Skip to content

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).

3 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.

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

    Are there a first step act for the 922g

Leave a Comment





Recommended for you

First Step Act FAQs: Criminal Justice Reform in Action

On November 14, 2018, criminal justice and prison reform advocates finally heard what they had wanted to hear for almost a year: President Donald Trump is “thrilled to announce his support” for the bipartisan First Step Act criminal justice reform legislation. With President Trump’s support of this legislation the last true obstacle to the First…

First Step Act – August 2018 Update

In May 2018, the U.S. House of Representatives overwhelmingly passed the First Step Act on a bipartisan vote of 360-59. Since then, the First Step Act has been assailed by some on the political right as being “soft on crime,” and on the political left for not going far enough to address unfair sentencing practices. I…

Fair Sentencing Act of 2010: Retroactivity FAQs

With the passage of the First Step Act of 2018, there’s a whole lot of people, both in and out of prison, that have kicked their hustle game into high gear. But this can be very dangerous, particularly when the individual giving “advice” does not know what they are talking about. That is on top…

Scroll To Top