An Outline of the First Step Act


On December 21st, President Trump signed the First Step Act (“the Act”) into law. This bipartisan legislation includes major changes to prisoner rehabilitation programming, as well as sentencing reform for certain repeat offenders. The First Step Act also includes provisions governing the Bureau of Prisons employee training and a variety of specific protections for federal inmates. This purpose of this blog is to provide a general overview of the Act, as well as brief summaries of specific sections that may affect current defendants, incarcerated individuals, and their families.


It is important to note that the First Step Act only governs federal prisons, which constitute just a small portion of incarcerated persons in the United States. As such, the Act does not apply to those incarcerated in state prison systems. If effective, however, the Act may serve as a blueprint for state prison systems looking to reduce overcrowding, lower rates of recidivism, and ultimately cut costs for taxpayers.

The First Step Act is a step forward for criminal defendants and incarcerated persons. It places a heavy emphasis on holistic rehabilitation of incarcerated persons through tailored programming that hopefully will prepare them to transition successfully back into society. The Act makes it vital that federal criminal defendants know the implications of potential plea agreements and the potential resulting forfeiture of time credits under this new risk and needs assessment system.

The government estimates that the Act will take about three years to implement fully. There are, however, immediate implications for some prisoners and for defendants currently working their way through the federal court system. Below we have broken down a few key sections of the legislation that may apply to you or someone you know.


Risk and Needs Assessment System

The cornerstone of this new legislation is its mandate that the Attorney General develop and publish a new “risk and needs assessment system” for all federal prisoners. Under this system, all current and incoming federal inmates will be designated as having a minimum, low, medium, or high risk for recidivism (i.e. the tendency of a convicted criminal to commit another crime). Based on their risk level and the nature of their previous offenses, inmates will be assigned “evidence-based recidivism reduction programs” and productive activities. These programs and activities range from vocational training and academic classes to substance abuse treatment and trauma counseling. Prisoners’ progress will be tracked at least once per year throughout their incarceration, and their specific programming will be altered as necessary to lower their risk of recidivism and prepare them for a successful transition back into society.

Prisoners who actively participate in their assigned evidence-based recidivism reduction programs have an opportunity to earn substantial time credits for early placement in prelease custody or supervised release. Prisoners designated as having a medium or high risk for recidivism can earn 10 days of time credits for every 30 days of successful participation in their prescribed programming, while prisoners at a minimum or low risk of recidivating can earn an additional 5 days of time credits (15 total) for every 30 days of successful participation. Prisons will offer other incentives for program participation such as increased phone and visitation privileges, increased commissary spending limits, or transfers to preferred housing units. All in all, these incentives encourage personal and professional growth that lawmakers hope will reduce recidivism and better assist an inmate’s transition back into society.

It is important to note that certain prisoners are ineligible for participation in this program and will not be able to earn the time credits described above. The Act names roughly 70 offenses for which these time credits are expressly disallowed. The most common of these ineligible offenses include murder, terrorism, sexual exploitation of children, child pornography, domestic assault by a habitual offender, fraud and related activity in connection with computers, and certain drug trafficking offenses. Federal defendants need to be aware of these ineligible offenses when negotiating plea agreements with prosecutors—the classification of their offense can have massive implications for the overall length of their incarceration when these time credits are at risk.

Correction to Good-Time Credits Under 18 U.S.C. § 3624(b)

The First Step Act restates Congress’ intent to give prisoners fifty-four (54) days of good-time credit for each year they are incarcerated, rather than the forty-seven (47) days previously given under Bureau of Prisons policy. This correction will apply retroactively and may render some federal inmates eligible for immediate release.


Reduction of Mandatory Minimums for Certain Drug Offenses

The First Step Act reduces mandatory minimums by five years for drug convictions under 21 U.S.C. §§ 841 and 960 involving defendants with qualifying prior convictions. The Act also limits qualifying prior convictions to “serious drug felonies” occurring within 15 years and expands qualifying prior convictions to include “serious violent felonies.”

The Act also reduces the “three-strike” mandatory penalty under 18 U.S.C. § 841 from life imprisonment to 25 years.

These sentence reductions apply to cases currently pending, as long as a sentence for the offense had not been imposed at the date of the Act’s enactment.

Broadening of the “Safety Valve” Exemption to Mandatory Minimums
Under previous law, certain federal criminal defendants were exempt from mandatory minimums if they had no criminal history. This “safety valve,” codified at 18 U.S.C. § 3553(f), is now broadened to cover defendants with a limited criminal history. Defendants can now be considered under the safety valve with up to four criminal history points under the federal sentencing guidelines (with limited exceptions).

Clarification of Mandatory Minimums for Subsequent Firearm Violations under 18 U.S.C. § 924(c)(1)(C)

Heightened mandatory minimum sentences that previously applied to “second or subsequent convictions” under 18 U.S.C. § 924(c)(1)(C) are limited to offenders who have previously been convicted of such an offense. This provision does not apply retroactively.

Allowance for Petitions Under the Fair Sentencing Act of 2010 for Retroactive Reductions to Crack Cocaine Sentences
The Fair Sentencing Act of 2010 reduced sentencing disparities between convictions involving crack and powder cocaine. The First Step Act authorizes retroactive application of the Fair Sentencing Act of 2010, so that prisoners who were convicted prior to its August 3, 2010, enactment may petition sentencing courts for a reduction in their sentence in accordance with current law.


Placement of Prisoners Close to Families

The Act instructs the Bureau of Prisons to, when possible, place prisoners in a facility “as close as practicable to the prisoner’s primary residence”—ideally within 500 miles. Current inmates may request that they not be transferred if they would prefer to remain in their current facility.

Home Confinement for Low-Risk Prisoners

The Act provides that the Bureau of Prisons should “to the extent practicable” place low-risk prisoners on home confinement for the maximum amount of time permitted by law.

Identification for Returning Citizens

The Act alters 34 U.S.C. § 60541(b)(1) to require the Director of the Bureau of Prisons to assist prisoners in obtaining multiple forms of identification prior to their release. This identification includes a social security card, driver’s license or other official photo identification, and a birth certificate.

Evidence-Based Treatment for Opioid and Heroin Abuse

Congress gives the Bureau of Prisons 90 days to submit a report assessing the availability of and the capacity of the Bureau to treat heroin and opioid abuse through evidence-based programs. The report “shall include a description of plans to expand access to evidence-based treatment for heroin and opioid abuse for prisoners[.]” The results of this study will hopefully be used to provide alternatives to lengthy incarceration for persons addicted to these drugs.

Healthcare Products for Women

The Act requires that the Bureau of Prisons to provide prisoners with healthcare products (tampons and sanitary napkins) in a quantity that is appropriate to the healthcare needs of each prisoner.

Juvenile Solitary Confinement

The Act prohibits the use of juvenile solitary confinement “for discipline, punishment, retaliation, or any reason other than as a temporary response to a covered juvenile’s behavior that poses a serious and immediate risk of physical harm to any individual, including the covered juvenile.”

Dedicated Criminal Defense Attorneys

At Berry Law, our attorneys have extensive experience in defending individuals indicted in federal court. We have significant trial and appellate experience and are highly capable of helping individuals navigate the complex world of federal sentencing. Call us today if you are facing federal indictment or believe the First Step Act may help reduce your sentence.

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