We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

FIRST STEP ACT – BOTH MORE AND LESS THAN MEETS THE EYE

I tried to take a few days to travel to the East Coast for Christmas with the granddaughters. But my inbox did not take any time off, with over 300 emails from inmates wondering what the First Step Act President Trump signed last Friday, would do for them.

I will try to cover what it includes in its 148-odd pages for people who have already been sentenced.

•   SENTENCING LAW CHANGES

First Step made some important sentencing law changes, which unfortunately are not very useful to the already-sentenced. From now on, no one can be convicted of a subsequent 924(c) gun offense carrying a 25-year penalty unless he or she has already been convicted of the first one. The government can still stack up 924(c) offenses in an indictment, but each one would only carry the 5-year, 7-year or 10-year penalty.

First Step also reduces the so-called 851 enhancement because of prior drug convictions penalty from life to 25 years and from 20 years down to 15 years. But where 851 enhancements used to be for drug offenses only, the provision slips in “serious violent felony” as a prior that will count, too.

First Step expands the “safety valve” for drug offenders. It used to be that the defendant could not have more than one Guidelines criminal history point. Now, a defendant can have up to four points, with some limitations.

Finally, the 2010 Fair Sentencing Act changed how crack cocaine was compared to powder cocaine from a 100:1 ratio down to an 18:1 ratio. This eased harsh sentencing for a lot of people whose prison terms were driven by crack cocaine amounts in their cases. But it was not retroactive, leaving a lot of people sentenced before August 2010 with a lot of time under a sentencing structure that had been judged to be unfair. The First Step Act fixed that, extending the Fair Sentencing Act to those people.

•   GOOD TIME CHANGES

When Congress wrote good time into law 30 years ago, it did a sloppy job. It awarded a maximum of 54 days a year, but the provision was so poorly written that it could mean that if you served 319 days, you got 54 days of good time to make up one year, or that you had to serve 365 days, after which you got 54 days. The difference in how you interpreted it amounted to seven more days a year.

Unsurprisingly, the BOP chose to read it the way that shorted everyone the seven days, and the Supreme Court upheld the agency’s right to interpret a messy statute the way it wanted to. The First Step corrects this, so that Congressional intent is clear. Congress always meant “do 319, get 54 more.” Now the BOP has no more wiggle room.

•  EARNED TIME FOR PROGRAMMING

The heart of First Step is recidivism programming. Congress does not want you to come back to prison. The idea is that every prisoner should be assessed to determine how likely he or she is to commit a new crime after release. There will be four categories, minimum, low, medium and high. After the risk assessment is done, the BOP will offer programs that have been shown to reduce recidivism. If prisoners successfully complete the programs, they will be rewarded with credits that the BOP will use to offer more halfway house or even shorten the length of the prisoner’s sentence, 10 days for every 30 days of programming or – when you reach the minimum-risk level – 15 days.

Warning: minimum risk is not the same as minimum security, and high risk is not the same as high security. It is entirely possible that your risk level will have nothing to do with your security/custody level.

Will you get a shorter sentence or more halfway house? It is totally within the BOP’s discretion. You cannot get more than 12 months of time off your sentence, leaving extra earned-time credits for increased halfway house, on which there is no cap. No one knows whether the BOP will prefer halfway house over shorter sentences, but sending you to supervised release is much cheaper for the BOP than sending you to more halfway house. I suspect the BOP will go for cheap.

To satisfy politicians who wanted to look tough on crime to the folks at home, the bill has 63 categories of offenses of conviction that do not qualify for any earned time for programming. The fact that it does not make sense to keep these prisoners from completing programs that would do them and society a lot of good does not matter. What matters is how the senator or congressman looks at re-election time.

