First Step Act
The First Step Act, formally known as the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, is a bipartisan criminal justice bill passed by the 115th U.S. Congress and signed by President Donald Trump in December 2018. The act enacted several changes in U.S. federal criminal law aimed at reforming federal prisons and sentencing laws in order to reduce recidivism, decreasing the federal inmate population, and maintaining public safety.
Procedural history
An initial version of the First Step Act, H.R. 5682, was sponsored and introduced by Rep. Doug Collins with original cosponsor Rep. Hakeem Jeffries on May 7, 2018. This bipartisan bill primarily focused on recidivism reduction through the development of a risk and needs assessment system for all federal prisoners. The bill directed the U.S. attorney general to develop this system along with evidence-based recidivism reduction programs for federal prisoners. Under the bill, prison administrators would use the national risk and needs assessment system to classify a prisoner's risk of recidivism, to make decisions about which recidivism reduction programs might be appropriate for each individual, and to determine when a prisoner is prepared to transfer into prerelease custody. The draft legislation also included a number of other criminal justice reform provisions, including ones that permit Bureau of Prison employees to store firearms in designated off-site firearms storage facilities or vehicle lockboxes and carry concealed weapons outside of the prison ; prohibit the use of restraints on prisoners during pregnancy, labor and postpartum recovery, except where a health care provider determines otherwise or where the prisoner is an unreasonable flight risk or public safety threat ; place prisoners as close as possible to their primary residence where practicable ; expand compassionate release for terminally ill patients and reauthorize the Second Chance Act of 2007 ; mandate the Bureau of Prisons to provide identification to returning citizens ; authorize new markets for Federal Prison Industries ; mandate de-escalation training for correctional officers and employees ; direct reporting on opioid treatment and abuse in prisons ; improve availability of feminine hygiene products in prison ; and other actions.After introduction, the bill was immediately referred to the House Committee on the Judiciary, and was subsequently voted out of committee—accompanied by a report—on a 25–5 vote on May 22, 2018. The House Committee's report highlighted Bureau of Prison data about recidivism, and warned of the fiscal and social costs of repeated arrest, conviction and incarceration. It also expressed concern with shrinking educational and vocational opportunities for inmates, given the proven potential of those activities to reduce criminal tendencies. The bill passed the House of Representatives by a 360–59 vote the same day, with remarks from many congressional members, including Rep. Jerry Nadler, who acknowledged that though the bill did not include sentencing reform as some would have liked, it was an "important first step" that was able to unify groups as divergent as #cut50 and the Koch Foundation. After passage, the bill was referred to the Senate.
The Senate did not ultimately vote on H.R. 5682, nor did it consider S. 2795—a companion bill to H.R. 5682 that was introduced in the Senate on May 7, 2018, by Senator John Cornyn and referred to the Senate Judiciary Committee. The Senate did not actually vote on criminal justice reform until December 2018 due to disagreement about the scope of the First Step Act. Without the inclusion of meaningful sentence reform akin to the measures proposed in the Sentencing Reform and Corrections Act of 2015, many Senate Democrats were unwilling to support it. After months of intense brokering in the Senate, Senator Chuck Grassley introduced a version of bill on November 15, 2018, that incorporated the correctional reforms from S. 2795/H.R. 5682, added supplemental measures, and—importantly—included new sentencing reform provisions. It garnered more than 40 cosponsors.
On December 12, Senator Grassley, along with cosponsor Senator Dick Durbin, introduced a revised version of S. 3649 as S. 3747, which preserved S. 3649's content and added an additional title reauthorizing and amending the Second Chance Act of 2007. In an unusual procedural move, and after reversing his statement that he would not proceed on a vote until 2019, the Senate Majority Leader Mitch McConnell on December 13, 2018, substituted the content of The First Step Act into a S. 756—a substantively unrelated bill called the Save Our Seas Act, which was originally introduced by Senator Dan Sullivan on March 29, 2017—in order to solicit final amendments and bring the matter to a vote.. Many Senators moved to submit amendments, among them Senators Tom Cotton and John Kennedy. They introduced controversial amendment 4109 to S. 756 to expand the types of convictions that would render an inmate ineligible for good-time credits and to require prison wardens to notify every crime victim of the release date of the inmate associated with their offense, among other information-sharing measures. They argued that these reforms were necessary to protect victims, but bill-backers viewed the move as a last-minute effort to derail months of consensus building.
