The United States has experienced a corrections explosion over the past 40 years, despite a decrease in serious crime during this same period. Consider statistics s

The First Step Act of 2018: An Overview

March 4, 2019

Congressional Research Service

https://crsreports.congress.gov

R45558

Congressional Research Service

SUMMARY

The First Step Act of 2018: An Overview On December 21, 2018, President Trump signed into law the First Step Act of 2018 (P.L. 115-

391). The act was the culmination of several years of congressional debate about what Congress

might do to reduce the size of the federal prison population while also creating mechanisms to

maintain public safety. This report provides an overview of the provisions of the act.

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.

The First Step Act requires the Department of Justice (DOJ) to develop a risk and needs assessment system to be used by

BOP to assess the recidivism risk of all federal prisoners and to place prisoners in programs and productive activities to

reduce this risk. Prisoners who successfully complete recidivism reduction programming and productive activities can earn

additional 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. The act prohibits prisoners convicted of any one of dozens of

offenses from earning additional time credits, though these prisoners can earn other benefits, such as additional visitation

time, for successfully completing recidivism reduction programming. Offenses that make prisoners ineligible to earn

additional time credits can generally be categorized as violent, terrorism, espionage, human trafficking, sex and sexual

exploitation, repeat felon in possession of firearm, certain fraud, or high-level drug offenses.

The act makes changes to the penalties for some federal offenses. The act modified mandatory minimum prison 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.

The act 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. The act 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. Finally, the act eliminated the stacking provision, which allowed prosecutors to charge offenders with a second

and subsequent use of a firearm in furtherance of a drug trafficking or violent offense in the same criminal incident, which, if

the offender is convicted, carries a 25-year mandatory minimum. Now, the mandatory minimum will only apply when the

offender has a prior conviction for use of a firearm in furtherance of a drug trafficking or violent crime from a previous

criminal prosecution.

The First Step Act contains the Second Chance Reauthorization Act of 2018. This act reauthorizes appropriations for and

expands the scope of some grant programs that were initially authorized under the Second Chance Act of 2007 (P.L. 110-

199). The reauthorized programs include the Adult and Juvenile State and Local Offender Demonstration Program, Grants

for Family-Based Substance Abuse Treatment, Careers Training Demonstration Grants, the Offender Reentry Substance

Abuse and Criminal Justice Collaboration Program, and the Community-Based Mentoring and Transitional Service Grants to

Nonprofit Organizations Program. The act also reauthorized and modified a pilot program that allows BOP to place certain

elderly and terminally ill prisoners on home confinement to serve the remainder of their sentences.

Finally, the First Step Act 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; a change to the way good

time credit is calculated so prisoners can earn 54 days of good time credits for each year of imposed sentence rather than for

each year of time served; a requirement for BOP to provide a way for employees to safely store firearms on BOP grounds; a

requirement for BOP to try to place prisoners within 500 driving miles of their primary residences; authority for the Federal

Prison Industries to sell products to public entities for use in correctional facilities, disaster relief, or emergency response, to

the District of Columbia government, and to nonprofit organizations; a prohibition against the use of solitary confinement for

juvenile delinquents in federal custody; and a requirement that BOP aid prisoners with obtaining identification before they

are released.

R45558

March 4, 2019

Nathan James Analyst in Crime Policy

The First Step Act of 2018: An Overview

Congressional Research Service

Contents

Correctional Reforms ………………………………………………………………………………………………………. 1

Development of the Risk and Needs Assessment System ………………………………………………… 1 Implementation of the Risk and Needs Assessment System …………………………………………….. 4 Incentives and Rewards for Program Participation …………………………………………………………. 4 Earned Time Credits for Program Participation ……………………………………………………………… 5 Prerelease Custody …………………………………………………………………………………………………….. 5 Reporting Requirements ……………………………………………………………………………………………… 7

Department of Justice Report to Congress ……………………………………………………………….. 7 Report from the Independent Review Committee …………………………………………………….. 7 Government Accountability Office Audit ………………………………………………………………… 8

