Blog

The First Step Act: Frequently Asked Questions

Nov 28, 2018

Background

The goal of the First Step Act, commonly known as the Prison Reform Bill, is to improve public safety by reducing the high recidivism rates that currently exist in America. This would be accomplished by implementing rehabilitation programs specifically designed to lower the chances that a federal inmate will reoffend when released from prison.

Evidence shows that many offenders who use these programs, many of which are conducted by faith-based organizations, are able to reenter society and become productive, law-abiding citizens. The FY 2019 Justice Department report to Congress showed that education programs yield a 16 percent reduction in recidivism among participating inmates; occupational training programs have seen a 33 percent reduction; Federal Prison Industries, a work skills program, 24 percent; and residential drug abuse treatment, more than 15 percent.

Unfortunately, some oppose the bill on the falsehood that it would provide a “get out of jail free card” for violent offenders. This couldn’t be further from the truth.

Here are some frequently asked questions and answers about The First Step Act:

1. Would the First Step Act allow thousands of high-risk violent federal offenders to be released earlier than they would be under current law?

No. The First Step Act only allows low-risk federal offenders, as determined by the Department of Justice, a chance to change where they serve their prison sentence by participating in programs specifically designed to decrease their chances of reoffending after leaving prison. These programs provide inmates with job skills, educational opportunities, and mental health or substance abuse treatment to offer hope. According to The Heritage Foundation:

The bill would require the Bureau of Prisons to match inmates to programs that are designed and tested to address those factors, allowing minimum and low-risk inmates who successfully participate in and complete those programs to earn time credits that they could cash in toward the end of their sentence to serve some final portion sentence under some form of community confinement. But the bill would exclude inmates who are convicted of many serious offenses—mostly violent crimes, terrorism-related offenses, and child exploitation crimes—from taking advantage of these incentives.

2. Does the First Step Act have the support of law enforcement professionals?

Yes. The Fraternal Order of Police, the International Association of Chiefs of Police, the National District Attorneys Association, and the National Organization of Black Law Enforcement Executives all support the bill. The bill is also supported by President Trump who is known to be tough on crime and very supportive of law enforcement.

3. Does the First Step Act reduce prison sentences for high-risk offenders?

No. The First Step Act does not reduce prison sentences for high-risk offenders. Instead, it allows prisoners to earn time credits for successfully completing programs designed to reduce recidivism. It is important to note that prisoners who successfully complete these programs do not have their sentences reduced, but instead have the conditions of their confinement changed to either a halfway house, supervised release, or home confinement.

One provision in the Senate version of The First Step Act moderately reduces mandatory minimum enhancement parts of a sentence, not the underlying crime, for repeat drug offenders. That means that even a youthful offender who was convicted of simple possession and given a probated sentence might get clean for a time but be convicted of another drug offense years later, and face a severe decades-long sentence.

4. Has there been real legislative debate over The First Step Act or was it just rushed through without a hearing?

Yes. The First Step Act was debated extensively by the House Judiciary Committee during markup in May 2018. The Senate Judiciary Committee has also debated the sentencing reform provisions in the bill in 2015 and again in 2018.

5. Does the bill make it harder to secure the convictions of violent criminals?

No. The bill does not make it harder to convict violent criminals. As mentioned above, inmates who are convicted of violent or other serious offenses would not be eligible for the early release credits.

6. Do shorter prison sentences lead to more crime?

No. Evidence shows that extended imprisonment, and in particular, imprisonment related to drug crimes, are not effective in reducing recidivism. The longer a low-risk prisoner spends in prison exposed to higher-risk prisoners, the more likely he is to reoffend when released. Incarceration may be more effective when targeted towards violent, high-risk offenders instead of low-risk offenders. According to the former attorney general of Virginia Ken Cuccinelli:

Typical drug abusers organize their lives over short timeframes, making them less likely to consider the long-term repercussions of their actions, including the potential for imprisonment. Once they are locked up, incarceration usually fails to motivate them to meaningfully change their behavior. (Given that simple incapacitation doesn’t make many demands of them, why should they change?) Nor does prison address their underlying psychosocial environment that often functions as an incubator for addiction in the first place. Is it any wonder then why this population in particular recidivates so frequently upon release? Criminal justice reform is engineered to incentivize participation in substance-abuse treatment and other recidivism-reduction programs, or otherwise to curb overly-punitive sentences.

