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October 18, 2020

Some FIRST STEP Act basics and thoughts about possible next steps

The FIRST STEP Act, which is fully titled the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, was signed by Prez Trump into law on Dec. 21, 2018.  Many have rightly called this law the biggest federal criminal justice reform legislation in a generation, and yet others have rightly called this law a relatively small modification to the federal criminal justice system.  Among the good questions we will explore in class is whether the FIRST STEP Act is a very big deal or much ado about very little.

Because lots of disparate provisions got rolled into the FIRST STEP Act with lots of different mandates or changes for lots of different parts of the system, it is hard to readily summarize all the Act's many elements or to effectively track its overall impact. The Congressional Research Service has produced this intricate 20-page overview of Act, which is initially summarized this way:

The act has three major components: (1) correctional reform via the establishment of a risk and needs assessment system at the Bureau of Prisons (BOP), (2) sentencing reform via changes to penalties for some federal offenses, and (3) the reauthorization of the Second Chance Act of 2007 (P.L. 110-199). The act also contains a series of other criminal justice-related provisions.

As is true for many legislative reforms, the impact of the FIRST STEP Act is being shaped by many "whos" other than Congress.  How the US Sentencing Commission, the US Department of Justice and courts implement and respond to new sentencing law can often matter as much or more than statutory particulars.  One persistent question for advocates of major federal sentencing reforms is whether to now seek to amplify the impact of FIRST STEP Act by focusing on other "whos" or to pursue additional statutory reforms from Congress.  What advice might you give on this "who" front to the director of a new criminal justice group?  Do you think your advice on this front could change after Election Day?  

Though the FIRST STEP Act is now nearly two years old, we are now only starting to get a sense of its impact.  Helpfully, US Sentencing Commission a few months ago produced this big intricate data report (and this infographic) detailing the impact of the FIRST STEP Act over the period it calls “First Step Year One” running from Dec 21, 2018 to Dec. 20, 2019.  Importantly, this document only examines key sentencing provisions and not all the bigger prison reforms and various other elements of the First Step Act.  Helpfully, the federal Bureau of Prisons and the National Institute of Justice have useful webpages about the FIRST STEP Act focused on the work these agencies are doing under the Act that are focused more on the prison-reform piece of the FIRST STEP equation.

The COVID pandemic, which has impacted federal criminal justice enforcement in many ways known and unknown, has made certain provisions of the FIRST STEP Act especially important (e.g., the new "compassionate release" rules) and other provisions harder to implement (e.g., the prison programming plans).  Especially because of the extra COVID complications, if you are interested in really digging into any aspect of the FIRST STEP Act (for mini-paper 5 or for any other reason), I would urge you to consider focusing on just one particular provision and maybe even just one "who" working to apply or implement that provision. 

As I mentioned in class, both Prez Trump and former VP Biden has spoken about there interest in supporting additional sentencing reforms in Congress.  We will be sure to talk in class about what kinds of reforms you would be eager to champion if (and when?) Congress turns back to sentencing reform in the (near?) future.

October 18, 2020 in Guideline sentencing systems, Who decides | Permalink


I think both opinions about the FIRST STEP Act are accurate: it is big criminal justice reform at the federal level and a small step in reform. But, there has not been a lot of federal criminal justice reform lately, so a small step can be big here. It'd be nice to also start seeing more of this at the state level of all states.

I like the Act's focus on decreasing recidivism, although I would be curious to know what the "evidence-based recidivism reduction programs" actually are. I am not sure who exactly the "who" for this would be, but I do think there should also be some focus on avoiding incarceration in the first place, maybe through programs in at-risk communities. This could also be done with decreasing further what drug crimes are eligible for incarceration. I think addressing the factors that cause people to end up interacting with the criminal justice system would be a good next step.

Posted by: Amy Pratt | Oct 19, 2020 12:04:55 PM

Seeing Judge Gleeson speak about the compassionate release was the highlight of the First Step panel. I really think allowing the defendants to file the motion themselves is a huge improvement in that area.

Posted by: Christopher Wald | Oct 21, 2020 11:05:10 AM

I have been co-counsel on two successful (and some unsuccessful) compassionate release motions in the COVID era. Simply giving some prisoners new hope, as well as a viable means for seeking a sentencing reduction, is a huge contribution of the FIRST STEP Act.

Posted by: Doug B. | Oct 21, 2020 6:29:15 PM

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