Early Release from Prison Under The First Step Act ?

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.  Lets walk through 4 main ways to get early release from prison, under the First Step Act, for an inmate to obtain early release or additional community custody (home detention or halfway house), as follows:

  1. Reduction in sentence,
  2. Credit for completion of a recidivism reducing program,
  3. Compassionate release, or
  4. Elderly offender pilot program.

Option 1 :  Motion for a Reduced Sentence

The first way to obtain an early release from prison 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.

Option 2:  Credits for Recidivism Reduction Programs to get early release from prison.

If inmates participate in evidence-based recidivism reducing programs or productive activities, then it is possible for them to earn time credits to get early release from prison.  The requirements to make an inmate eligible for these time credits, are that the inmate:

  1. Was convicted of a federal offense; and
  2. 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.

Option 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 is another alternative to get early release from prison.  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.

Option 4 :  Elderly Offender Pilot Program to get early release from prison.

Fourth and finally, an inmate may request for an early release from prison is 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.

Conclusion

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.

About Brandon Sample

Brandon Sample is an attorney, author, and criminal justice reform activist. Brandon’s law practice is focused on federal criminal defense, federal appeals, federal post-conviction relief, federal civil rights litigation, federal administrative law, and the Freedom of Information Act (FOIA).

28 Comments

  1. Susan DAlessandro on September 24, 2019 at 6:32 pm

    My son was just sentenced for 922(u) and 924(i). Can you give me an idea of what the best case scenario could look like?

    Thank you

    • Susan DAlessandro on September 24, 2019 at 6:37 pm

      I forgot to mention his sentence is 24 months with the remainder of his probation violation to be served in State when Federal is completed even though the State agreed to let their piece run concurrent the still wanted their total time so the balance will be in state.

      • joseph sanfilippo on October 19, 2020 at 2:04 am

        unfortunately the court would probably drag their feet in responding and take up the 16 momths that he would do on 24 months.

      • Tammy fischer on December 16, 2020 at 12:41 am

        My dad is ill he is dying with liver cancer he only has 2 to 3 weeks to live why cant he get a early release to spend his last remaining days with his family

      • Debbie Autobee on April 15, 2021 at 7:16 am

        My husband was sentenced to 25 years in the year 2005 for bank robbery he is now 65 years old and is in poor health and confined to a wheelchair he also needs back surgery and is suffering with pain.
        He said everyone that he knew in prison has been released from prison what can I do to help him get an early release and on home confinement?

  2. Diane Barnes on October 8, 2019 at 9:09 pm

    Are there a first step act for the 922g

    • Indee on April 6, 2020 at 8:50 pm

      Hi my boyfriend is in prison for 4 years and the parole board members said he wasn’t going to get out till 2021 but he has been in prison 4 6 months now and haven’t got into any trouble can someone please help me understand what’s going on please

    • Rosario Villa on March 1, 2021 at 1:56 am

      My nephew was sentenced 24 months I was wondering if he capable getting released. Sooner during this pandemic Marco Emilio Bocel tdcj 02334989 . I’m requesting RIS for his behalf. You can contact me at 9402288585 or email [email protected]

  3. Irene brock on April 10, 2020 at 12:03 pm

    My husband is in jail waiting indictment from grand jury for murder. I was notified his bail is reduced and they feel he will die if he doesn’t get out and get proper medical care . I can’t afford to get him out and why isn’t he in hospital? What can I do?

  4. Diane Waymoth on April 13, 2020 at 8:40 am

    My son was sentenced and just wanted to know where I go to see if he would qualify for house arrest because of this corona virus going everywhere? If there is something I could do please let me know or if you can help I can give you his id number. Thanks Diane Waymoth

  5. Lawanda on April 16, 2020 at 3:24 pm

    To Whom This May Concern Im Emailing regarding My Fiance Alvarez Norris , He is Incarcerated In Floyd County State Prison He Has No Bad charge its a misdemeanor for fleeding… He has a prior of 7 months remaining. I was hoping he could get a ealry release Due To The Corona Virus… We recently had A new born and also 2 other Children That I Honestly Need Help With on my behalf i will make sure he meets all requirments when released parole etc god bless

  6. Yahaira on April 24, 2020 at 7:41 pm

    Is this only for federal or state court too?

  7. Johnniemae Carrion on May 16, 2020 at 10:48 am

    My brother has been in prison for 18 years for robbery, is it possible he could get out on early release do to this coronavirus situation ?