Authorization of Appropriations ………………………………………………………………………………….. 8

Sentencing Reforms ………………………………………………………………………………………………………… 8

Changes to Mandatory Minimums for Certain Drug Offenders ……………………………………….. 8 Expanding the Safety Valve ………………………………………………………………………………………… 9 Eliminating the Stacking Provision ………………………………………………………………………………. 9 Retroactivity of the Fair Sentencing Act ……………………………………………………………………….. 9

Reauthorization of the Second Chance Act ……………………………………………………………………….. 10

Reauthorization of the Adult and Juvenile State and Local Offender Demonstration

Program ……………………………………………………………………………………………………………….. 10 Reauthorization of Grants for Family-Based Substance Abuse Treatment ……………………….. 12 Reauthorization of the Grant Program to Evaluate and Improve Educational Methods

at Prisons, Jails, and Juvenile Facilities ……………………………………………………………………. 12 Reauthorization of the Careers Training Demonstration Grants ……………………………………… 13 Reauthorization of the Offender Reentry Substance Abuse and Criminal Justice

Collaboration Program …………………………………………………………………………………………… 13 Reauthorization of the Community-Based Mentoring and Transitional Service Grants

to Nonprofit Organizations Program ………………………………………………………………………… 13 Reauthorization and Expansion of the BOP Early Release Pilot Program ………………………… 14 Reauthorization of Reentry Research ………………………………………………………………………….. 14 Evaluation of the Second Chance Act …………………………………………………………………………. 15 Recidivism Reduction Partnerships ……………………………………………………………………………. 16 Repealed Programs …………………………………………………………………………………………………… 16

Other Provisions ……………………………………………………………………………………………………………. 16

Modification of Good Time Credits ……………………………………………………………………………. 16 Bureau of Prisons Secure Firearm Storage ………………………………………………………………….. 16 Prohibition on the Use of Restraints on Pregnant Prisoners …………………………………………… 17 Placement of Prisoners Closer to Families …………………………………………………………………… 17 Home Confinement for Low-Risk Prisoners ………………………………………………………………… 18 Increasing the Use and Transparency of Compassionate Release ……………………………………. 18 Identification for Returning Citizens …………………………………………………………………………… 18 Expanding Prisoner Employment Through the Federal Prison Industries ………………………… 19 De-escalation Training ……………………………………………………………………………………………… 19 Evidence-Based Treatment for Opioid and Heroin Abuse ……………………………………………… 19 BOP Pilot Programs for Mentoring and Rescue Animals ………………………………………………. 20 National Prisoner Statistics Program…………………………………………………………………………… 20 Healthcare Products …………………………………………………………………………………………………. 20

The First Step Act of 2018: An Overview

Congressional Research Service

Federal Interagency Reentry Coordination ………………………………………………………………….. 20 Juvenile Solitary Confinement …………………………………………………………………………………… 21

Contacts

Author Information ………………………………………………………………………………………………………… 21

The First Step Act of 2018: An Overview

Congressional Research Service 1

n December 21, 2018, President Trump signed into law the First Step Act of 2018 (P.L.

115-391). The act was the culmination of several years of congressional debate about

what Congress might do to reduce the size of the federal prison population while also

creating mechanisms to maintain public safety.

Correctional and sentencing reform was an issue that drew interest from many Members of

Congress. Some Members took it up for fiscal reasons; they were concerned that the increase in

the Bureau of Prisons’ (BOP) budget would take resources away from the Department of Justice’s

(DOJ) other priorities. Other Members were interested in correctional reform due to concerns

about the social consequences (e.g., the effects incarceration has on employment opportunities

and the families of the incarcerated, or the normalizing of incarceration) of what some deem mass

incarceration, or they wanted to roll back some of the tough on crime policy changes that

Congress put in place during the 1980s and early 1990s.

This report provides an overview of the provisions of the First Step Act. The act has three major

components: (1) correctional reform via the establishment of a risk and needs assessment system

at BOP, (2) sentencing reform that involved 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 that include, for example, changes to the way

good time credits are calculated for federal prisoners, prohibiting the use of restraints on pregnant

inmates, expanding the market for products made by the Federal Prison Industries, and requiring

BOP to aid prisoners with obtaining identification before they are released.

