The First Step Act and Texas Criminal Defense in 2019: Part 2 of 2

What Texas Criminal Defense Lawyers – and Their Clients – Need to Know About the New Federal Sentencing Reforms

In our previous discussion of the First Step Act (“FSA”), we discussed various ways this new legislation, effective on December 21, 2018, changes the federal sentencing laws as well as aspects of the federal prison system.  See, “THE FIRST STEP ACT AND TEXAS CRIMINAL DEFENSE IN 2019: PART 1 OF 2.”

For anyone sentenced in federal court after December 21, 2018, not to have the First Step Act sentencing reforms applied to their sentence will result in an automatic basis for appealing that sentence.

The full text of the First Step Act of 2018 is available online in pdf format.

In this second part of our discussion of the new First Step Act, we discuss the two forms of time credits now available to those incarcerated in the federal prison system, and those sentenced for federal crimes in the future.

First Step Act Sentencing Reform: Two Types of Time Credits

Under the new First Step Act, there are two types of “time credits” offered to those incarcerated in the federal prison system.  They are (1) good time credits and (2) earned time credits.

What are Good Time Credits?

Good time credits are not new; most have heard about the ability of prisoners to get some reward in a reduced sentence for acting cooperatively while incarcerated.  See, Larkin Jr, Paul J. “Clemency, Parole, Good-Time Credits, and Crowded Prisons: Reconsidering Early Release.” Geo. JL & Pub. Pol’y 11 (2013): 1.

Today, good time credits are available to almost every federal prisoner serving one year or more as the “term of imprisonment” defined at their sentencing. It is only those serving a life sentence who cannot obtain good time credits.  See 18 U.S.C. §3624(b).

Good Behavior

Good time credits can be gained by the federal prisoner who demonstrates “good behavior” while he or she is behind bars.  The statute defines good behavior as “exemplary compliance with institutional disciplinary regulations.”

Good time credits are important for the federal prisoner because they can be used to deduct from their total sentence.  Good time credits work to allow the prisoner to be freed earlier.

Good time calculations for all prisoners in prisons run by the federal government (Bureau of Prisons) are handled out of Grand Prairie, Texas, at the federal Designation and Sentencing Computation Center.  For private prisons (with one exception), “good behavior” and credit calculations are performed at the private facility

From 18 U.S.C. §3624(b):

… a prisoner who is serving a term of imprisonment of more than 1 year other than a term of imprisonment for the duration of the prisoner’s life, may receive credit toward the service of the prisoner’s sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner’s term of imprisonment, beginning at the end of the first year of the term, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations.

First Step Act and Good Time Credits: 54 Days per Year

Under the First Step Act, the federal prisoner is able to get more time off their sentence based upon their good behavior.

The Act increases the good time credit to a maximum of 54 days per year of the imposed sentence.  (Before the First Step Act, the maximum was 47 days.)

Effective Date for Increased Good Time Credits

The new First Step Act increase in Good Time Credits will go into effect as soon as the Justice Department releases its revised Risk Assessment Tool (which the Act mandates must be released to the public no later than seven months after its December 21, 2018, effective date).  (This new Risk Assessment Tool is discussed below.)

Efforts are currently underway to try and get the increased number of good time credits available to prisoners as soon as possible.  See, e.g., “The First Step Act’s first steps are stalled,” written by Beryl Lipton and published by MuckRock on January 22, 2019.

What are Earned Time Credits?

The First Step Act creates a second time of time credit for federal prisoners, called the “earned time credit.”  These time credits can be earned by the prisoner doing more than demonstrating “good behavior” under the good time credit system.

Here, the prisoner proactively participates in what the First Step Act calls “productive activities” or “programs” which result in “productive activities rewards.”

Earned Time Credits versus Good Time Credits

There is a key difference between the two types of time credits now available to federal prisoners: good time credits will reduce the real time of a prisoner’s sentence.

The earned time credits do not.  Earned Time Credits do not reduce federal prison sentences.

Earned time credits, instead of reducing a prisoner’s sentence, allow up to 15 days of credit for every 30 days of programing or productive activities, which can be used for early transfer to a halfway house, home confinement, or supervised release.

This means that earned time credits work to move the prisoner out of the federal prison facility and closer to freedom by placing the prisoner in an interim residential situation.  Earned time credits help in giving hope to prisoners that they will be able to be out among the public in some fashion, while good time credits work to reduce the amount of their actual sentence.

Many Prisoners Not Eligible for Earned Time Credits

The First Step Act excludes a great many prisoners from the ability to earn this new type of time credit. A great many prisoners will not be able to earn these kinds of time credits according to the First Step Act.

