congress.

Our team at Prison Professors creates digital content that we distribute to jails and prisons across America. More than 100,000 people in jails and prisons have access to the content we produce at Prison Professors, and we’re consistently working to develop more relationships that will help us expand our reach. Those who want to learn more more should contact our team, as participating in this program could serve as an excellent mitigation strategy—provided the person coordinates it well.

Risk and Needs Assessment Program

Before Congress enacted the FSA, the BOP awarded people 47 days of good-time credit per year. As a result of the FSA, people in federal prison earn credit for 54 days each year, provided the person does not violate any disciplinary infractions.

In addition to “good-time” credit, people now quality for “earned-time” credit, as follows:

  • All qualifying people will earn ten days of time credit for every 30-days of successful program participation;
  • If a BOP risk-assessment took qualifies a person as “minimum” or “low risk” for recidivism and the person participates in approved programming, every 30 days the person will receive an additional five days of earned-time credit.

The earned-time credits will work toward advancing a person’s candidacy for placement on home confinement, and advance a person’s eligibility for higher levels of liberty, earlier than otherwise available.

Incentives for Participation in Recidivism Reduction Programs

The FSA also offers additional incentives to people for their participation in recidivism reduction programs RRP.). However, not all BOP facilities offer the RRPs. The incentives include:

  • Phone privileges, or, if available, video conferencing;
  • Additional visitation time, as permitted by the warden;
  • Increased commissary spending limits and product offerings;
  • Expanded access to email; and
  • Consideration of transfer to preferred housing units (including transfer to different prison facilities).

These new incentives are available only at the discretion of the BOP. Based on the language in the FSA, the additional phone/video conferencing time appears non-discretionary. The FSA provision states,:

  • A prisoner who is successfully participating in an evidence-based recidivism reduction program shall receive additional phone/video conferencing minutes.

First Step Act Conclusion:

People who face a sentencing in federal court should learn everything possible about prison-reform legislation, including the First Step Act. They should anticipate how stakeholders will assess them at each stage of the journey, and craft a mitigation strategy. The more effective a person’s mitigation strategy, the more persuasive a person will be at influencing better outcomes, including:

  • A lower sentence,
  • A better prison experience,
  • A more persuasive case for compassionate release,
  • A stronger case for earlier transition to home confinement,
  • A more powerful argument for higher levels of liberty, at an earlier time frame,
  • Restoration of a person’s reputation after an accusation or conviction of a criminal charge.