THE FIRST STEP ACT OF 2018: DOES IT HELP REGISTERED CITIZENS?
A Summary of what the First Step Act does an does NOT do
Derek W Logue of OnceFallen.com
Created on 22 May 2019, Updated 24 Aug 2019
This First Step Act is the first major criminal justice reform bill since the Second Chance Act, but sadly, this reform bill will do little to benefit Registered Persons incarcerated in the federal system. (Because the First Step Act is a federal law, it applies only to the federal correctional system, not state-level systems, though state-level prisons my follow suit.
PEOPLE CONVICTED OF SEX CRIMES INELIGIBLE FOR MOST BENEFITS OF THE FIRST STEP ACT
Even before the December 2018 debate over S3649, a number of sex crimes were excluded from the Act. Senate Republicans, particularly between one faction led by Tom Cotton (R-AR), who successfully derailed a similar criminal justice reform bill in 2016 , and the other faction led by Sens. Chuck Grassley (R-IA) and Mike Lee (R-UT). Cotton wanted to expand the list of exclusions to cover every sex and violent offense, playing on Predator Panic in an attempt to derail the bill. “Now that the Department of Justice has confirmed that the Senate FIRST STEP Act offers early release to multiple categories of sex offenders in several provisions of the bill, Congress should fix these problems instead of ramming this bill through. There is no such thing as a ‘low-risk violent sex offender’ who deserves earlier release than under current law,” Cotton wrote in an emailed statement to Politico. In response, Lee wrote, “Just because a federal offense is not on the specific list of ineligible offenses doesn’t mean inmates who committed [a] non-specified offense will earn early release; All inmates must first pass a DOJ risk assessment before they can even begin earning good time credits. And then they must secure certification from their warden that they are not a threat to safety before they can be released,” and added that opponents were spreading “fake news.” 
Lee’s claim opponents were spreading fake news, particularly Cotton, was a legitimate concern. In an op-ed to the National Review (a conservative publication), Sen. Cotton used an anecdotal example relying on Predator Panic in an attempt to derail the bill. Cotton misrepresented the story of a former NASCAR driver who was convicted in August of “trying to force a twelve-year-old girl to have sex with him.” He added, “C’s sex crime was not obscure, low-level, or ‘victimless.’ Quite the opposite. His crime had the potential to shatter a child’s life.”(3) In reality, there was no child involved; the driver was nabbed in an online sting operation. The Sentencing Law and Policy blog added, “But to say he tried to force a 12-year-old to have sex seems off since there never was an actual 12-year-old. Indeed, I think it fair to call C’s crime ‘victimless,’ though the case really serves as a great indication of how hard it is to place accurate short-hand labels on various crimes (and how easy it is for Senator Cotton to make a crime sound worse than it was is using short-hand labels). To allow C., who is 60 years old and appears to have no criminal history, the chance to earn “time credits” by completing evidence-based programming to reduce his risk of recidivism seem to me sensible, not scary. (And, as I understand matters, if a risk assessment procedure were to classify Crawford as “high-risk” he would not in fact get any sentence reductions.)” 
Cotton also claimed that, “According to the United States Sentencing Commission, there are 1,466 sex offenders convicted under 18 USC 2422(b) that will be eligible for the credits unless this amendment is passed.”
Interestingly, the Senate replaced the S.756 – Save Our Seas Act of 2018 with the text of the First Steps Act, which has led to confusion and difficulty in following the events of the Senate vote. I cannot specify exactly when the change to add “Failure To Register” was made to the bill. However, it has been reported that Cotton’s amendment to make all sex crimes ineligible for the early release programs (SA4140) failed.
Regarding the passage of the First Steps Act in the Senate, the 12 Senate Nea votes came from Barrasso (R-WY), Cotton (R-AR), Enzi (R-WY), Kennedy (R-LA), Kyl (R-AZ), Murkowski (R-AK), Risch (R-ID), Rounds (R-SD), Rubio (R-FL), Sasse (R-NE), Shelby (R-AL), and Sullivan (R-AK). Lindsey Graham (R-SC) abstained from voting.
A BREAKDOWN OF THE FIRST STEP ACT OF 2018 BY SECTION
The First Step Act (S.756 – 115th Congress) was signed into law on 12/21/18 and now we have the clearest picture of what the First Step Act means for federal SO inmates. The short answer is that very few people, especially SOs, will benefit in any way from the First Step Act; the Act is aimed primarily at “low level drug offenders”. It is important to note that S.756 was originally a completely different bill called the “Save Our Seas Act,” but the text of that bill was replaced with the First Steps Act (which was originally S.3649) so people researching the bill progression on the congress.gov site or other bill tracking sites need to know this so they won’t get confused. Also, I’m only covering the parts relevant to SOs so I won’t be covering many portions of the bill that do not directly impact those convicted of sexual offenses.
