An Overview of the First Step Act

Learn how the First Step Act will affect BOP Inmates and their families.

On December 21, 2018, President Trump signed into law the First Step Act (FSA) of 2018 (P.L. 115- 391). The act was the culmination of a bi-partisan effort to improve criminal justice outcomes, as well as to reduce the size of the federal prison population while also creating mechanisms to maintain public safety.

This page is meant to provide a general overview of how the law will affect BOP inmates and their families. For an expanded and detailed overview, please refer to the following document: https://crsreports.congress.gov/product/pdf/R/R45558

Reduction in Recidivism

The First Step Act requires the Attorney General to develop a risk and needs assessment system to be used by BOP to assess the recidivism risk and criminogenic needs of all federal prisoners and to place prisoners in recidivism reducing programs and productive activities to address their needs and reduce this risk. Under the act, the system is required to provide guidance on the type, amount, and intensity of recidivism reduction programming and productive activities to which each prisoner is assigned, including information on which programs prisoners should participate in based on their criminogenic needs. The system is also required to provide guidance on how to group, to the extent practicable, prisoners with similar risk levels together in recidivism reduction programming and housing assignments.

The act also amends 18 U.S.C. § 4042(a) to require BOP to assist inmates in applying for federal and state benefits and obtain identification, including a social security card, driver's license or other official photo identification, and birth certificate.

The First Step Act also expands the Second Chance Act. The FSA requires BOP to develop guidance for wardens of prisons and community-based facilities to enter into recidivism-reducing partnerships with nonprofit and other private organizations, including faith-based and community-based organizations to deliver recidivism reduction programming.

Incentives For Success

The act amended 18 U.S.C. § 3624(b) so that federal inmates can earn up to 54 days of good time credit for every year of their imposed sentence rather than for every year of their sentenced served. For example, this means that an offender who is sentenced to 10 years in prison and who earns the maximum good time credits each year will earn 540 days of credit.

Eligible inmates can earn time credits towards pre-release custody. Offenses that make inmates ineligible to earn time credits are generally categorized as violent, terrorism, espionage, human trafficking, sex and sexual exploitation, repeat felon in possession of firearm, or high-level drug offenses. For more details refer to the complete list of disqualifying offenses. These inmates can still earn other benefits, as prescribed by BOP, for successfully completing recidivism reduction programming.

Confinement

The act amends 18 U.S.C. § 3621(b) to require BOP to house inmates in facilities as close to their primary residence as possible, and to the extent practicable, within 500 driving miles. BOP will make designation decisions based on a variety of factors, including bedspace availability, the inmates's security designation, the inmates's programmatic needs, the inmates's mental and medical health needs, any request made by the inmate related to faith-based needs, recommendations of the sentencing court, and other security concerns. BOP is also required, subject to these considerations and an inmates's preference for staying at his/her current facility or being transferred, to transfer an inmate to a facility closer to his/her primary residence even if the inmate is currently housed at a facility within 500 driving miles.

The FSA reauthorizes and modifies a pilot program that allows BOP to place certain elderly and terminally ill prisoners on home confinement to serve the remainder of their sentences.

Additionally, inmates who successfully complete recidivism reduction programming and productive activities can earn time credits that will allow them to be placed in prerelease custody (i.e., home confinement or a Residential Reentry Center) earlier than they were previously allowed.

Correctional Reforms

The First Step Act (FSA) includes a series of other criminal justice-related provisions. These provisions include a prohibition on the use of restraints on pregnant inmates in the custody of BOP and the U.S. Marshals Service and a requirement for the BOP to provide tampons and sanitary napkins that meet industry standards to prisoners for free and in a quantity that meets the healthcare needs of each prisoner (Note that BOP policy previously addressed these requirements.)

The FSA requires BOP to provide training to correctional officers and other BOP employees (including those who contract with BOP to house inmates) on how to de-escalate encounters between an officer or employee of BOP and a civilian or an inmate, and how to identify and appropriately respond to incidents that involve people with mental illness or other cognitive deficits.

Also included is a prohibition against the use of solitary confinement for juvenile delinquents in federal custody (BOP does not house juveniles in its facilities but its contracts comply with this aspect of the FSA.)

Sentencing Reforms

Changes to Mandatory Minimums for Certain Drug Offenders
The FSA makes changes to the penalties for some federal offenses. The FSA modifies mandatory minimum sentences for some drug traffickers with prior drug convictions by increasing the threshold for prior convictions that count toward triggering higher mandatory minimums for repeat offenders, reducing the 20-year mandatory minimum (applicable where the offender has one prior qualifying conviction) to a 15-year mandatory minimum, and reducing a life-in-prison mandatory minimum (applicable where the offender has two or more prior qualifying convictions) to a 25-year mandatory minimum.

Retroactivity of the Fair Sentencing Act
The FSA made the provisions of the Fair Sentencing Act of 2010 (P.L. 111-220) retroactive so that currently incarcerated offenders who received longer sentences for possession of crack cocaine than they would have received if sentenced for possession of the same amount of powder cocaine before the enactment of the Fair Sentencing Act can submit a petition in federal court to have their sentences reduced.

Expanding the Safety Valve
The FSA also expands the safety valve provision, which allows courts to sentence low-level, nonviolent drug offenders with minor criminal histories to less than the required mandatory minimum for an offense.

For sentencing reform examples please refer to the guide published by the U.S. Sentencing Commission's Office of Education and Sentencing Practice .

Oversight

The act requires the submission of several reports to review the BOP's implementation of the law and assess the effects of the new risk and needs assessment system.

In carrying out the requirement of the FSA, the Attorney General will consult with an Independent Review Committee (IRC). The Hudson Institute is the nonpartisan and nonprofit organization to host the IRC. Some of the duties the IRC will perform, in assisting the Attorney General, include:

  • Conducting a review of the existing prisoner risk and needs assessment systems in operation on the date of enactment of this Act;
  • Developing recommendations regarding evidence-based recidivism reduction programs and productive activities;
  • Conducting research and data analysis on: evidence-based recidivism reduction programs relating to the use of prisoner risk and needs assessment tools;
  • Advising on the most effective and efficient uses of such programs; and which evidence-based recidivism reduction programs are the most effective at reducing recidivism, and the type, amount, and intensity of programming that most effectively reduces the risk of recidivism;
  • and reviewing and validating the risk and needs assessment system.

Two years after the enactment of the First Step Act, and each year thereafter for the next five years, DOJ will submit reports to Congress on various aspects of the FSA including a report on effective medication assisted treatment of opioid and heroin abuse, including plans on how to implement those treatment methods.

Within two years of BOP implementing the system, and every two years thereafter, the Government Accountability Office will audit how the new risk and needs assessment system system is being used at BOP facilities.