Correctional Reforms The correctional reform component of the First Step Act involves the development and

implementation of a risk and needs assessment system (system) at BOP.1

Development of the Risk and Needs Assessment System

The act requires DOJ to develop the system to be used by BOP to assess the risk of recidivism of

federal prisoners and assign prisoners to evidence-based recidivism reduction programs2 and

productive activities3 to reduce this risk. DOJ is required to develop and release the system within

210 days of enactment of the First Step Act. The system is to be used to

 determine the risk of recidivism of each prisoner during the intake process and

classify each prisoner as having a minimum, low, medium, or high risk;

1 For more information on the use of risk and needs assessment in prisons, see CRS Report R44087, Risk and Needs

Assessment in the Federal Prison System.

2 The act defines evidence-based recidivism reduction program as a group or individual activity that (1) has been

shown through empirical evidence to reduce recidivism or is based on research indicating that it is likely to be effective

in reducing recidivism; (2) is designed to help prisoners succeed in their communities upon release from prison; and (3)

may include social learning and communication, interpersonal, anti-bullying, rejection response, and other life skills;

family relationship building, structured parent-child interaction, and parenting skills; classes on morals or ethics;

academic classes; cognitive behavioral treatment; mentoring; substance abuse treatment; vocational training; faith-

based classes or services; civic engagement and reintegrative community services; a prison job, including through a

prison work program; victim impact classes or other restorative justice programs; and trauma counseling and trauma-

informed support programs.

3 The act defines productive activities as 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.

O

The First Step Act of 2018: An Overview

Congressional Research Service 2

 assess and determine, to the extent practicable, the risk of violent or serious

prison misconduct of each prisoner;

 determine the type and amount of recidivism reduction programming that is

appropriate for each prisoner and assign each prisoner to programming based on

the prisoner’s specific criminogenic needs;4

 periodically reassess the recidivism risk of each prisoner;5

 reassign prisoners to appropriate recidivism reduction programs or productive

activities based on their reassessed risk of recidivism to ensure that all prisoners

have an opportunity to reduce their risk classification, that the programs address

prisoners’ criminogenic needs, and that all prisoners are able to successfully

participate in such programs;

 determine when to provide incentives and rewards for successful participation in

recidivism reduction programs or productive activities;

 determine when a prisoner is ready to transfer into prerelease custody or

supervised release; and

 determine the appropriate use of audio technology for program course materials

to accommodate prisoners with dyslexia.

DOJ is authorized to use existing risk and needs assessment instruments, validated annually, to

meet the requirements of the act.

When developing the system, the Attorney General is required to consult with

 the Director of BOP;

 the Director of the Administrative Office of the United States Courts;

 the Director of the Office of Probation and Pretrial Services;

 the Director of the National Institute of Justice;

 the Director of the National Institute of Corrections; and

 the Independent Review Committee, which is established by the First Step Act.6

When developing the system, the Attorney General, with the assistance of the Independent

Review Committee, is required to

4 Criminogenic needs are risk factors for recidivism that can change and/or be addressed through an intervention.

5 The act requires BOP to reassess prisoners not less than annually, and prisoners who are at high or medium risk for

recidivism and within five years of being released are to receive more frequent reassessments.

6 Under the act, the National Institute of Justice (NIJ) is required to select a nonpartisan and nonprofit organization with

expertise in the study and development of risk and needs assessment tools to host the Independent Review Committee

(committee). The organization selected by NIJ is required to select no fewer than six members for the committee who

have expertise in risk and needs assessment systems. The committee is required to

 conduct a review of the existing prisoner risk and needs assessment systems;

 develop recommendations regarding rehabilitative programs and productive activities;

 conduct research and data analysis on rehabilitative programs related to the use of prisoner risk and needs

assessment tools, the most effective and efficient uses of such programs, which rehabilitative 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

 review and validate the system.

The committee is to terminate two years after DOJ releases the system.

