Historic First Step Act Brings Significant Federal Criminal Justice System Reform

On December 21, 2018, a new law called the FIRST STEP Act brought dramatic reform to federal prisons and the federal criminal justice system.  The statute — characterized by the New York Times as embodying “the most significant changes to the criminal justice system in a generation” — made history in several ways.

What Is the First Step Act?

FIRST STEP is the acronym for a new federal statute titled Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act.  For the broad alliance whose efforts led to enactment of the law, “First Step” is more than just the acronym for the statute.  The law is widely viewed as signaling that the time is right for even greater improvements in the criminal justice system at both the federal and individual state levels — so it is a “first step” in the right direction.

Efforts spanning more than a decade achieved success when the law passed Congress and secured the President’s approval and signature.  The law is historic in the magnitude of the reforms it contains.  It is also historic in the extent to which significantly diverse political voices and organizations united in securing passage.

The bill passed the Senate on a bipartisan 87-12 vote.  The House of Representatives approved the Senate’s revisions in a bipartisan 358-36 vote.  Senators and Congressmen from both sides of the aisle fought for passage of the statute.

Much credit for the successful effort goes to the diverse interests that fought together long and hard for the reforms.  The American Civil Liberties Union, the Koch network, well-known individuals, and organizations of former prisoners and family members of prisoners joined in the effort as well.  Even the President’s son-in-law Jared Kushner (whose own father spent time in prison) played a crucial role in the end.  Sources credit Kushner with heavily influencing the President’s decision to support and sign the legislation.

Prison reform advocates laud the changes but say additional significant reform is direly necessary.  They view the First Step Act as a beginning, rather than an end.  However, they also recognize the truly historic nature of the effort that secured passage of the new law.

Key Provisions of the First Step Act

The underlying goals of the reform package include providing more humane and fair treatment for prisoners, creating opportunities for training and work for inmates, focusing on rehabilitation rather than on punishment and prison time, and moderating unnecessarily harsh sentencing rules.  The Congressional Budget Office estimates that as much as thirty (30) percent of federal prisoners will benefit from the Act over the next ten (10) years.

The statute is extremely long, with numerous complex provisions.  Following is a summary of the most significant changes implemented in the law.

Risk and Needs Assessment System

The First Step Act creates a new Risk and Needs Assessment system that requires the Federal Bureau of Prisons (BOP) to match individuals in prison with programs and classes that are the most supportive of their growth, rehabilitation, and transformation. 

The system includes incentives for inmates in the form of Earned Time Credit for participating in a program.  The credits become available to use in exchanging prison time for more time in home confinement, supervised release, or a halfway house.

The goals of the new system include easing reentry into the community by sending people home ready to work and lead their families.

Housing Prisoners Closer to Home

Previously, the BOP had full discretion to determine where an inmate served a sentence.  The new law requires the BOP to place an inmate in a prison as close as practicable to the inmate’s primary residence.  To the extent possible, the prison should be within 500 driving miles of the residence.

Now, individuals serving prison time will be located closer to their families and friends to facilitate visitation.  Current prisoners will have the opportunity to decide whether they want to transfer to a facility closer to home, even if their current facility is within 500 miles of their home.  The law provides exceptions for some situations in which the BOP may place a prisoner farther away, but this provision will result in many incarcerated individuals being able to spend more time visiting with their families.

Home Confinement for Low-Risk Inmates

The new law directs the BOP to place low-risk prisoners on home confinement near the end of their sentence for the maximum amount of time permitted by law to the extent practicable.  The provision makes it clear that low-risk inmates should spend as much time as possible on home confinement. 

Sentencing Reforms

Several different changes in sentencing rules allow judges to avoid overly harsh sentences, primarily for drug charges.  The law relaxes some mandatory minimum sentence rules and gives judges greater discretion when sentencing persons convicted of non-violent drug crimes and Third Strike drug offenders.

The statute also gives judges greater latitude to use the “safety valve” that is available to avoid giving mandatory minimums in some cases.  In addition, the law clarifies that the “stacking” rule that makes it a federal crime to possess a gun while committing another crime applies only to individuals previously convicted.

Another significant provision in the statute corrects an unjust disparity in mandatory sentencing rules for crack and powder cocaine offenses.  This change addresses an ongoing complaint that affects thousands of federal prisoners.

Good Time Credit Changes

The Act adjusted the amount of “good time credit” inmates get, allowing them to earn up to 54 credits a year.  The credits can reduce a sentence by months, depending on time served.  This provision adjusted incorrect calculations made under a previous law.

The change applies retroactively to everyone in prison who has earned credit for good behavior.  There may be men and women immediately eligible to leave prison because of the recalculation.

Improvements to the Compassionate Release Program

Changes to the compassionate release process make it easier for elder and terminally ill inmates to go home.  A major change allows inmates to petition the courts for compassionate release.  Previously, only the BOP could file the motion.

Changes Affecting Women Prisoners and Juveniles

The new law bans the horrific practice of shackling of pregnant women in labor and post-partum.  It also provides women in prison with adequate feminine hygiene products free of charge, addressing an issue documented in many prisons.

Another provision prohibits the BOP from holding most juveniles in solitary confinement.

Auditing and Reporting Requirements for the Bureau of Prisons

To ensure proper implementation of the new law, Congress included “sunshine” mechanisms giving it oversight authority over the Bureau of Prisons and Office of the Attorney General regarding provisions of the statute.

Is Criminal Justice Reform in the State of Nevada Coming Soon?

The First Step Act only applies to federal prisons and prisoners.  Individual states must enact their own laws to make reforms at the state level.

A small group of states — including Texas, Georgia, Mississippi, South Carolina, and Kentucky — already implemented similar reforms in state prisons and experienced a significant reduction in crime.  The State of Nevada may soon follow suit.

In August 2018, Nevada Governor Brian Sandoval, Supreme Court Justice Michael Douglas, and Assembly Speaker Jason Frierson asked the nationally-known Crime and Justice Institute (which helped a number of other states develop reforms) to conduct a review of Nevada’s criminal justice system.  The request asked the Institute to develop policy recommendations for consideration by the Nevada Legislature in 2019.

Talk With an Experienced Las Vegas Criminal Defense Attorney

Attorney Joseph Gersten has extensive experience as a criminal defense attorney in both federal and state courts. He defends Las Vegas visitors and residents against federal and state criminal charges and assists inmates with post-conviction issues. If you’ve been arrested in Las Vegas or anywhere else in Clark County or require assistance after conviction, contact Attorney Gersten to schedule a free consultation.