First Step Act: preliminary questions
I have been fielding a lot of calls from clients and potential clients concerning the impact of the First Step Act on their federal criminal charges in Oregon. First things first, If you or someone you know is serving a federal prison sentence or is facing pending federal criminal charges, they should consult with an experienced criminal defense attorney to determine whether and when they may see some benefit from the First Step Act. Folks should also be aware that if you cannot afford an attorney, the Federal Public Defender’s Office in Oregon may be able to assist you.
The Act was signed into law by President Trump on December 21, 2018. It makes a number of changes to federal criminal sentencing laws. Some of these changes went into effect upon the signing of the Act. Other provisions have not yet gone into effect. A more detailed introduction to the Act can be found here.
Changes to Good Time and Earned Time Credits
Clients facing or serving a federal prison-sentence are now eligible to receive up to 54 days off each year of a federal sentence for good behavior – up from 47 days previously. While it appears this change was meant to go into effect immediately, the law as written indicates it will not go into effect for up to seven months after the signing date of December 21, 2018. This change in the amount of good-time which an inmate can earn will be applied retroactively. Prisoners currently serving a sentence will be able to apply the additional 7 days of eligibility-per-year to time they have already served.
Earned time credits are a new feature of federal prison sentences created by the Act. Certain inmates will be eligible to earn up to 15 days of “earned-time” for every 30 days of completed inmate programs or productive activity. These “earned” days do not reduce the time an inmate serves, rather they allow for the inmate to transition from prison into community corrections-based institutions (for example a halfway house) sooner than they otherwise would have before the Act. These earned-time provisions are not yet in effect. The Bureau of Prisons has 7 months from Dec 21, 2018 to implement these rules. As an initial matter, many inmates will not qualify for earned time because of their crime of conviction, their institutional risk score, or their immigration status.
The First Step Act also makes the following changes to 5 federal sentencing schemes:
- It expands the eligibility for “Safety-Valve” relief from mandatory minimum sentences. Prior to the Act only people with no criminal history or 1 criminal history point could receive relief from a mandatory minimum sentence. Under the Act clients with up to 4 criminal history points may now be eligible for relief.
- The reductions in Crack cocaine sentences in the 2010 Fair Sentencing Act now apply retroactively so that folks convicted of crack-cocaine crimes before the Fair Sentencing Act was passed may now petition the court for a sentence-reduction.
- The federal “three strikes” law was changed. The mandatory life sentence for a third drug offense has been reduced to a 25 year mandatory minimum sentence. The new law now applies to both certain drug offenses and crimes of violence.
- The 20 year mandatory minimum sentence for certain second-time drug offenses has been reduced to 15 years. The new law now applies to both certain drug offenses and crimes of violence.
- The 25 year mandatory minimum sentences for certain repeat firearms offenses will now only apply after a defendant has first been convicted and then served a qualifying sentence. Prior to the Act’s passage this minimum sentence could be imposed based on multiple convictions in the same proceeding.
The FSA also expands access to and makes it easier for inmates serving a federal penitentiary sentence to apply for compassionate release based on age and/or illness.
The FSA marks a dramatic and unexpected move forward in federal sentencing reforms. It is a new and complex piece of legislation and there are many questions remaining about when and how it will be implemented. There are also procedural hurdles to seeking some forms of relief authorized by the law. As a preliminary matter folks who are currently serving a federal prison sentence should reach out to the attorney who represented them in the trial court of conviction. If you are currently facing federal criminal charges be sure to address with your current lawyer how the FSA might apply to your case moving forward. If you do not have a lawyer currently representing you, and you have questions about how the FSA might apply to you feel free to give me a call, or reach out to any competent federal criminal defense attorney in your area.