by Dale Chappell and Douglas Ankney

As of late July 2019, the federal Bureau of Prisons (BOP) had released over 3,000 prisoners under the First Step Act, a landmark criminal justice reform measure signed in December 2018 by President Trump. [See: PLN, April 2019, p.1; Jan. 2019, p.34]. The law also resulted in the reduction of 1,691 federal prison sentences, according to the U.S. Sentencing Commission (USSC).

The largest group of those released were drug offenders like Norah Yahya. The 40-year-old spent 18 years in prison after her first conviction at age 22 for dealing marijuana. Along the way she earned a college degree and even held a job before her second imprisonment for selling crack cocaine.

“I just fell right back into the same stream of choices. I wanted to be released, but I had no preparations upon release,” said Yahya, adding that now, “I want to live.”

The reduced sentences were for federal prisoners left out of the 2010 Fair Sentencing Act (FSA). The FSA was not applied retroactively, but the First Step Act explicitly extended its provisions to pre-2010 sentences. The USSC said 25 percent of those sentence reductions were granted to prisoners whose cases originated in three states: Florida, South Carolina and Virginia. Over 91 percent were African Americans, and most were male. One of the goals of the FSA was to correct racial disparities in sentencing by eliminating harsher penalties for crack cocaine than for powder cocaine. The mean sentence reduction was about 30 percent, taking off nearly six years.

The First Step Act – officially the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act – also removed mandatory life sentences for “three-strikes” drug offenders, replacing them with 25-year sentences, and expanded judges’ ability to use a “safety valve” provision when sentencing nonviolent drug offenders.

The U.S. Department of Justice said it would allocate $75 million to fund the First Step Act this year, adding a new “risk and needs assessment system designed to assess inmates’ risks of recidivism and to identify their individualized needs to reduce their risks of re-offending.”

That is of particular importance to most federal prisoners, since the First Step Act also mandates an increase in sentence-reducing good conduct credits from 47 days per year to 54 days. The BOP estimated another 3,000 prisoners could be eligible for early release in addition to the 3,100 who have already been freed.

Over 800 of those already released were transferred to the custody of Immigration and Customs Enforcement (ICE) for deportation proceedings. The remaining 2,243 prisoners – all of whom would have been eventually freed – were 80% male and 55% white. They may now have improved employment prospects, since the First Step Act reauthorizes the ten-year-old Second Chance Act with $100 million in funding.

“Starting today at prisons around the country, nearly 3,100 inmates are being released from BOP custody due to the increase in good-conduct time applied to reduce their sentences under the First Step Act,” said Deputy U.S. Attorney General Jeffrey Rosen.

However, that milestone was misrepresented in a statement released by Fox News in July 2019, which focused on the fact that some of the released prisoners had committed violent crimes. Ignoring how the law had passed with overwhelming bipartisan support, Fox News commenter Tucker Carlson called it a “broken promise” by U.S. Senator Cory J. Booker, who had co-sponsored the First Step Act.

The BOP reported to the judiciary committees of both houses of Congress that as of June 2019 it had placed 75 prisoners in the Second Chance Act Home Confinement program, while another 37 prisoners received “compassionate release” sentence reductions. The BOP also noted that it had updated its policies on compassionate release, “to include directives reflecting the expedited processing of compassionate release requests made on the basis of terminal diagnosis,” though terminal illness is just one of several criteria for compassionate release. Prison officials promised to “ensure that appropriate motions are filed” for prisoners with “extraordinary and compelling” reasons to warrant compassionate release.

Another provision of the First Step Act calls for placing prisoners in facilities no more than 500 miles from their home. The BOP said it has always been a longstanding policy to house prisoners close to home, but that some prisoners prefer placement farther away to “escape” potentially violent situations in closer facilities. Still, the BOP reported that prisoners have been requesting closer-to-home transfers, which are being granted.

As a final note, the BOP addressed the use of medication-assisted treatment (MAT) to treat prisoners with substance abuse problems. As of June 6, 2019, 173 prisoners of those selected for screening had expressed an interest in MAT. The program is scheduled to be fully available by 2020.

The federal prison population has grown more than 700 percent since 1980 due to tough-on-crime measures like the Sentencing Reform Act of 1984 – which tightened sentencing guidelines, abolished parole, imposed truth in sentencing at 85 percent and created a separate term of supervised release – and the Anti-Drug Abuse Act of 1986, which established mandatory minimum sentences for drug offenses based on drug type and quantity rather than the individual’s role in the crime.

As noted above, the First Step Act retroactively applies the FSA to reduce mandatory minimum penalties for crack-related offenses that occurred before 2010. The Charles Colson Task Force on Federal Corrections (CTFFC), created by Congress in 2014, recommends that other portions of the First Step Act be applied retroactively, too.

The non-profit Urban Institute advocates implementing all of the reforms suggested by the CTFFC, saying areas for future reform include expanding prisoners’ eligibility for earned time credits and eliminating all mandatory minimums except those that apply to drug kingpins.

Additionally, the CTFFC has called for the creation of a visitation and family affairs office within the BOP, and the establishment of a “second look” process to allow prisoners to apply for resentencing after serving 15 years. The Urban Institute contends that the overall goal of such reforms is to “reserve prison for those convicted of the most serious crimes.” 

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Sources: foxnews.com; cbsnews.com; fedcure.org; thecrimereport.org; “Next Steps in Federal Corrections Reform,” Urban Institute (May 2019)

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