The First Step Act of 2018: An Overview

Congressional Research Service 3

 conduct a review of the existing risk and needs assessment systems;

 develop recommendations regarding recidivism reduction programs and

productive activities;

 conduct ongoing research and data analysis on (1) evidence-based recidivism

reduction programs related to the use of risk and needs assessment, (2) the most

effective and efficient uses of such programs, (3) which 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 (4)

products purchased by federal agencies that are manufactured overseas and could

be manufactured by prisoners participating in a prison work program without

reducing job opportunities for other workers in the United States;7

 annually review and validate the risk and needs assessment system, including an

evaluation to ensure that assessments are based on dynamic risk factors (i.e., risk

factors that can change); validate any tools that the system uses; and evaluate the

recidivism rates among similarly classified prisoners to identify any unwarranted

disparities, including disparities in such rates among similarly classified prisoners

of different demographic groups, and make any changes to the system necessary

to address any that are identified; and

 submit an annual report to Congress each year for five years starting in 2020 (see

below).

Also, prior to releasing the system, DOJ is required to consult with the Independent Review

Committee to

 review the effectiveness of recidivism reduction programs in prisons operated by

BOP;

 review available information regarding the effectiveness of recidivism reduction

programs and productive activities provided in state prisons;

 review the policies for entering into recidivism reduction partnerships authorized

by the act; and

 direct BOP regarding (1) evidence-based recidivism reduction programs, (2) the

ability for faith-based organizations to provide educational programs outside of

religious courses, and (3) the addition of any new effective recidivism reduction

programs that DOJ finds.

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 and the ways that BOP can tailor programs to the specific criminogenic needs

of each prisoner to reduce their risk of recidivism. 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 requires BOP, when developing the system, to take steps to screen prisoners for dyslexia

and to provide programs to treat prisoners who have it.

7 In 2011, Congress gave the Federal Prison Industries (FPI) repatriation authority. As a part of the Commerce, Justice,

Science, and Related Agencies Appropriations Act, 2011 (P.L. 112-55), Congress authorized FPI to manufacture goods

for the commercial market if they are currently or would have otherwise been manufactured outside the United States.

The First Step Act of 2018: An Overview

Congressional Research Service 4

Implementation of the Risk and Needs Assessment System

Within 180 days of DOJ releasing the system, BOP is required to

 complete the initial risk and needs assessment for each prisoner (including for

prisoners who were incarcerated before the enactment of the First Step Act);

 begin to assign prisoners to appropriate recidivism reduction programs based on

the initial assessment;

 begin to expand the recidivism reduction programs and productive activities

available at BOP facilities and add any new recidivism reduction programs and

productive activities necessary to effectively implement the system; and

 begin to implement any other risk and needs assessment tools necessary to

effectively implement the system over time.

BOP is required to expand recidivism reduction programming and productive activities capacity

so that all prisoners have an opportunity to participate in risk reduction programs within two

years of BOP completing initial risk and needs assessments for all prisoners. During the two-year

period when BOP is expanding recidivism reduction programs and productive activities, prisoners

who are nearing their release date are given priority for placement in such programs.

BOP is required to provide all prisoners with the opportunity to participate in recidivism

reduction programs that address their criminogenic needs or productive activities throughout their

term of incarceration. High- and medium-risk prisoners are to have priority for placement in

recidivism reduction programs, while the program focus for low-risk prisoners is on participation

in productive activities.

Prisoners who successfully participate in recidivism reduction programming or productive

activities are required to be reassessed not less than annually, and high- and medium-risk

prisoners who have less than five years remaining until their projected release date are required to

have more frequent reassessments. If the reassessment shows that a prisoner’s risk of recidivating

or specific needs have changed, BOP is required to reassign the prisoner to recidivism reduction

programs or productive activities consistent with those changes.

DOJ is required to develop and administer a training program for BOP employees on how to use

the system. This training program must include

 initial training to educate employees on how to use the system in an appropriate

and consistent manner,

 continuing education,

 periodic training updates, and

 a requirement that employees biannually demonstrate competence in

administering the system.

To ensure that BOP is using the system in an appropriated and consistent manner, DOJ is required

to monitor and assess how the system is used at BOP, including an annual audit of the system’s

use.

Incentives and Rewards for Program Participation

The First Step Act requires the use of incentives and rewards for prisoners to participate in

recidivism reduction programs, including the following:

The First Step Act of 2018: An Overview

Congressional Research Service 5

 additional phone privileges, and if available, video conferencing privileges, of up

to 30 minutes a day, and up to 510 minutes a month;

 additional time for vi