First of all, non-citizens detained by immigration are not eligible.  Secondly, a great many convictions for federal crimes exclude the prisoner from earned time credits (18 USC 3632(D)), listed in the First Step Act as:

“(i) Section 32, relating to destruction of aircraft or aircraft facilities.

“(ii) Section 33, relating to destruction of motor vehicles or motor vehicle facilities.

“(iii) Section 36, relating to drive-by shootings.

“(iv) Section 81, relating to arson within special maritime and territorial jurisdiction.

“(v) Section 111(b), relating to assaulting, resisting, or impeding certain officers or employees using a deadly or dangerous weapon or inflicting bodily injury.

“(vi) Paragraph (1), (7), or (8) of section 113(a), relating to assault with intent to commit murder, assault resulting in substantial bodily injury to a spouse or intimate partner, a dating partner, or an individual who has not attained the age of 16 years, or assault of a spouse, intimate partner, or dating partner by strangling, suffocating, or attempting to strangle or suffocate.

“(vii) Section 115, relating to influencing, impeding, or retaliating against a Federal official by injuring a family member, except for a threat made in violation of that section.

“(viii) Section 116, relating to female genital mutilation.

“(ix) Section 117, relating to domestic assault by a habitual offender.

“(x) Any section of chapter 10, relating to biological weapons.

“(xi) Any section of chapter 11B, relating to chemical weapons.

“(xii) Section 351, relating to Congressional, Cabinet, and Supreme Court assassination, kidnapping, and assault.

“(xiii) Section 521, relating to criminal street gangs.

“(xiv) Section 751, relating to prisoners in custody of an institution or officer.

“(xv) Section 793, relating to gathering, transmitting, or losing defense information.

“(xvi) Section 794, relating to gathering or delivering defense information to aid a foreign government.

“(xvii) Any section of chapter 39, relating to explosives and other dangerous articles, except for section 836 (relating to the transportation of fireworks into a State prohibiting sale or use).

“(xviii) Section 842(p), relating to distribution of information relating to explosives, destructive devices, and weapons of mass destruction, but only if the conviction involved a weapon of mass destruction (as defined in section 2332a(c)).

“(xix) Subsection (f)(3), (h), or (i) of section 844, relating to the use of fire or an explosive.

“(xx) Section 871, relating to threats against the President and successors to the Presidency.

“(xxi) Section 879, relating to threats against former Presidents and certain other persons.

“(xxii) Section 924(c), relating to unlawful possession or use of a firearm during and in relation to any crime of violence or drug trafficking crime.

“(xxiii) Section 1030(a)(1), relating to fraud and related activity in connection with computers.

“(xxiv) Section 1091, relating to genocide.

“(xxv) Any section of chapter 51, relating to homicide, except for section 1112 (relating to manslaughter), 1113 (relating to attempt to commit murder or manslaughter, but only if the conviction was for an attempt to commit manslaughter), 1115 (relating to misconduct or neglect of ship officers), or 1122 (relating to protection against the human immunodeficiency virus).

“(xxvi) Any section of chapter 55, relating to kidnapping.

“(xxvii) Any offense under chapter 77, relating to peonage, slavery, and trafficking in persons, except for sections 1593 through 1596.

“(xxviii) Section 1751, relating to Presidential and Presidential staff assassination, kidnapping, and assault.

“(xxix) Section 1791, relating to providing or possessing contraband in prison.

“(xxx) Section 1792, relating to mutiny and riots.

“(xxxi) Section 1841(a)(2)(C), relating to intentionally killing or attempting to kill an unborn child.

“(xxxii) Section 1992, relating to terrorist attacks and other violence against railroad carriers and against mass transportation systems on land, on water, or through the air.

“(xxxiii) Section 2113(e), relating to bank robbery resulting in death.

“(xxxiv) Section 2118(c), relating to robberies and burglaries involving controlled substances resulting in assault, putting in jeopardy the life of any person by the use of a dangerous weapon or device, or death.

“(xxxv) Section 2119, relating to taking a motor vehicle (commonly referred to as ‘carjacking’).

“(xxxvi) Any section of chapter 105, relating to sabotage, except for section 2152.

“(xxxvii) Any section of chapter 109A, relating to sexual abuse.

“(xxxviii) Section 2250, relating to failure to register as a sex offender.

“(xxxix) Section 2251, relating to the sexual exploitation of children.

“(xl) Section 2251A, relating to the selling or buying of children.

“(xli) Section 2252, relating to certain activities relating to material involving the sexual exploitation of minors.

“(xlii) Section 2252A, relating to certain activities involving material constituting or containing child pornography.

“(xliii) Section 2260, relating to the production of sexually explicit depictions of a minor for importation into the United States.

“(xliv) Section 2283, relating to the transportation of explosive, biological, chemical, or radioactive or nuclear materials.

