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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowIt’s now been five years since the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person — or FIRST STEP — Act was signed into law.
The law aims to implement wide-ranging federal sentencing reforms, expand good time credits for good behavior, make a strong push for compassionate release and boost rehabilitation efforts.
According to the Federal Bureau of Prisons, Dec. 21, 2023, marked the fifth anniversary of the bill.
The preceding August, The Sentencing Project issued a report — “The First Step Act: Ending Mass Incarceration in Federal Prisons” — that takes a closer look at U.S. Department of Justice data related to the landmark federal legislation.
According to the report, the majority, or 58%, of people released because of the First Step Act were serving time for a drug trafficking offense.
Within that group, 13% have been rearrested or reincarcerated since their release. Comparatively, 57% of people released from state custody for a drug trafficking conviction recidivated within three years.
The report attributes “(a) substantial portion of federal prison growth” to harsh penalties for drug offenses. In 1980, for example, sentences for drug offenses accounted for 47% of the total admissions to federal prisons. By 1991, 86% of new federal sentences were for drug offenses. Also, indeterminate sentencing was replaced with mandatory minimums, three strikes laws and the abolishment of parole.
But with the First Step Act making retroactive the 2010 Fair Sentencing Act — which lowered the disparity in mandatory minimum drug quantity triggers for crack versus powder cocaine offenses — 4,000 people have been given a reduced sentence.
Liz Komar, The Sentencing Project’s sentencing reform counsel, said one of the things that stood out to her in the report was the low recidivism rate of people whose release from prison had been expedited by the First Step Act.
According to the report, among the nearly 30,000 individuals whose release has been expedited, nearly nine in every 10 have not been rearrested or reincarcerated.
Also, Komar said the 12% recidivism rate for First Step beneficiaries stands in contrast to those among the general federal prison population.
“That’s dramatically lower than the normal federal recidivism rates of 45%,” she told Indiana Lawyer.
Rising and falling
The First Step Act allows individuals who present extraordinary and compelling circumstances, such as severe illness and/or old age, and who pose little risk to the community to bring their compassionate release applications directly to a federal judge 30 days after filing a petition with the Bureau of Prisons.
According to the BOP, there have been approximately 4,000 fair sentencing/retroactive sentence reductions, more than 4,600 compassionate releases/reduction in sentences, nearly 1,250 elderly offenders approved for home confinement and 26,621 FSA releases since the First Step Act became law.
Prior to the legislation, The Sentencing Project reported that from 2013 to 2017, the BOP received 5,400 requests for compassionate release and approved only 6%.
“Taking an average of 4.5 months to issue a decision on these applications proved deadly, as 5% of the applicants died while waiting to learn the outcome of their plea,” the report stated.
Further, the U.S. Sentencing Commission found that for individuals granted compassionate release in 2020, reductions in sentences were significant, with an average reduction of nearly five years, or nearly 40% of an individual’s sentence.
Following that rise, the grant rate fell to 12% and 13% in 2021 and 2022, respectively.
Zachary Myers, U.S. attorney for the Southern District of Indiana, said federal prosecutors are always adapting to what’s happening in courthouses and communities, as well as complying with statutory changes enacted by Congress like those within the First Step Act.
With the First Step Act, Myers said his office is supportive of offenders within the federal prison system taking advantage of rehabilitation opportunities so they can be successful when they reenter their communities.
“We’ve definitely seen and continue to see an influx of inmates seeing compassionate release under the guidelines,” Myers said.
Data from the U.S. Sentencing Commission through Fiscal Year 2023’s third quarter showed there were 48 compassionate release motions filed in the Indiana Southern District in that time period, with three granted.
In Indiana’s Northern District, there were 16 motions filed and two granted.
More reform coming?
Even with the legislation, there are still hurdles to obtaining compassionate release.
For example, Komar noted the BOP has a staffing crisis, even after the end of the COVID pandemic, that’s made it harder to implement rehabilitation programs.
She said pay for correctional officers is often low, and the quality and nature of their work makes it hard to recruit new employees.
Also, the fact that many federal prisons are built in remote and rural areas provides an additional challenge to find the workforce needed to adequately staff prison facilities, Komar added.
“The BOP certainly knows that staffing is a problem,” she said.
Still, Komar said the First Step Act represents an important precedent in federal sentencing reforms.
Looking ahead, The Sentencing Project noted in its report that bipartisan groups have urged Congress to build on the provisions of the First Step Act, including by passing the First Step Implementation Act, the Safer Detention Act and the EQUAL Act.
The First Step Implementation Act would make key provisions of the First Step Act retroactive.
It would also extend relief, in the form of shorter mandatory minimum sentences, to people sentenced prior to the First Step Act’s passage. That would provide opportunities for individuals serving lengthy mandatory minimum sentences for certain drug offenses and “stacked” gun offenses to seek a shorter sentence aligned with what they would receive today.
Additionally, the bill would allow courts to consider sentence reductions for people who committed crimes under the age of 18 and who have served at least 20 years behind bars.
Komar said the Safer Detention Act would also expand access for compassionate release and eligibility for the Elderly Home Detention Pilot Program.
Similar to the 2010 Fair Sentencing Act, the EQUAL Act would fully eliminate the federal sentencing disparity between drug offenses involving crack and powder cocaine.
Indiana efforts
Indiana lawmakers have taken their own steps toward compassionate release reform, although those steps so far have not yielded any results.
In 2023, House Bill 1648 would have eased Indiana’s process for the compassionate release of inmates with health issues, according to the Indiana Capital Chronicle.
That bill — authored by Rep. Bob Morris, R-Fort Wayne — passed the Indiana House on an 89-1 vote but never made it out of the Senate Corrections and Criminal Law Committee.
This year, Sen. Rodney Pol, D-Chesterton, authored Senate Bill 291, which would allow certain convicted persons who have a chronic medical condition, or who are terminally ill or gravely disabled, to file a petition for sentence modification without the consent of the prosecuting attorney.
SB 291 has been referred to the Senate Corrections and Criminal Law Committee, which has not scheduled a hearing on the measure.
Sen. Lonnie Randolph, D-East Chicago, declared his support for Pol’s bill in an email to Indiana Lawyer.
Randolph said compassion for fellow human beings should not end at the prison gate.
“DOJ guidance following the federal First Step Act of 2018 allows inmates undergoing extreme circumstances to apply for early parole,” he said. “Senator Pol’s bill mirrors the safety precautions that the First Step Act took while maintaining its core of empathy.
“There’s no reason, in my mind, to shoot this bill down other than an unjustified fear of our citizens.”•
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