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What is the First Step Act and How Does it Apply to My Case?

Posted by Ann Fitz | Feb 12, 2019 | 0 Comments

The FIRST STEP Act (“Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act”) was signed into law by President Trump on December 21, 2018.  As with any new legislation, there are many questions federal criminal defendants have about First Step and how it may apply to their case.  The goal of this blog post is to provide a basic overview of the purpose of the law, and what it does and does not do for federal inmates.

According to the Senate Committee on the Judiciary, the purpose of the legislation is to reduce federal recidivism and crime, prepare inmates for successful return to society, enhance prison security and officer safety, and reform federal criminal sentencing.

What the First Step Act does:

  • Reduces lengthy mandatory minimums for repeat drug offenders, reducing mandatory life without parole for a third felony drug offense to 25 years and reducing the 20-year mandatory minimum for a second felony drug offense to 15 years under 21 U.S.C. § 841 (prospective only);
  • Expands the drug safety valve to grant judges greater discretion at sentencing. The First Step Act would expand the safety valve to apply to defendants with up to 4 criminal history points, as long as they do not have a 3-point offense or a 2-point violent offense as determined by the United States Sentencing Guidelines (prospective only);
  • Fix 18 U.S.C. § 924(c) “stacking” practice so that first-time offenders cannot receive the 25-year mandatory minimum sentence intended for repeat offenders (prospective only);
  • Apply the Fair Sentencing Act of 2010 retroactively so that the nearly 3,000 federal prisoners serving since-reformed mandatory minimum crack sentences may motion the court for resentencing;
  • Adjusts good time credit calculation so that prisoners receive 54 days of good time credit per year, not 47 days, for following prison rules (this provision was made retroactive);
  • Requires BOP to put lower-risk, lower-needs people in home confinement for the full amount of time permitted under current law (10 percent of the person's sentence or 6 months, whichever is less);
  • Requires the BOP to place prisoners within 500 driving miles, not air miles, of home, if security classification, programming and medical needs, and bed space allow it;
  • Reforms the BOP's compassionate release process for prisoners facing “extraordinary and compelling” circumstances
  • Requires BOP to help people get government identification cards and birth certificates before they leave prison;
  • Reauthorizes an elderly prisoner early release pilot program from the Second Chance Act of 2007, allowing elderly and elderly terminally ill prisoners in certain federal prisons to be released from prison early if they are at least 60 years old, have served 2/3 of their sentences, and meet all of the other requirements;
  • Bans shackling of pregnant women in federal prisons and jails;
  • Expands Federal Prison Industries
  • Greatly limits the use of solitary confinement for juvenile offenders

What the First Step Act does not do:

