The First Step Act, passed last December, has as one of its main focuses the reduction of the current federal prison population. That reduction can be accomplished in a number of ways. This blog will cover 4 main ways, under the First Step Act, for an inmate to obtain early release or additional community custody (home detention or halfway house), as follows:
- Reduction in sentence,
- Credit for completion of a recidivism reducing program,
- Compassionate release, or
- Elderly offender pilot program.
1. Motion for a Reduced Sentence
The first way to obtain an early release is by making a motion to the court directly for an early release. The First Step Act’s provision that incorporates the Fair Sentencing Act allows an inmate, the Federal Bureau of Prisons (BOP) Director, the prosecution, or the sentencing court itself to make a motion to reduce an inmate’s sentence. The grounds for the motion would be that the inmate’s offense is covered under the Fair Sentencing Act of 2010.
The inmates covered by the Fair Sentencing Act include those convicted under the following drug offense statutes:
- 21 U.S.C. § 841(b)(1)(A),
- 21 U.S.C. § 841(b)(1)(B),
- 21 U.S.C. § 960(b)(1), and
- 21 U.S.C. § 960(b)(2)
An important aspect of the First Step Act is that it finally cures an injustice that had persisted for years. The sentencing disparity between offenses involving crack cocaine compared to powder cocaine had the effect of imposing longer sentences on African-American defendants compared to defendants of other races.
The Fair Sentencing Act of 2010 remedied that problem only part of the way. The Fair Sentencing Act removed the disparity between crack and powder cocaine, but did not make the law’s effect retroactive for those who had already convicted under the old laws.
Fortunately, the First Step Act fixes that problem. Specifically, the First Step Act made the Fair Sentencing Act of 2010 retroactive. Therefore, inmates whose offense was committed prior to August 3, 2010 may now be eligible for a sentence reduction as if the Fair Sentencing Act was in effect at the time they committed their offense.
2. Credits for Recidivism Reduction Programs
If inmates participate in evidence-based recidivism reducing programs or productive activities, then it is possible for them to earn time credits. The requirements to make an inmate eligible for these time credits, are that the inmate:
- Was convicted of a federal offense; and
- Was not convicted of a disqualifying offense (which includes certain immigration offenses, offenses involving destruction of aircraft and motor vehicles, drive-by shootings, female genital mutilation, and a list of other offenses listed in a BOP table – Click here to see the table).
Time credits can be applied to put an inmate in pre-release custody in the community or on supervised release, if the inmate was assessed to have a minimum or low recidivism risk. Those inmates with a high or medium recidivism risk can be considered for time credits if the Warden makes a determination that the inmate (i) does not pose a risk to the community, (ii) is unlikely to commit another crime, and (iii) participated in recidivism reduction programs or productive activities.
Notably, under the First Step Act, “faith-based classes or services” that otherwise meet the criteria for evidence-based recidivism reduction programming will qualify for time credits. The classes or services simply must be approved by the BOP in the same way that non-faith-based programs are approved.
3. Compassionate Release
Also known as a Reduction in Sentence (RIS), a compassionate release is based on extraordinary or compelling circumstances such as a diagnosis of a terminal illness, debilitation, or other criteria. Specifically, if an inmate is eligible due to compelling circumstances, then he or she can apply for compassionate release consideration by making a request to his or her Unit Team. The request will be reviewed by the Warden, and finally the BOP Director to decide whether the request is appropriate and should be approved.
The First Step Act is significant with regard to the Reduction in sentence option because, prior to the passage of the First Step Act, inmates could not make a request for a compassionate release to a sentencing court. It had to go through the BOP. The First Step Act, however, allows an inmate can file a motion for compassionate release directly with the sentencing court. The inmate must wait 30 days after making a request to the BOP before making a motion.
With regard to the factors that a Warden, the BOP, or a sentencing judge, would consider for a compassionate release, some factors are the nature and circumstances of inmate’s offense, the inmate’s criminal history, the comments from the inmate’s victims, and the number of supervised release violations.
4. Elderly Offender Pilot Program
Fourth and finally, an inmate may request for an early release by participating in the Elderly Offender Pilot program. Generally, under the pilot program, if an inmate has served two-thirds of his or her term of imprisonment and is of a certain age (typically over 65 years old), then he or she can request for an early release under the Elderly Offender Pilot.
The First Step Act is, as noted, focused on reducing the federal prison population, largely to turn the tide of mass incarceration that has been the norm in this country for decades. The four avenues for early release discussed above are good ways in which to see if early release is an option.