In his statement to the Senate prior to the vote encouraging bill passage and discouraging the Cotton-Kennedy amendments, Senator Dick Durbin stated that the notification requirements of the Cotton-Kennedy amendments duplicated already-existing notification and information-sharing provisions of the Crime Victim Rights Act while undesirably disallowing victims to opt out of notifications. He also suggested that the Cotton-Kennedy amendments attempted to add crimes to the exclusion list that they had previously opposed. The Cotton-Kennedy Amendments were rejected in a 37–62 vote, and did not become a part of the bill. On December 18, 2018, the revised First Step Act passed the U.S. Senate as S. 756 on a bipartisan 87–12 vote.
The House approved the bill with the Senate revisions on December 20, 2018. The act was signed by President Donald Trump on December 21, 2018, and became Public Law 115–391.
Support and opposition
Senators Chuck Grassley, Dick Durbin, Cory Booker, and Mike Lee championed the First Step Act in the Senate and built a bipartisan coalition to pass the legislation. In the House, Representatives Doug Collins, Hakeem Jeffries and John Lewis promoted similar legislation, albeit without sentencing reform provisions. Though President Donald Trump was initially skeptical of the legislation, intense lobbying by his son-in-law and senior adviser Jared Kushner eventually persuaded him to back the bill and push for a floor vote in 2018. Kushner's efforts included contacting the Murdoch family to encourage positive coverage, appearing on Fox, securing Vice President Mike Pence's support, scheduling policy time discussions with Trump, and arranging meetings with celebrities like Kanye West and Kim Kardashian and media players like Van Jones to lobby Trump. Prominent conservatives from political and advocacy backgrounds also wrote to President Donald Trump on August 22, 2018, addressing criticisms of the First Step Act, assuring him of conservative support for the measure, and urging him to support it.Republican lawmakers who opposed the bill included Senators Tom Cotton, John Kennedy, Ben Sasse, and Lisa Murkowski. Twelve Republican senators in total voted against the First Step Act. Though Senator Ted Cruz was originally opposed to the legislation, he ultimately backed the bill after an amendment he drafted to expand the crime exclusion list was adopted.
No Democratic congressional members voted against the First Step Act. However, some liberal commentators such as Roy L. Austin Jr., who worked on criminal justice in the Obama administration, criticized the act for not delivering more relief to more prisoners.
Main legislative provisions
The law as enacted is divided into six titles and codified at various parts of Titles 18, 21, and 34 of the United States Code, based on the subject of legislation.Title I
Title I directs the U.S. Attorney General to develop and publicly announce a risk and needs assessment system for all Federal Bureau of Prison inmates within 180 days of enactment, and to recommend evidence-based recidivism reduction activities. This risk and needs assessment system, once developed, is to be used under the First Step Act to classify prisoner risk of recidivism, match prisoners with suitable recidivism reduction activities based on their classification, inform housing decisions so that prisoners in similar risk categories are grouped together, and create incentives for participation in and completion of recidivism-reduction activities. These incentives include increased access to phone privileges, transfer to penal institutions closer to a prisoner's primary residence, and time credits to reduce sentence length. However, time credit rewards are not available to all prisoners; 18 U.S.C. § 3632—where Title I of the First Step Act was codified—details nearly 70 types of convictions that render an inmate ineligible to accrue time credits for successfully completing recidivism-reduction activities. Additionally, prisoners subject to "a final order of removal"—which renders an individual deportable—are also ineligible from receiving good time credit incentives. Those who participate in risk and needs assessment activities may be eligible for prerelease custody or supervised release as described in 18 U.S.C. 3624. This title also increases the number of good-time credits per year—small sentenced reductions earned by prisoners for good behavior—from 47 to 54, which many believe was consistent with the original intent behind 18 U.S.C. § 3624. Importantly, the law retroactively applies the good-time credits, making some prisoners immediately eligible for release based on accrual of seven additional good-time credits per year.Title I of the First Step Act, as codified at 18 U.S.C. § 3621, also directs the Director of Bureau of Prisons to perform an initial risk and needs assessment of all federal prisoners within 180 days of the Attorney General's release of the risk and needs assessment system, and to begin expanding recidivism-reduction activities.