“(xlv) Section 2284, relating to the transportation of terrorists.

“(xlvi) Section 2291, relating to the destruction of a vessel or maritime facility, but only if the conduct that led to the conviction involved a substantial risk of death or serious bodily injury.

“(xlvii) Any section of chapter 113B, relating to terrorism.

“(xlviii) Section 2340A, relating to torture.

“(xlix) Section 2381, relating to treason.

“(l) Section 2442, relating to the recruitment or use of child soldiers.

“(li) An offense described in section 3559(c)(2)(F), for which the offender was sentenced to a term of imprisonment of more than 1 year, if the offender has a previous conviction, for which the offender served a term of imprisonment of more than 1 year, for a Federal or State offense, by whatever designation and wherever committed, consisting of murder (as described in section 1111), voluntary manslaughter (as described in section 1112), assault with intent to commit murder (as described in section 113(a)), aggravated sexual abuse and sexual abuse (as described in sections 2241 and 2242), abusive sexual contact (as described in sections 2244(a)(1) and (a)(2)), kidnapping (as described in chapter 55), carjacking (as described in section 2119), arson (as described in section 844(f)(3), (h), or (i)), or terrorism (as described in chapter 113B).

“(lii) Section 57(b) of the Atomic Energy Act of 1954 (42 U.S.C. 2077(b)), relating to the engagement or participation in the development or production of special nuclear material.

“(liii) Section 92 of the Atomic Energy Act of 1954 (42 U.S.C. 2122), relating to prohibitions governing atomic weapons.

“(liv) Section 101 of the Atomic Energy Act of 1954 (42 U.S.C. 2131), relating to the atomic energy license requirement.

“(lv) Section 224 or 225 of the Atomic Energy Act of 1954 (42 U.S.C. 2274, 2275), relating to the communication or receipt of restricted data.

“(lvi) Section 236 of the Atomic Energy Act of 1954 (42 U.S.C. 2284), relating to the sabotage of nuclear facilities or fuel.

“(lvii) Section 60123(b) of title 49, relating to damaging or destroying a pipeline facility, but only if the conduct which led to the conviction involved a substantial risk of death or serious bodily injury.

“(lviii) Section 401(a) of the Controlled Substances Act (21 U.S.C. 841), relating to manufacturing or distributing a controlled substance in the case of a conviction for an offense described in subparagraph (A), (B), or (C) of subsection (b)(1) of that section for which death or serious bodily injury resulted from the use of such substance.

“(lix) Section 276(a) of the Immigration and Nationality Act (8 U.S.C. 1326), relating to the reentry of a removed alien, but only if the alien is described in paragraph (1) or (2) of subsection (b) of that section.

“(lx) Section 277 of the Immigration and Nationality Act (8 U.S.C. 1327), relating to aiding or assisting certain aliens to enter the United States.

“(lxi) Section 278 of the Immigration and Nationality Act (8 U.S.C. 1328), relating to the importation of an alien into the United States for an immoral purpose.

“(lxii) Any section of the Export Administration Act of 1979 (50 U.S.C. 4611 et seq.)

“(lxiii) Section 206 of the International Emergency Economic Powers Act (50 U.S.C. 1705).

“(lxiv) Section 601 of the National Security Act of 1947 (50 U.S.C. 3121), relating to the protection of identities of certain United States undercover intelligence officers, agents, informants, and sources.

“(lxv) Subparagraph (A)(i) or (B)(i) of section 401(b)(1) of the Controlled Substances Act (21 U.S.C. 841(b)(1)) or paragraph (1)(A) or (2)(A) of section 1010(b) of the Controlled Substances Import and Export Act (21 U.S.C. 960(b)), relating to manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, dispense, or knowingly importing or exporting, a mixture or substance containing a detectable amount of heroin if the sentencing court finds that the offender was an organizer, leader, manager, or supervisor of others in the offense, as determined under the guidelines promulgated by the United States Sentencing Commission.

“(lxvi) Subparagraph (A)(vi) or (B)(vi) of section 401(b)(1) of the Controlled Substances Act (21 U.S.C. 841(b)(1)) or paragraph (1)(F) or (2)(F) of section 1010(b) of the Controlled Substances Import and Export Act (21 U.S.C. 960(b)), relating to manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense, a mixture or substance containing a detectable amount of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide, or any analogue thereof.

“(lxvii) Subparagraph (A)(viii) or (B)(viii) of section 401(b)(1) of the Controlled Substances Act (21 U.S.C. 841(b)(1)) or paragraph (1)(H) or (2)(H) of section 1010(b) the Controlled Substances Import and Export Act (21 U.S.C. 960(b)), relating to manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense, or knowingly importing or exporting, a mixture of substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers, if the sentencing court finds that the offender was an organizer, leader, manager, or supervisor of others in the offense, as determined under the guidelines promulgated by the United States Sentencing Commission.

