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America incarcerates people at a higher rate than any country in the world. The highly politicized War on Drugs led to a spike in incarceration, particularly in lower-income and minority communities. Although the prison population in the United States has declined since 2016, incarceration and recidivism rates remain high. According to a study by the United States Sentencing Commission, more than half of a group of 25,000 recently released individuals were rearrested for new crimes or violations of supervision conditions. Although recidivism rates vary depending on factors such as sentence length and an individual’s previous exposure the criminal justice system, the overall rate of recidivism looks bleak. In 2018, Congress enacted the First Step Act to target high mandatory minimum sentences and recidivism rates in the federal carceral system.

 

A First Step Forward

The First Step Act reforms mandatory minimum sentencing laws, introduces earned time credit and improves good time credit systems, and remedies compassionate release programs in federal prisons. Mandatory minimum sentencing laws restrict judicial discretion in sentencing and force judges to impose certain penalties for certain crimes, typically focusing on drug-related offenses. The Anti-Drug Abuse Act of 1986 is the major source of mandatory minimum sentencing drug laws. Congress enacted the law in response to a supposed nationwide increase in drug activity; however, Congressmen used arbitrary numbers to determine the amount of drugs necessary to impose arbitrarily decided penalties. Mandatory minimum sentencing caused prison populations to skyrocket, creating the carceral crisis that the First Step Act attempts to address.

The First Step Act primarily seeks to remedy the damage of mandatory minimum sentencing by retroactively applying the 2010 Fair Sentencing Act. The Fair Sentencing Act increased the weight of crack cocaine needed to impose mandatory minimum sentences and eliminated the five-year minimum sentence for simple possession of crack cocaine. Its retroactive application allows prisoners sentenced for crack cocaine offenses before 2010 to file a motion for resentencing in court. Though courts are under no obligation to reduce a prisoner’s sentence, they have applied such reform for many former inmates. The First Step Act implements additional sentencing reform including reducing the mandatory life sentence for a third drug offense to a 25-year mandatory minimum and ensuring that defendants cannot receive a 25-year sentence for a subsequent or second drug offense. These  additional reforms, however, are not retroactive.

The First Step Act also aims to reduce the prison population through credit-based programs in which inmates reduce their sentences by completing rehabilitative programs while incarcerated. The Act introduced earned time credits which allow prisoners to earn up to fifteen days of credit for every thirty days of rehabilitative programming, such as job training or education initiatives, or productive activity, such as helping to deliver programming to other prisoners, that the prisoners complete. Though earned time credits do not reduce a prisoner’s sentence, they allow prisoners to transfer to a halfway house or supervised release. Earned credits do not apply to all incarcerated individuals, as the Act limits these credits to certain crimes and bars non-citizens from participation. All incarcerated individuals, however, are eligible for good time credits. Good time credits result in real time deduction from sentences. Prisoners gain them by continually exhibiting good behavior while incarcerated. The First Step Act changed good time calculation by increasing the number of days prisoners can receive off their sentence.  Good time credits apply retroactively.

The Act also improves the compassionate release program for prisoners who are elderly or sick. Prior to the First Step Act, the federal Bureau of Prisons (BOP) had limited mechanisms for obtaining release and often prevented courts from considering compassionate release for prisoners who met the criteria. The First Step Act expands the criteria for compassionate release, ensures that prisoners have the right to motion for compassionate release if they show they tried and failed to convince the BOP to allow their release, and increases support for prisoners who are unable to submit a request for compassionate release on their own.

The three major components of the First Step Act are beneficial in reducing the carceral population by reducing mandatory minimum sentences, improving prison conditions and providing and incentivizing use of rehabilitation programs among inmates, and enabling more ailing and elderly prisoners to receive compassionate release. According to a July 2019 announcement from the Department of Justice, 3,100 inmates were released under the First Step Act.

