December 12 2018: The First Step Act to Get a Full Senate Vote

The last month as been a bit of a roller coaster ride regarding the First Step Act. The folk here and National Prison and Sentencing Consultants have been monitoring this bill and its progress daily. About 4 weeks ago, it looked promising, then Senator Mitchell McConnell (R-KY), the Senate majority leader, decided that there was no time left for the full Senate to consider the bill and therefore it would have to be taken up after January 3, 2019 when the newly elected Congress begin their terms. This certainly would have been the death knell of the First Step Act. The reasons are politically complex, but it boils down to this. The First Step Act as currently written is a true bi-partisan compromise bill. Most Democratic legislators do not feel it goes far enough and many Republicans feel it goes too far. If the bill is not passed this year, it is likely that in a Democrat controlled House a bill more satisfactory to the Democrats would have passed the House, but with a Republican controlled Senate, no companion bill would have been approved: Hence, the bill dies. Thanks to pressure from Jared Kushner, the POTUS and many others, Senator McConnell agreed to put the bill up for a floor vote. However, passage is not a certainty as several right-wing Republican Senators have vowed to introduce “floor” amendments that would substantially water down the bill as currently written. As currently written the First Step Act would:

1. The bill would make retroactive the reforms enacted by the Fair Sentencing Act of 2010, which reduced the disparity between crack and powder cocaine sentences at the federal level. This could affect nearly 2,600 federal inmates.
2. The bill would take several steps to ease mandatory minimum sentences under federal law. It would expand the “safety valve” that judges can use to avoid handing down mandatory minimum sentences. It would ease a “three strikes” rule so people with three or more convictions, including for drug offenses, automatically get 25 years instead of life, among other changes. It would restrict the current practice of stacking gun charges against drug offenders to add possibly decades to prison sentences.
3. The bill would increase “good time credits” that inmates can earn. Inmates who avoid a disciplinary record can currently get credits of up to 47 days per year incarcerated. The bill increases the cap to 54, allowing well-behaved inmates to cut their prison sentence by an additional week for each year they’re incarcerated. The change would apply retroactively, which could allow some prisoners — as many as 4,000 — to qualify for release the day that the bill goes into effect.
4. Increase Home Confinement from a Maximum of 10% to 15% for eligible federal inmates.
5. The bill would allow inmates to get “earned time credits” by participating in more vocational and rehabilitative programs. Those credits would allow them to be released significantly earlier early to halfway houses or home confinement.
6. Would allow inmates or their representatives to file a motion directly with the court for Compassionate Release rather than only permitting the BOP from doing so.

However, Senator Thomas Cotton (R-AR) opposes the retroactive application of the increase in good time credits and wants it to apply prospectively only. Further, he has asserted fear (largely nonsensical, antiquated and unrealistic) that all inmates can earn additional earned time credit even though the currently written bill excludes federal inmates convicted of certain violent offenses (50 excluded offenses listed) from participating in early release programs. All of us here are waiting for the final bill to pass to see what effects its passage could have on its clients and other federal inmates. We will update this page as soon as the Senate votes.