“(lxviii) Subparagraph (A) or (B) of section 401(b)(1) of the Controlled Substances Act (21 U.S.C. 841(b)(1)) or paragraph (1) or (2) of section 1010(b) of the Controlled Substances Import and Export Act (21 U.S.C. 960(b)), relating to manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense, a controlled substance, or knowingly importing or exporting a controlled substance, if the sentencing court finds that—

“(I) the offense involved a mixture or substance containing a detectable amount of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide, or any analogue thereof; and

“(II) the offender was an organizer, leader, manager, or supervisor of others in the offense, as determined under the guidelines promulgated by the United States Sentencing Commission.

How Are Those Sentenced for These Crimes Helped by the First Step Act?

These prisoners can participate in the Earned Time Credits programs; however, they cannot get any time credits as a result of their participation.   Other incentives are available to them.

Other Incentives than Earned Time Credits

For those prisoners who are not eligible for Earned Time Credits, they may be able to get other kinds of benefits by choosing to participate in these programs.  The First Step Act offers them things like more visitation with family and friends, as well as more phone and email time, and expanded options at the commissary.

As for the particular prisoner, the warden for their particular facility will be responsible for deciding their alternative incentives for participation in the Earned Time Credit programs.

Programs for Earned Time Credits

Not everything will qualify as an acceptable activity under the First Step Act.  The Earned Time Credit programs must demonstrate by empirical evidence that they are effective in reducing the likelihood of the prisoner returning to prison (they “reduce recidivism”).  18 U.S.C. 3635(3)

Officially, they must be vetted.  These Earned Time Credit Productive Activities are defined as follows:

“a group or individual activity that is designed to allow prisoners determined as having a minimum or low risk of recidivating to remain productive and thereby maintain a minimum or low risk of recidivating and may include the delivery of the programs … to other prisoners.”  18 U.S.C. 3635(5)

Under the First Step Act, these Productive Activity Programs are called “Evidence-Based Recidivism Reduction Programs,” and include:

1. social learning and communication, interpersonal, anti-bullying, rejection response, and other life skills;

2. family relationship building, structured parent-child interaction, and parenting skills;

3. classes on morals or ethics;

4. academic classes;

5. cognitive behavioral treatment;

6. mentoring;

7. substance abuse treatment;

8. vocational training;

9. faith-based classes or services;

10. civic engagement and reintegrative community services;

11. a prison job, including through a prison work program;

12. victim impact classes or other restorative justice programs; and

13. trauma counseling and trauma-informed support programs.

Effective Date for Earned Time Credits

It will take time to get this show on the road.  First of all, just like with Good Time Credits, the First Step Act allows the Department of Justice to have seven months (210 days) to finalize and circulate its Risk Assessment Tool to be used in approving the new Earned Time Credits for federal prisoners.

Once published, the Bureau of Prisons then has six months (180 days) to apply the Risk Assessment Tool to every federal prisoner.

The Bureau of Prisons is given two years to create more Productive Activities so every eligible federal prisoner can have the opportunity to participate.

What is the Risk Assessment Tool?

The First Step Act requires the Department of Justice to form an Independent Review Committee entrusted with the task of creating a new “risk assessment tool” to be used in determining the likelihood that the prisoner will commit crimes in the future.  18 USC Section 107.

The First Step Act defines its “Risk and Needs Assessment Tool” as “an objective and statistically validated method through which information is collected and evaluated to determine” (A) as part of the intake process, the risk that a prisoner will recidivate upon release from prison; (B) the recidivism reduction programs that will best minimize the risk that the prisoner will recidivate upon release from prison; and (C) the periodic reassessment of risk that a prisoner will recidivate upon release from prison….”

One major hurdle in getting the new Earned Time Credits implemented under the First Step Act is the Act’s requirement that this new committee be formed and that it finalize this revised Tool for figuring out the risk each prisoner faces for committing future crimes. 

How Long Will This Take?

The First Step Act envisions a two-year implementation period, where the Earned Time Credits program gets up and running.  As things move forward, federal prisoners who are closest to the end of their sentence will get priority in participating in the available Programs and Productive Activities.

Once things are running smoothly (after these first two years), then federal prisoners who are considered either medium or high risk will have priority to participate in Programs (like a prison work program) and low and minimum risk prisoners will have priority to participate in Productive Activities (like building a stronger parent-child bond).

If you have specific questions or concerns, feel free to contact Michael Lowe to discuss issues dealing with federal sentencing and the new First Step Act.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Federal Sentencing Guidelines on Federal Child Pornography cases.”