  • Does not repeal mandatory minimum sentences, and reforms are not retroactive. The bill's sentencing reforms are very modest and include no repeals of mandatory sentences.  With the exception of retroactivity of the Fair Sentencing Act, none of the First Step Act's changes to mandatory minimums are applied retroactively to people already in federal prison.
  • The bill excludes many people from earning and using time credits.  People who committed the following offenses cannot earn time credits under the First Step Act:
    • Trafficking or importing in heroin if the offender was an organizer, leader, manager, or supervisor of others in the offense (21 U.S.C. § 841 (b)(1)) or (21 U.S.C. § 960(b))
    • Trafficking or importing in fentanyl (21 U.S.C. § 841 (b)(1)) or (21 U.S.C. § 960(b))
    • Trafficking or importing in a mixture or substance containing a detectable amount of fentanyl if the offender was an organizer, leader, manager, or supervisor of others in the offense (21 U.S.C. § 841 (b)(1)) or (21 U.S.C. § 960 (b))
    • Trafficking or importing in a mixture containing a detectable amount of methamphetamine if the offender was an organizer, leader, manager, or supervisor of others in the offense (21 U.S.C. § 841 (b)(1)) or (21 U.S.C. § 960 (b))
    • Unlawful possession or use of a firearm during and in relation to any crime of violence or drug trafficking crime (18 U.S.C. 924(c))
    • Manufacturing or distributing drugs, with death or serious bodily injury resulting from the use of those drugs (21 U.S.C. § 841(b)(1)(A), (B), or (C))
    • Arson (18 U.S.C. § 81)
    • Assault, resist, or impediment of a police officer with a deadly weapon or resulting in bodily injury (18 U.S.C. § 111(b))
    • Assault with intent to murder or murder of a spouse, intimate partner, or dating partner by strangling or suffocating (18 U.S.C. § 113(a))
    • Receipt or distribution of child pornography (18 U.S.C. § 2252(a)(1), (2), or (3))
    • Possession, distribution, or sale of child pornography (18 U.S.C. § 2252A(a)
    • Assault with intent to commit murder (18 U.S.C. § 113(a)(1))
    • Influencing, impeding, retaliating against a federal officer by injuring a family member, except for a threat (18 U.S.C. § 115)
    • Female genital mutilation (18 U.S.C. § 116)
    • Domestic assault by a habitual offender (18 U.S.C. § 117)
    • Biological weapons (18 U.S.C., chapter 10)
    • Chemical weapons (18 U.S.C., chapter 11B)
    • Assassination, kidnaping, or assault of a congressional, cabinet, or Supreme Court member (18 U.S.C. § 351)
    • Felony committed while in a criminal street gang (18 U.S.C. § 521)
    • Escape or attempt to escape from prison (18 U.S.C. § 751)
    • Gathering, transmitting, losing defense information (18 U.S.C. § 793)
    • Gathering or delivering defense information to aid a foreign government (18 U.S.C. § 794)
    • Explosives or dangerous articles (chapter 39, U.S. Code, except for § 836 offenses involving transportation of fireworks into a state that prohibits their sale or use)
    • Distribution of information relating to weapons of mass destruction (18 U.S.C. § 842(p))
    • Use of fire or explosive (18 U.S.C. § 844(f)(3), (h), or (i))
    • Computer fraud (18 U.S.C. § 1030(a)(1))
    • Murder under 18 U.S.C., chapter 51, except for manslaughter (18 U.S.C. § 1112), attempt to commit manslaughter (18 U.S.C. § 1113), misconduct or neglect of ship officers (18 U.S.C. § 1115), protection against HIV (18 U.S.C. § 1122)
    • Kidnaping (18 U.S.C., chapter 55)
    • Human trafficking and slavery (18 U.S.C., chapter 77), except for sections 1593 through 1596
    • Assault, kidnaping, or assassination of president or presidential staff (18 U.S.C. § 1751)
    • Providing or possessing contraband in prison (18 U.S.C. § 1791)
    • Rioting or mutiny in federal prison (18 U.S.C. § 1792)
    • Intentionally killing or attempting to kill an unborn child (18 U.S.C. § 1841(a)(2)(C))
    • Terrorist attacks against railways or mass transportation systems (18 U.S.C. § 1992)
    • Bank robbery resulting in death (18 U.S.C. § 2113(e))
    • Robberies or burglaries involving controlled substances resulting in assault or use of dangerous weapon (18 U.S.C. § 2118(c))
    • Robberies or burglaries involving drugs, which result in death (18 U.S.C. § 2118(c)(2))
    • Carjacking (18 U.S.C. § 2119)
    • Sabotage (18 U.S.C., chapter 105, except for § 2152)
    • Sexual abuse (18 U.S.C., chapter 109A, except for those convicted under any provision of § 2244 other than subsection (c))
    • Failure to register as a sex offender (18 U.S.C. § 2250)
    • Sexual exploitation of children (18 U.S.C. § 2251)
    • Selling or buying children (18 U.S.C. § 2251A)
    • Producing child pornography for importation (18 U.S.C. § 2260)
    • Transportation of explosive, biological, radioactive, chemical, or nuclear materials (18 U.S.C. § 2283
    • Transportation of terrorists (18 U.S.C. § 2284)
    • Destroying a vessel or port, if it involved substantial risk of death or serious bodily injury (18 U.S.C. § 2291
    • Terrorism (18 U.S.C. chapter 113B)
    • Torture (18 U.S.C. § 2340A)
    • Treason (18 U.S.C. § 2381)
    • Recruiting or using child soldiers (18 U.S.C. § 2442)
    • Developing or producing nuclear material (42 U.S.C. § 2077(b))
    • Atomic weapons offenses (42 U.S.C. § 2122)
    • Atomic energy license violations (42 U.S.C. § 2131)
    • Communication or receipt of restricted atomic data (42 U.S.C. § 2274, 2275)
    • Sabotage of nuclear facilities or fuel (42 U.S.C. § 2284)
    • Damaging or destroying a pipeline facility, if the conduct involved a substantial risk of death or serious bodily injury (49 U.S.C. § 60123(b))
    • Illegal reentry of certain removed aliens listed in 8 U.S.C. § 1326(b)(1) or (2) (e.g., the person has a prior conviction for a felony, an aggravated felony, or 3 or more misdemeanor drug or person crimes)
    • Aiding or assisting certain aliens to enter the united states (8 U.S.C. § 1327)
    • Importation of an alien for immoral purpose (8 U.S.C. § 1328)
    • Export violations (50 U.S.C. App. 4611 et seq.)
    • International Emergency Economic Powers Act (50 U.S.C. § 1705)
    • Disclosing identities of undercover agents, informants, sources (50 U.S.C. § 3121)
    • Robbery or burglary involving controlled substances resulting in death (18 U.S.C. § 2118(c)(2))
    • Destruction of aircraft or aircraft facilities (18 U.S.C. § 32)
    • Destruction of motor vehicles or motor vehicle facilities (18 U.S.C. § 33)
    • Drive-by shooting (18 U.S.C. § 36)
    • Threats against the President (18 U.S.C. § 871)
    • Threats against former Presidents (18 U.S.C. § 879)
    • Genocide (18 U.S.C. § 1091)
    • A conviction for
      a. An offense listed in 18 U.S.C. § 3559(c)(2)(F) (murder, manslaughter, voluntary manslaughter, assault with intent to commit murder, assault with intent to commit rape, aggravated sexual abuse, sexual abuse, abusive sexual contact, kidnaping, aircraft piracy, robbery, carjacking, extortion, arson, firearm use, firearm possession during a drug offense or crime of violence, and attempt, conspiracy, or solicitation to commit any of these offenses) AND
      b. The person was sentenced to a year or more in prison for this conviction, AND
      c. The person has a prior state or federal conviction for murder, voluntary manslaughter, assault with intent to commit murder, aggravated sexual abuse, sexual abuse, abusive sexual contact, kidnaping, carjacking, arson, or terrorism, for which the person served a year or more in prison
    • District of Columbia offenders housed in federal prisons
    • State offenders housed in federal prisons
    • People serving life sentences
    • Noncitizens facing deportation or removal from the U.S.

About the Author

Ann Fitz

Attorney Ann Fitz Attorney Ann Fitz has 20 years of experience as a federal criminal attorney and appellate practice attorney.  She began her career as a prosecutor in 2003 and started her own federal criminal defense practice in 2007.  She is devoted to protecting the rights of the accused in f...


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