 

One Step Forward, Two Steps Back

Despite these strides forward, inmates seeking to benefit from the First Step Act have faced fairly significant setbacks since its enactment. The language of the legislation posed the primary setback. Congress located the good time provision within the earned time provision of the law, making its implementation dependent upon the Department of Justice’s public release of the risk assessment tool. The BOP uses the risk assessment tool to determine where to place prisoners based on the security levels of prisons. The First Step Act requires more frequent risk assessment of inmates than older policies but allows the Department of Justice to create the tool. The Act requires that this be done no later than seven months after the Act was signed. Debate among reformers and governmental officials began shortly after the law was passed. According to the Act’s legislative history, some argue, the good time provision was meant to take effect immediately and should not depend on the Department of Justice’s risk assessment decision. In contrast, those who read the law on its face argued that the good time provision should be on hold until the Department of Justice approved the risk assessment tool. A federal judge ruled that the statutory language of the First Step Act must be followed and the good time provision would remain on hold until the Department of Justice took further action. Although some reformers argue that the BOP could use its agency power according to the Chevron Deference doctrine to interpret the language of the Act according to its legislative history, the BOP interpreted the language on its face. A reversal of interpretation in such situations is rare. Despite the tumult regarding the implementation of the good time provision, in July of 2019 the Department of Justice published its risk and needs assessment system, firmly effecting the good time provision.

Trouble with the First Step Act has manifested in another way. Prosecutors are targeting people freed from prison under the Act, claiming that the formerly incarcerated person handled a greater amount of drugs than they were originally sentenced for. Because prosecutors claim that the actual amount of drugs was higher than the amount covered by the mandatory minimum sentencing reforms, the prosecutors can bring former inmates back to court.   As of July 30, 2019, federal prosecutors have fought over eighty petitions for reduced sentences. In this new sweeping counterstrike against recently released inmates, prosecutors seem to follow the instructions of the Department of Justice. For example, a prosecutor in Virginia cited Department of Justice guidelines in objecting to nine sentence reductions she had not previously opposed. The federal government has lost the majority of cases it has brought. However, threats of further prosecution after release create an atmosphere of fear and doubt surrounding the First Step Act’s effectiveness and overall government support. In fact, President Trump recently made several disparaging remarks about the Act. With the lack of presidential support and a Department of Justice set against sentencing reforms, the First Step Act faces challenges from several sides.

 

Reform Proposals: The Next Step

Although the First Step Act has created some forward momentum, it is just that: a first step. Activists and former inmates alike call for continual reform. One of the first beneficiaries of the Act, Matthew Charles, wrote an opinion piece for the Washington Post, stating his desire for future reform including allowing offenders a second chance review after serving a certain amount of time.

The Trump administration has recently began focusing on its new “Second Step Act,” aimed at increasing employment opportunities for formerly incarcerated people. However, before this initiative fully takes off, lawmakers and legal advocates caution the administration to ensure the First Step Act is firmly established.

Clemency reform is another step to consider in overall carceral reform. Several democratic presidential candidates, including Amy Klobuchar and Cory Booker, advocate for clemency reform. Such action could change the clemency system by removing decision-making power from the Department of Justice and prosecutors and placing it in the hands of the president. This more expansive reform is one of several efforts for which criminal justice advocates have begun to push. The First Step Act has made some important strides in criminal justice reform; however, there are many available avenues to build upon its progress.

 

Christina Lee is a second-year at Cornell Law School. Born in raised in Upstate New York, Christina attended Cornell University as an undergraduate and is enjoying her sixth year in Ithaca. This summer, Christina worked at the Virginia Capital Representation Resource Center assisting inmates on death row with their federal appeals. She is a passionate advocate from prisoners’ and women’s rights.

 

 

Suggested Citation: Christina Lee, Stepping Up: The First Step Act and Criminal Justice Reform, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (Oct. 7, 2019), http://jlpp.org/blogzine/stepping-up-the-first-step-act-and-criminal-justice-reform/.