  8. Jackie Hageberg on May 22, 2020 at 2:41 pm

    I am terminally ill, my son is in prison, I need help, is there any program that could help get early release to care for me?
    Thank you
    J. Hageberg
    [email protected]

  9. DELORES BROWN on May 23, 2020 at 10:52 pm

    My son is housed at the Marion Correctional were their are a estimated number of inmate and staff that have the virus. he doesn’t have it, i’m really concern about this. He had been locked up for over 19 years, and have at least 10 more to do. I would like to know what he might be eligible for to get a early release due to this virus. He’s my only child and I hate to have him die before either one of us see each other again. It been very hard not seeing him in the pass few month which I was during my visit every month. Can you tell me what I can do, or who I can write to. I’m in Michigan and a 70 year old lonely mother, my husband passed 10 years ago.

  10. Malika Abdul-Halim on May 28, 2020 at 10:36 pm

    Assalaamu Alaikum Insha Allah My nephew is in jail, hoping he can get an early release under President Trump First Step Act, That’s why I feel President Trump deserve his prop Allah will Protect President Trump I no he will, don’t you see he is God sent to help those who wish to be helped, Our Governor B. Kemp is just as wise, believe me he’s no fool he’s a wise man leading the way opening up Georgia slowly but surely Allah will guide him safely threw coronavirus pandemic Malika Abdul-Halim salaams

  11. Angelica on June 10, 2020 at 6:30 pm

    My friend was convicted in 2009 can he reopen his case?

  12. Indra Van Slyke on June 21, 2020 at 8:17 pm

    would like to know more about the prison reform program

  13. Marie LuQue on July 28, 2020 at 12:35 pm

    My son, Traver P. Johnson (M22570) has 372 days left at Kewanee Life Reentry Center in Kewanee, Illinois. He has completed all the classes required, and also has 4 different degrees in Associates in General Studies, Associates in Liberal Studies, Associates in Applied Science, Culinary Arts III. He also has a permit for the State of Illinois Department of Public Health, and the Certificate of Completion of Substance Abuse Education. He has worked very hard to accomplish the degrees. He also has been tutoring other inmates to reach the guidelines for their GED. We have a pending commutation case since January of 2020, but haven’t heard the outcome yet. I feel that he is a great candidate for early release. He has been incarcerated since July of 2011. He has done 9 years of his 12 year sentence. He is due for parole on August 4, 2021. We have written a letter to Field Services in Kewanee to have him transferred from Illinois to Arizona where I, Marie LuQue, his mother lives since October of 2011. I need to know what other steps to take. I have sent letters to Illinois Gov. Pritzker and to the Illinois Prison Project for help. I haven’t heard anything from them. Please Help?

  14. candice m Stelloh on September 22, 2020 at 10:28 pm

    my boyfriend in for a dcc hold he only has a year and 6 months to do left for violation he only 22 years old we just found out he has liver problems we were wondering if we can file for compassionate release of if maybe we can try to get him on house arrest to get treatment for his liver before it get’s worsen

  15. ruth derry on September 30, 2020 at 3:30 pm

    my son was sentesed to 7 to 15 years for sexuel acts brought by his dauter eventhough there was nothing done to her just her saying it happened. we had a court appointed attorney he did not do anything to help because he belived my son was guilty. is there anything we could do to ..rr

  16. Melissa on October 22, 2020 at 2:42 am

    Hi I wanted to find out how I can get my husband back in court for possible resentencing . He has served more than half his time . And right now is serving enhancement time . What can be done ?

  17. Chris mays on October 25, 2020 at 2:56 am

    A friend of ours got 80 to 160 8 10 to 21 months for his first time in trouble whT cN I do in North Carolina

  18. Taylor Hansen on November 13, 2020 at 11:00 am

    I never knew that a compassionate release is based on a terminal illness or something similar for an early release from prison. My brother is in prison right now and he has been told that his cancer is back. I wonder if this counts as a compassionate release and if he gets to be freed now.

  19. Angela Lail on December 20, 2020 at 2:49 am

    What about North Carolina??

  20. Amanda Smith on March 8, 2021 at 8:15 pm

    My husband was sentenced to 25 years for drugs in 2014 and all his motions have been denied what should we do?

  21. willie hawkins on March 28, 2021 at 10:25 am

    my is willie hawkins iam on home confinement under the care act iam 69 will be 70 next month i only have 12 month how i get release under the elderly offender pilot

  22. Katurah Taylor on April 13, 2021 at 8:58 am

    is the 924 (c) act under the first step act, along with the concurrent stacking charges

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