December 17, 2018

S.756, Legislative Vehicle for First Step Act of 2018

Noteworthy

Background: The House of Representatives passed a bipartisan recidivism reduction bill, the FIRST STEP Act, H.R.5682, on May 23, 2018, by a 360-59 vote. That bill did not have a sentencing reform component. A companion bill was introduced in the Senate on May 7, 2018, by Senator Cornyn.

A separate bipartisan bill, the First Step Act, S.3649, was introduced in the Senate on November 15. It includes an amended version of the recidivism reduction aspect of the bill, as well as a sentencing reform component. A revised bill text was released on December 12. This legislative notice covers the revised bill text.

Floor Situation: The Senate will likely vote sometime this week on the revised First Step Act. It will be inserted as an amendment to S.756.

Executive Summary: The First Step Act aims to reduce recidivism by allowing low- or minimum-risk prisoners to earn time credits toward earlier transfer to prerelease custody such as a halfway house if they participate in certain recidivism-reducing programs while in prison. Prisoners guilty of some categories of offenses are automatically disqualified from this option. The bill also contains sentencing reforms that, among other things, reduce the enhanced mandatory minimum sentences for repeated drug-related offenses, while expanding the application of mandatory minimum sentences to include violent felons.

Notable Bill Provisions

Title I – Recidivism Reduction

Requires the attorney general to review the Bureau of Prisons’ existing risk assessment system and develop a new system in consultation with a new Independent Review Committee. The new system will determine the recidivism risk of each new prisoner – minimum, low, medium, or high – assess the nature of their previous offenses, determine appropriate prison programming assignments, and determine when the prisoner can be transferred into prerelease custody or supervised release.

Requires that the new system also provide incentives and rewards such as increased phone and visitation privileges to prisoners who participate in recidivism-reducing programs.

Allows prisoners to earn 10 days of time credit for every 30 days they participate in recidivism-reducing programs. Minimum- or low-risk prisoners can receive an additional five days of credits.

Excludes prisoners from earning time credits if they are serving sentences for conviction of certain offenses, including: murder; terrorism; sexual exploitation of children; smuggling aliens into the U.S. with records of aggravated felonies; importing aliens for prostitution; assault of a law enforcement officer with a deadly weapon; domestic assault by a habitual offender; heroin or methamphetamine traffickers who are organizers, leaders, managers, and supervisors of the offense; and all fentanyl traffickers.

Specifies that faith groups can operate in prisons and offer recidivism-reduction programs for prisoners to earn time credits.

Title II – Bureau of Prisons Secure Firearms Storage

Requires the director of the BOP to ensure that every federal prison has a secure storage area for employees to store firearms and allow employees to carry concealed firearms on the premises of federal prisons outside of the secure perimeter.

Title III – Restraints on Pregnant Prisoners Prohibited

Prohibits the use of restraints on pregnant prisoners in federal prisons. Exceptions are made in case of immediate flight risk; if the prisoner poses an immediate and serious threat of harm to herself or others; or if a health care professional determines restraints to be appropriate for the medical safety of the prisoner.

Title IV – Sentencing Reform

Reduces enhanced mandatory minimums for new cases involving prior drug felons. The three-strike mandatory penalty is reduced from life imprisonment to 25 years. The 20-year mandatory minimum for a second offense is reduced to 15 years.

Limits qualifying prior convictions to serious drug felonies occurring within 15 years and expands qualifying prior convictions to include serious violent felonies.

Broadens the “safety valve” allowing sentencing courts to consider a sentence below the statutory minimum for some non-violent, low-level drug offenders. Allows offenders to be considered under the safety valve with up to four criminal history points, excluding all one-point offenses, which are generally minor misdemeanors. Offenders with prior three-point felonies, which have sentences exceeding one year and one month, or two-point felonies, with sentences of 60 days or more, will not be eligible for the safety valve. Offenders must fully cooperate with law enforcement to be eligible for relief under the safety valve.

Clarifies that enhanced mandatory minimum sentences for use of a firearm during a crime of violence or a drug crime is limited to offenders who have been previously convicted and served a sentence for such an offense.

Allows prisoners to petition sentencing courts for a reduction in sentence consistent with the Fair Sentencing Act of 2010, which reduced the disparity in sentencing between convictions involving crack and powder cocaine.

Title V – Miscellaneous Criminal Justice

Directs BOP to place prisoners in facilities as close as practicable to their primary residence. Prohibits transferring higher-security designated prisoners to lower-security prisoners as a result of the bill.

Requires BOP to place prisoners with lower risk levels on home confinement to the maximum extent possible.

Authorizes new markets for federal prison industries products and requires a GAO report on federal prison industries workplace conditions and products.

Mandates that BOP submit a report to Congress on the current pilot program to treat heroin and opioid abuse through medication-assisted treatment.

Establishes a statistical and demographic data reporting requirement for BOP.

Restricts the use of juvenile solitary confinement for any reason other than as a temporary response to behavior that poses a serious and immediate risk of physical harm. Establishes maximum periods of solitary confinement for juveniles of three hours if they pose a serious and immediate risk of physical harm to others and 30 minutes if the juvenile only poses a risk to himself or herself.

Administration Position

A Statement of Administration Policy on the new bill text is not available at this time. President Trump issued a statement of support for the earlier version of the First Step Act on November 14, 2018. He also tweeted in support of the earlier bill text on December 7.

Cost

CBO estimates the First Step Act would cost $352 million over 10 years, primarily as a result of former prisoners becoming eligible for federal programs such as Medicare, Medicaid, and Social Security upon their release. However, CBO did not complete its estimate of the effect of the bill on spending subject to appropriation. CBO did score related legislation (S.1917 and H.R.5682, respectively) and found $387 million and $342 million in decreased spending subject to appropriation.