Thursday, November 15, 2018


PMT: What's In the First Step Act?

Yesterday, President Trump announced his support for the First Step Act, which is on the verge of being taken up by the Senate (much of its primary substance was already approved in the House). Though it does not contain everything that advocates might want, it is an extraordinary move in the right direction, and contains several provisions that I have hoped would make it into law for a long time. 

So what all is in there? Recognizing that changes can (and likely will be) made before the First Step Act becomes law, here are some of the primary provisions in the current proposal (based on a draft obtained by the New York Times):

Title One: Data-driven programs and assessments

-- Directs the attorney general to develop a "risk assessment system" for prisoners, which will be reviewed annually. This system will guide placement, housing, and eligibility for programs

-- Also requires that the AG "develop recommendations regarding evidence-based recidivism reduction programs and productive activities" 

-- Creates specific (very specific!) incentives to participate in recidivism reduction programs, including more phone time, visitation, and spending at the commissary, as well as good-time credits that can shorten sentences. Those convicted of several crimes are ineligible for these programs, and "deportable prisoners" are ineligible for the good time credits.

-- Slightly alters the way good-time credit is counted, to the advantage of prisoners.

-- It also creates an "independent review committee" to review the development of the risk and needs assessment system.

Title II: Guns n' Guards

-- This one is kind of a non-sequitur; it provides that prisons provide a place for employees to store their personal guns while they are at work, and allows them to keep guns in their cars while they are at work.

Title III: Ban on shackles for pregnant prisoners

-- With exceptions, bars the use of restraints on prisoners who are pregnant. This goes beyond banning the use of shackles while a prisoner is giving birth, and extends from when the pregnancy is confirmed to the conclusion of post-partum recovery.

Title IV: Sentencing reform

-- Defines the meaning of "serious narcotics felony" and "serious violent felony" as those terms are used in enhancing sentences. In some places describing enhancements, these terms replace "narcotics felony" and "violent felony." The new definitions are more restrictive than the prior definitions for "narcotics felony" and "violent felony" (for one thing, they require that the defendant actually served at least 12 months for the prior), which means fewer enhancements.

-- It lowers some of the mandatory minimums under 21 U.S.C. 841(b), which is the primary federal narcotics law. For example, previously if someone had two qualifying prior convictions and was involved in a significant enough amount of narcotics, the mandatory minimum sentence was life without parole. (Many of our clemency clients were over-sentenced because of this provision). Now the mandatory minimum sentence in that kind of case is 25 years.

-- It broadens a "safety valve" provision that allows a defendant to escape mandatory minimums, and gives judges a little more leeway in employing the safety valve.

-- It prevents the stacking of gun counts enhanced under 18 U.S.C. 924(c) unless there is a conviction for the prior gun count. Currently, if I am carry a gun three times during a drug trafficking crime (say in a series of drug sales to an undercover officer), prosecutors can charge the counts such that the first gun carries a mandatory minimum sentence of 5 years, the second 25 years, and the third 25 years, so that they "stack" to form a mandatory minimum sentence of 55 years-- even for a first conviction. I think they should call this the "Weldon Angelos Law."

-- In 2010, Congress passed the "Fair Sentencing Act" (thanks, Nkechi Taifa!), that reduced sentences in crack cases. It was not made retroactive. This bill would fix that, and allow crack defendants to be resentenced under the current, less severe, mandatory minimums and guidelines. This is a great development; it is profoundly unfair to have denied prisoners this ability for the past 8 years.

Title V: Miscellaneous Criminal Justice (It really is called this!)

-- Subject to some restrictions (and these could be significant loopholes), the Bureau of Prisons is required to "place the prisoner in a facility as close as practicable to the prisoner’s primary residence, and to the extent practicable, in a facility within 500 driving miles of that residence."

-- Takes Compassionate Release out of the sole discretion of the Bureau of Prisons and broadens eligibility for that program (thanks, FAMM!). It also requires that BOP report to Congress after a year on the results of petitions for Compassionate Release.

-- Promotes the use of home confinement where the prisoner is eligible for it.

--  Strengthens and broadens requirements that prisoners be provided with identification documents before release.

-- Broadens markets for prison industries while requiring study of the effect this has on private-sector competitors.

-- Requires de-escalation training for prison guards.

-- Mandates reports on evidence-based opioid treatment in prisons.

-- Establishes pilot programs in (1) mentorship to youth, and(2) service to vulnerable animals. 

-- Requires data collection on the demographics of the prison population (including the number of pregnant prisoners)

-- Mandates that feminine hygiene products be provided free to female prisoners.

-- allows more money to be spent on adult/juvenile collaboration programs

So, what have we got here? It seems like there are four separate threads that predominate:

1) A move towards data analysis as a tool for making decisions about those in prison and returning citizens who have completed their sentences;

2) A few provisions go directly towards respecting (in relatively modest ways) the human dignity of prisoners;

3)  This legislation recognizes that the BOP needs some monitoring; and

4) Files away a few of the harshest edges of sentencing law and practice.

That is all good. One major criticism: Many of the changes are not retroactive. That means that people will remain in prison even though they would be out under current law. That's unfair-- in the words of sentencing geeks, it creates an unwarranted disparity. Which in turn means that reforming the clemency system remains important, since that will be the only way to address that disparity and help people serving sentences far longer than they would receive under current law.

Thanks Mark for the shout out that we still need clemency. It's a great bill, but won't give one day of relief to any nonviolent marijuana offenders serving life sentences. Unfortunately, when it's passed, many will think the work is done. Beth
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