•   ELDERLY OFFENDERS

The Second Chance Act of 2007 authorized the BOP to conduct a two-year pilot program to send elderly offenders to home confinement. The program was limited to one prison (we believe the BOP used Elkton), and it only would send home someone who was 65 or over, was non-violent, had served at least 10 years, and had served at least 75% of his sentence (no women at Elkton, so it was all “he”). The limitations are at 34 USC 60541(g)(5)(A) and are worth reading.

With limitations like these, it is little wonder that only a handful of people ever qualified. The First Step Act readopts and expands the elderly offender home detention program. First, EOHD applies to all prisons, not just a single one. Second, the eligible prisoner just has to be 60 years old or older, and originally was intended to have to have served just two-thirds of the sentence.

A very peculiar twist is this: the legislation had always abolished the 10-year minimum service of sentence requirement, but somehow, in the final version passed by the Senate, that sentence was quietly dropped. Usually, when provisions were wrested from the bill, it was because Sen. Ted Cruz, Sen. Tom Cotton, or some other troglodyte legislator noisily opposed it. I am trying to find out whether the omission was a scrivener’s error or intentional. But if the 10-year limitation remains, all but a handful of nonviolent elderly offenders will ever qualify for the relief.

The original program pretty much left decisions to BOP discretion, including determining “that release to home detention under this section will result in a substantial net reduction of costs to the Federal Government” and that the prisoner is “at no substantial risk of engaging in criminal conduct or of endangering any person or the public if released to home detention.” All of that remains in the law, and applies to EOHD.

Back in 2009, when the pilot program was running, prisoners were told to contact their unit teams to determine whether they were eligible. There was no appeal except through the administrative remedy process. That does not appear to have changed.

•   COMPASSIONATE RELEASE

Both the Sentencing Commission and Congress have been up in arms over the BOP’s dismal record in granting compassionate release under 18 USC 3582(c)(1)(A)(ii). Wait times for BOP action took months, the BOP higher-ups seemed to arbitrarily decide that dying prisoners were not terminally ill, and more people died waiting for a decision on compassionate release than received it. And if the BOP refused to file a compassionate release request with the sentencing court, there was nothing anyone could do about it.

The First Step Act rewrites compassionate release, both giving and taking away. Anyone with a crime or violence or sex offense is now excluded, but if the inmate is not dying right away, but requires nursing home-quality care, he or she is now eligible. The BOP is directed to act within deadlines on deciding cases, directed to notify families immediately about terminal diagnoses and about their rights to file a compassionate release. Most important, perhaps, compassionate release applicants can file their own requests with the court if the BOP refuses to do so.

•   HOME CONFINEMENT

Everyone knows that home confinement is dirt cheap for the BOP, but that getting it from the BOP instead of halfway house is like pulling teeth. The First Step Act directs that the BOP “to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph.’’

It is a fine sentiment, but the way the provision is written, it is more a suggestion than a mandate. Still, it may give the BOP some cover from the agency’s fear of bad press that may come from sending someone to home confinement, only to have them run amok.

•   500 MILES…

First Step gives the same guidance, but a little more forcefully, to the placement of inmates. Of special interest to those reading this newsletter, the BOP is directed, “subject to consideration of the factors described in the preceding sentence [bed space, programming needs, security and medical needs] 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.”

This is a nice provision, helpful to a lot of prisoners who cannot get a transfer because they are 495 air miles from home, but there is a suitable prison 10 miles from the family. The only downside to this provision is that it specifies that you have no judicial remedy if the BOP wrongfully refuses transfer.

•  OTHER STUFF

The Senate print of the bill runs 148 pages, so there is a lot that is not covered here. Pregnant prisoners will no longer be shackled, and women will be provided certain healthcare products without charge, products that the men have no need for. The bill also provides for a lot of evaluation of the programming portions of First Step, meaning that if the attack on recidivism does not work, the legislation could go away someday (although that would require Congress to act, and we have all seen how long that can take).

Tomorrow, I’ll try to take some of the hundreds of questions I’ve been getting on the bill.

S.756, First Step Act, passed into law Dec. 21, 2018

– Thomas L. Root