The First Step Act contains 6 Titles: Title I covers “Recidivism Reduction,” creating various prison programs that certain inmates can take to earn credits towards early release, among other privileges. Title II is the BOP Secure Firearms Storage. Title III prohibits restraints on pregnant and post-partem women. Title IV covers sentencing reforms. Title V reauthorizes the Second Chance Act of 2007. Section VI covers miscellaneous criminal justice issues.
Title I, Section 101 creates a “Risk and Needs Assessment System” and will amend 18 USC 229. Under subsection 3632, the USAG will have 210 days to develop & publicly release a risk and needs assessment program. (Of course, it will likely take longer to actually implement the plan.) This plan will include incentives for program participation, such as phone and/or video conferencing privileges up to 30 min/day and 510min/mo., transfers to institutions closer to release residence, and optional incentives like increased commissary limits, more email privileges, consideration for transfer to preferred housing units, and other incentives.
Subsection 3632(d) covers rewards, and of particular interest is 3632(d)(4) which allows prisoners to earn 10 days good time for every 30 days of successful participation in prison programs, plus those deemed a minimum or low-risk of recidivism can earn an additional 5 days for every 30 days of successful participation (this does not apply to programs taken BEFORE this law is implemented). Time credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in prerelease custody or supervised release. These time credits ARE NOT retroactively applied to participation of past programs before the law takes effect.
Subsection 3632(d)(4)(D) is a list of 48 criminal conviction types NOT eligible for the above-listed incentives. Again, I’m only covering SO-related offenses ineligible for the incentive programs:
- 18 USC 116 (Female Genital Mutilation)
- 18 USC 55 (kidnapping)
- 18 USC Chapter 109A (sexual abuse), which covers the following:
- § 2241. Aggravated sexual abuse
- § 2242. Sexual abuse
- § 2243. Sexual abuse of a minor or ward
- § 2244. Abusive sexual contact
- § 2245. Offenses resulting in death
- 18 USC 2250 (Failure To Register as SO)
- 18 USC 2251 (Sexual Exploitation of Children)
- 18 USC 2251A (Buying/ Selling Children)
- 18 USC 2252 (Certain activities relating to material involving the sexual exploitation of minors)
- 18 USC 2252A (Relating to certain activities involving material constituting or containing child pornography)
- 18 USC 2260 (Production of sexually explicit depictions of a minor for importation into the US)
- OR an offense described in section 3559(c)(2)(F), for which the offender was sentenced to a term of imprisonment of more than 1 year, if the offender has a previous conviction, for which the offender served a term of imprisonment of more than 1 year, for a Federal or State offense, by whatever designation and wherever committed, consisting of murder (18 USC 1111), voluntary manslaughter (as described in 18 USC 1112), assault with intent to commit murder (18 USC 113(a)), aggravated sexual abuse and sexual abuse (18 USC 2241 and 2242), abusive sexual contact (18 USC 2244(a)(1) and (a)(2)), kidnapping (18 USC 55), carjacking (18 USC 2119), arson (18 USC 844(f)(3), (h), or (i)), or terrorism (18 USC 113B).
- If you’re subject to deportation after you complete your sentence, you are ineligible for this program.
This is a lot of offenses to cover so if are unsure which statute you fall under, I can only suggest to consult the US Code to see if your specific offense is a part of this list. (Reminder: I only covered sex offenses; numerous other crimes were also excluded.)
ADDENDUM 8/24/2019: It has been noted that Section 2422(b) related to “coercion and enticement” under Chapter 117 (not listed as ineligible offenses) and NOT under Chapter 109A (listed as ineligible offenses). I believe the confusion here is the numbers in the US Code for 2422b (coercion and enticement) is similar 2242b (under sexual abuse, which is ineligible), and the similar-sounding code to general confusion as to who is still eligible for credits. Since Chapter 117 offenses aren’t listed as ineligible offenses, it is assumed that they qualify for the program benefits listed in Subsection 2632(d).
Under Title I, Sec. 102, (b)(1)(A), 18 USC 3624 is amended in subsection (b)(1) — (i) by striking “beyond the time served, of up to 54 days at the end of each year of the prisoner’s term of imprisonment, beginning at the end of the first year of the term,” and inserting “of up to 54 days for each year of the prisoner’s sentence imposed by the court,”; and (ii) by striking “credit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence” and inserting “credit for the last year of a term of imprisonment shall be credited on the first day of the last year of the term of imprisonment” and replacing it with a section discussing prerelease options for eligible prisoners.
In light of the amount of misinformation the prison “grapevine” tends to spread, I want to point out that the First Step Act DOES NOT necessarily increase good time from 47 days to 54 days. 18 USC 3624(b)(1) already offered UP TO 54 days a year, so the First Step Act didn’t really change good time. Since the law states the prisons can offer UP TO 54 days means that prisons can offer any number of days from none to 54 days. This does not mean any of you WILL earn 54 days a year. That being said, some inmates have already reported seeing the extra 7 days per year.