7. Do people go to Federal prison for low-level offenses?

Yes. Thousands of people are incarcerated for low-level drug offenses each year. Low-level offenses include first-time non-violent offenders incarcerated for a single drug offense or a courier participating in an operation involving drugs. At times, federal prison is used too often as a corrective method for these types of crimes. For instance, in 2004, a man named Weldon Angelos was found in possession of both marijuana and a firearm which he had never used. The marijuana charge would have resulted in 6-8 years of federal prison time but with the gun possession at the time of arrest, Angelos received a 55-year sentence. In regards to the Angelos case, Ken Cuccinelli says:

The sentencing judge in his case had no choice but to follow the law. Nonetheless, he appealed to Congress to address what he called an “unjust, cruel, and even irrational” punishment, and pointed out in his decision that Angelos would have been treated more leniently should he have been convicted of hijacking an aircraft, rape, or even second-degree murder. I consider myself particularly tough on gun offenses, but is what Angelos did really worse than hijacking an airplane? Rape? Second-degree murder? This is evidence of a system that needs correction.

8. Does the First Step Act allow illegal immigrants to use earned time credits for placement in pre-release custody?

No, per section 101, illegal immigrants are specifically excluded from using earned time credits, which allow an inmate to transition to a halfway house or home confinement for participating in vocational and rehabilitative programs.

9. Does the First Step Act allow prisoners who assault a police officer with a deadly weapon to use earned time credits for placement in pre-release custody?

No, per section 101, prisoners who are convicted of assaulting a law enforcement officer with intent to commit murder are specifically excluded from using earned time credits, which allow an inmate to transition to a halfway house or home confinement for participating in vocational and rehabilitative programs.

10. Does the First Step Act allow prisoners who committed sex trafficking to use earned time credits for placement in pre-release custody?

No, per section 101, prisoners who are convicted of sex trafficking are specifically excluded from using earned time credits, which allow an inmate to be released early to a halfway house or home confinement for participating in vocational and rehabilitative programs.

11. What are the sentencing reforms that were added to the First Step Act?

The Senate version of the First Step Act includes four much-needed sentencing reforms. These reforms address unfairly harsh penalties, allow individuals subject to draconian penalties the opportunity to petition a court to get their sentence reduced, help ensure that only high-level drug offenders are serving mandatory minimum prison sentences, and modestly reduce certain drug penalties.

Critics of the First Step Act are concerned that these reforms would allow the worst offenders to be released from jail early. According to John Malcolm, Vice President for the Institute for Constitutional Government and Director of the Meese Center for Legal & Judicial Studies at the Heritage Foundation:

Sentencing judges always retain the discretion to sentence an offender to a period of incarceration up to the statutory maximum, which is often far longer than the specified mandatory minimum penalty—so the worst of the worst would still be punished accordingly.

12. Are time credits too easy for criminals to get and are productive activities defined too vaguely?

Opponents of the First Step Act say that “productive activities” is defined so vaguely that, according to the Bureau of Prisons, playing softball, watching movies, or doing activities that the prisoners are already doing today will result in new time credits. They argue that if the credits are this easy to get, how will this change the behavior of serious felons?

This argument couldn’t be further from the truth. Productive activities are designed by federal prison wardens and would include programs such as faith-based services and classes, behavioral treatment, education, drug rehabilitation, and social learning. These are all activities that empirical evidence shows reduce recidivism and help offenders re-enter society.

Resources:

The Heritage Foundation: How This Criminal Justice Reform Bill Could Make our Neighborhoods Safer
The Heritage Foundation: Trump is Leading the Way on Conservative Criminal Justice Reform. Here’s the Proposal
FreedomWorks: Separating Facts From Fiction on the First Step Act
American Spectator: Three Myths from Critics of Criminal Justice Reform
PEW Research Center: Federal Drug Sentencing Laws Bring High Cost, Low Return
The Heritage Foundation: Congress is Right to Consider Prison Reform