The First Step Act and Compassionate Release During COVID-19

by | Mar 2, 2021 | Justice, COVID-19

Enacted in December 2018, Congress created the First Step Act (the “Act”) to improve criminal justice outcomes. The Act, among other things, intends to reduce recidivism, implement sentencing and correctional reform, and incentivize good behavior by increasing the number of credits prisoners can earn towards pre-release custody. Overall, the Act reforms conditions for many types of offenders from their sentencing, to their treatment in prison, and their reentry into society after prison.


Who is supposed to benefit from the First Step Act?

The first class of prisoners who are supposed to benefit from the Act are felony drug offenders serving lengthy mandatory sentences. The Act reduces mandatory minimum penalties for drug offenses, which means that repeat felony drug offenders who were previously sentenced to mandatory life in prison now face reduced mandatory sentences of twenty-five years in prison. This way, prosecutors and judges are allowed to give lower sentences to defendants than they have in the past. Now, felony drug offenders with a prior conviction, who previously faced twenty-year mandatory sentences, may receive reduced sentences of fifteen years. Offenders facing these sentences are typically repeat offender drug traffickers of controlled substances, like heroin, LSD, or fentanyl. In addition, the Act changed when mandatory minimum penalties apply. Before the Act, the 20-year mandatory minimum penalty applied to repeat offenders with prior felony drug convictions. However, now, to be subject to the mandatory penalty, the defendant’s prior conviction must have been a “serious drug felony” or “serious violent felony.” Therefore, fewer defendants are facing these severe mandatory minimum penalties because their prior convictions do not meet the threshold of being a “serious” felony. This information can be found in this February 2019 Newsletter from the U.S. Sentencing Commission, titled “First Step Act.”

The second group of prisoners benefitting from the Act are nonviolent drug offenders with minor criminal histories. The Act reformed a “Safety Valve” provision, which applies to defendants with a minimal criminal record, who did not lead the offense, did not use violence or cause serious injury, and thoroughly informed the government about the offense. The reform increases the criminal history these defendants can have from one point to four points. The Congressional Research Service explains how a prior 60 day sentence of imprisonment earns one criminal history point, 60 days to a year and a month earns two points, and sentences over a year and a month result in three points. This change means that nonviolent drug offenders can have up to four prior, one-point offenses and not be subjected to mandatory minimum sentences. However, two-point and three-point offenses are disqualified from the safety valve.

The third group the Act intends to benefit are current incarcerated prisoners who are serving sentences related to crack cocaine possession since before August 3, 2010. On that date, the Fair Sentencing Act was enacted, which increased the amount of crack cocaine a defendant needed to possess before he was subjected to a mandatory minimum penalty. For example, before the Fair Sentencing Act, 5 grams of crack cocaine could result in a sentence of anywhere from a five-year minimum to a forty-year maximum sentence. Now, the Act provides that a defendant must possess 28 grams of crack cocaine before he is subjected to that mandatory sentencing penalty. The First Step Act applies the changes in the Fair Sentencing Act retroactively, so current incarcerated individuals can petition the court for reductions in their sentences to account for the shorter sentences they would have received if they committed the same offense today. Therefore, a current prisoner serving 30 years in prison for possession of 50 grams of crack cocaine could petition the court and receive a reduced sentence of 15 years.

The fourth group the Act intends to benefit are defendants who have multiple counts of conviction in the same indictment. For example, a defendant convicted of three counts of burglary in the same indictment would have previously received a 55-year sentence. The first count would receive a mandatory minimum of 5 years, then 25 years would be added for each subsequent count. Altogether the total becomes 55 years for just those three counts of burglary. However, the Act lowered the mandatory minimum twenty-five-year sentences for each subsequent count to five years per count. Going back to the example, three counts of burglary now carry a mandatory minimum sentence of 15 years rather than 55 years because the defendant receives five years for each count. Therefore, the Act reduces the severity of sentencing when stacking multiple offenses for one defendant in one indictment.


What has been done to reduce recidivism?

The First Step Act also includes reforms to prevent prisoners from going back to jail after they are released. According to “An Overview of the First Step Act,” the Act requires the Bureau of Prisons to implement programs intended to reduce recidivism that account for the specific needs of each prisoner based on the crimes each person committed. Examples of programming available include drug treatment, ESL classes, educational classes, and vocational training. The Act also provides guidance on how to place prisoners of similar risk levels together in programming and housing assignments to aid in reducing recidivism. In addition, the Act increases reentry programming to better ensure a smooth introduction back into society, which can also result in a reduced risk of reincarceration.


What are good time and earned time credits and what are their roles?

As outlined in the FAMM.org’s article “Frequently asked Questions on the First Step Act, S. 756,” good time credits are earned for good behavior during incarceration and knock off time from a prisoner’s sentence. All incarcerated individuals, except those serving a life sentence, can earn these credits. The Act has increased good time credits from a maximum of 47 per year to a maximum of 54 days a year. For example, for a person sentenced to ten years in prison, who earns his good time credits each year, 540 days would be knocked off his ten-year sentence and he would be released almost a year and a half early as opposed to 470 days early. Finally, these additional credits will be applied retroactively to incarcerated individuals who have not lost any good time credit during their sentences. The Bureau of Prisons automatically calculates and applies these credits at the end of each year a prisoner is incarcerated.

The Act also introduced a new good behavior incentive called “earned time credits.” Earned time credits cannot be applied to reduce a sentence but can be used for early transfer into a halfway house, home confinement, or supervised release. Unfortunately, several types of offenders are excluded from earning time credits, such as those who committed violent crimes. Therefore, unlike good time credits, earned time credits are not available to all incarcerated individuals.


Who is eligible for Compassionate and Elderly Release?

Compassionate release occurs when a prisoner is eligible for an immediate early release by meeting qualifying, extenuating circumstances, such as being over the age of 60 and suffering from a terminal illness. The First Step Act reformed the compassionate release process by making it accessible to prisoners and informing them of their eligibility. Similarly, eligible elderly prisoners can be released early into home confinement if they meet certain requirements, such as having served two-thirds of their sentences and being nonviolent offenders. Per D.C. Code, a compassionate release motion can be brought “by the United States Attorney’s Office for the District of Columbia, the Bureau of Prisons, the United States Parole Commission, or the defendant.” Then, a Court rules on the motion by either denying it or granting it. Reasons for denial include a threat to public safety or the sentence served is not just punishment. If the motion is granted, the individual earns supervised release and must abide by release conditions, like reporting to a probation officer. Therefore, the Act creates an easier pathway for elderly and ill prisoners to not have to spend the rest of their lives incarcerated.

Especially during the COVID-19 pandemic, the need for compassionate release has increased exponentially. Federal public defenders and legal aid organizations have been working round the clock to try and get relief for as many prisoners as possible. However, resources are limited, and many prisoners are eligible. If someone you care about is serving a lengthy federal prison sentence who was convicted in the federal district court in DC, Maryland, or Virginia, contact Scrofano Law PC today for a case evaluation. We can help determine if there is a basis for filing a compassionate release motion.

Joshep S.

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