The provisions of 18 USC 3624(b)(1) do not appear to be impacted by the program ineligibility list mentioned above, since this section is listed after the list of ineligible offenses, which was related to the program incentives listed in the Act section 3632. This had led to confusion, since the focus has been on the list of offenses by most readers.
Nothing in Title IV regarding sentencing reforms benefit anyone except non-violent drug offenders. Title V only covers reauthorizing existing programs under the Second Chance Act of 2007 and making a few semantic changes to the language of the bill.
Under Title VI, Sec 601, the following changes were made:
SEC. 601. PLACEMENT OF PRISONERS CLOSE TO FAMILIES.
Section 3621(b) of title 18, United States Code, is amended—
(1) by striking “shall designate the place of the prisoner’s imprisonment.” and inserting “shall designate the place of the prisoner’s imprisonment, and shall, subject to bed availability, the prisoner’s security designation, the prisoner’s programmatic needs, the prisoner’s mental and medical health needs, any request made by the prisoner related to faith-based needs, recommendations of the sentencing court, and other security concerns of the Bureau of Prisons, 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. The Bureau shall, subject to consideration of the factors described in the preceding sentence and the prisoner’s preference for staying at his or her current facility or being transferred, transfer prisoners to facilities that are closer to the prisoner’s primary residence even if the prisoner is already in a facility within 500 driving miles of that residence.”; and (2) by adding at the end the following: “Notwithstanding any other provision of law, a designation of a place of imprisonment under this subsection is not reviewable by any court.”
What this means is that federal prisoners are granted the option, but not the obligation, to place prisoners in facilities within 500 miles from home unless they have a good reason not to do so, like prison safety, bed space, disciplinary issues or any other excuse the system finds reasonable.
Under Title VI, Sec. 602, the AG has 180 days to implement the plan once the AG report mentioned in Sec. 601 is finalized, including assigning risk levels to prisoners. Thus, the Act gives the AG until 1/15/2020 (e.g., 390 total days from 12/21/18) to implement this incentive program. Expect a request for an extension of that deadline.
Under Title VI, Sec. 603(a)(5), Section 231(g) of the Second Chance Act of 2007 (34 USC 60541(g)) is amended to create programs for terminally ill patients in need of special care. However, eligibility for this program is defined as “serving a term of iimprisonment based on conviction for an offense or offenses that do not include any crime of violence (18 USC 16 (a)), sex offense (sec. 111(5) of 34 USC 20911(5)), offense described in section 18 USC 2332b(g)(5)(B) or 18 USC 37.”
Finally, under Title VI, Sec. 609, administrative changes as listed below:
ENSURING SUPERVISION OF RELEASED SEXUALLY DANGEROUS PERSONS.
(a) Probation Officers.—Section 3603 of title 18, United States Code, is amended in paragraph (8)(A) by striking “or 4246” and inserting “, 4246, or 4248”.
(b) Pretrial Services Officers.—Section 3154 of title 18, United States Code, is amended in paragraph (12)(A) by striking “or 4246” and inserting “4246, or 4248”.
This is merely an administrative change referring to record keeping. 4246 refers to 18 USC 4243 – Hospitalization of a person found not guilty only by reason of insanity, and 4248 refers to 18 USC 4246 – Hospitalization of a person due for release but suffering from mental disease or defect.
In sum, very few people will see any real benefit from the First Steps Act. If you do, consider yourself one of the lucky ones.
- Zak Cheney-Rice. “Tom Cotton’s America Is Not a Free America.” NY Intelligencer. Dec 2018. Online at http://nymag.com/intelligencer/2018/12/toms-cotton-first-step-act.html
- Burgess Everett & Elana Schor. “Cotton wields sex offender report to tank prisons bill.” Politico. 26 Nov 2018. Online at https://www.politico.com/story/2018/11/26/tom-cotton-criminal-justice-reform-senate-republicans-trump-1015149
- Tom Cotton. “Fix the First Step Act and Keep Violent Criminals behind Bars.” National Review. 17 Dec 2018. Online at https://www.nationalreview.com/2018/12/first-step-act-amendments-keep-violent-offenders-behind-bars/
- “Some of Senator Cotton’s suspect claims in his latest case for amendments to the FIRST STEP Act.” Sentencing Law & Policy. 17 Dec 2018. Web. Online at https://sentencing.typepad.com/sentencing_law_and_policy/2018/12/some-of-senator-cottons-suspect-claims-in-his-latest-case-for-amendments-to-the-first-step-act.html
- Tom Cotton. “Myths vs. Facts on the Cotton-Kennedy-Toomey-Kyl-Barrasso amendments to First Step.” Online at https//www.cotton.senate.gov/wp-content/uploads/2021/04/documents/Final%20Cotton-Kennedy%20Myths%20v.%20Facts.pdf