Federal Correctional Reform and the First Step Act of 2018
Updated December 28, 2018
Federal Correctional Reform and the First Step Act of 2018
The size of the federal prison system has grown
Adjusted the mandatory minimum sentences for certain
significantly since the beginning of the 1980s. The number
drug traffickers with prior drug convictions by
of convicted offenders under the Bureau of Prison’s
increasing the threshold for qualifying prior
(BOP’s) jurisdiction has decreased in each of the past four
convictions from 1-year drug felonies to 10-year drug
fiscal years, but even with the recent decrease, the number
felonies (but adding some violent felonies and not
of federal prisoners in FY2017 (185,617) was six times
subjecting them to the 10-year threshold), reducing the
greater than was it was in FY1980 (24,640). During the
20-year mandatory minimum (applicable where the
same time, the population of the United States increased by
offender has one prior qualifying conviction) to a 15-
44%. Although the federal prison population decreased
year mandatory minimum, and reducing the lifelong
from FY2013 to FY2017, appropriations for BOP continued
mandatory minimum (applicable where the offender
to increase through FY2016. The BOP’s appropriations,
has two or more prior qualifying convictions) to a 25-
adjusted for inflation, increased by $6.5 billion from
year mandatory minimum.
FY1980 ($871 million) to FY2018 ($7.326 billion). During
this time, the BOP’s expanding budget consumed a larger
Permitted drug offenders with minor criminal records
share of the Department of Justice’s overall annual
to qualify for the safety valve provision, which
appropriations.
previously applied only to offenders with virtually
spotless criminal records. The safety valve allows
Concerns about the financial and social costs of
judges to sentence low-level, nonviolent drug offenders
incarcerating a growing number of federal inmates have
to a term of imprisonment that is less than the
generated interest among some policymakers about ways to
applicable mandatory minimum.
reduce the federal prison population while maintaining
public safety. Aside from the costs of incarceration, other
Authorized courts to apply retroactively the Fair
costs include the detrimental effects that incarceration can
Sentencing Act of 2010 (P.L. 111-220), which increased
have on economic opportunities and familial bonds of
the threshold quantities of crack cocaine sufficient to
people who have spent time behind bars or the potential that
trigger mandatory minimum sentences, by resentencing
detention may increase an inmate’s likelihood to commit
qualified prisoners as if the act had been in effect at the
other crimes.
time of their offense.
Generally speaking, there are two, not mutually exclusive,
Eliminated stacking; the 25-year mandatory minimum
methods for reducing the number of prison inmates: (1)
for a “second or subsequent” conviction for use of a
send fewer convicted offenders to prison or (2) reduce the
firearm in furtherance of a drug trafficking crime or a
length of sentences served. The 115th Congress enacted the
violent crime now applies only where the offender has
First Step Act of 2018 (S. 756) and considered other
a prior conviction that is already final, not where two
proposals that focused on both methods.
violations are charged concurrently (as occurred under
prior law).
Correctional Reform
in the 115th Congress
Other proposals would have done the following:
The First Step Act largely focused on (1) reducing the
penalties, especially mandatory minimum terms of
Made the adjustments to mandatory minimum sentences
imprisonment, for various federal drug and firearm offenses
for repeat drug offenders and the elimination of stacking
and (2) allowing prisoners to be placed in pre-release
retroactive, by authorizing the courts to resentence
custody earlier by earning additional time credits as part of
qualified prisoners consistent with general sentencing
a recidivism reduction program built upon a risk and needs
policies.
assessment system. Other legislative proposals in past
Congresses to reduce the federal prison population would
Lowered to 10 years the 20-year mandatory minimum
have made broader reductions to mandatory minimum
sentence for low-level, nonviolent participants in a
sentences. Still other proposals sought to eliminate
substantial drug enterprise who had no more than minor
uncertainty over the level of knowledge or intent (mens rea)
criminal records.
that culpability for some criminal offenses requires.
Reduced to 15 years the 25-year mandatory minimum
Reducing Penalties
for possession of a firearm in furtherance of a crime of
The First Step Act made the following changes to federal
violence or drug trafficking when the offender has a
sentencing law:
prior conviction for a crime of violence involving a
firearm and permitted the courts to apply this reduction
retroactively.
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Federal Correctional Reform and the First Step Act of 2018
Lowered to 10 years the 15-year Armed Career Criminal Exemptions for crimes under the Uniform Code of
Act mandatory minimum sentences for felons convicted
Military Justice.
of possession of a firearm, who have three prior
convictions for violent felonies or serious drug offenses
Early Release for Prisoners
(but increased from 10 years to 15 years the maximum
The First Step Act establishes a risk and needs assessment
penalty for firearm possession by felons and members of
system in federal prisons. The legislation allows certain
other disqualified groups).
prisoners to earn additional time credits for successfully
completing rehabilitative programs, leading to an earlier
Clarifying the Mens Rea Standard
release from prison to community supervision. More
Several bills in the 115th Congress would have endeavored
specifically, the act
to reduce the number of convictions, and consequently the
number of those imprisoned, attributable to broad
Requires the Department of Justice (DOJ) to develop a
interpretations of federal mens rea standards. Mens rea is
risk and needs assessment system that determines the
criminal law’s state of mind standard. It is the level of
risk of recidivism for each prisoner.
knowledge or intent an individual must exhibit to be guilty
of a crime. The standard varies considerably from one
Requires the system to provide guidance on the type,
crime to another.
amount, and intensity of rehabilitative programming
that is appropriate for each prisoner and assign
For some crimes, like speed-limit violations and certain
prisoners to appropriate rehabilitative programs.
regulatory offenses, there is no mens rea requirement. An
individual is liable even though he may have acted or failed
Requires DOJ to review and validate the system
to act unknowingly or inadvertently. For other crimes, the
annually.
operative criminal statute may have no express mens rea
standard; it is for the courts to determine what level of
Allows prisoners to earn 10 days of time credits for
knowledge or intent, if any, is required for conviction. For
every 30 days they successfully participate in
still other crimes, an individual may be liable for intentional
rehabilitative programming (earned time credits under
conduct that he reasonably believed was not criminal.
the system would be in addition to any other rewards or
These are the situations that the proponents of mens rea
incentives for which prisoners are eligible).
proposals in the 115th Congress addressed.
Allows prisoners deemed a minimum or low recidivism
One proposal spoke to the criminal statutes that have no
risk and whose risk does not increase over two
explicit mens rea standard. There, as a default rule going
consecutive assessments to earn an additional five days
forward for newly enacted criminal statutes, culpability
of time credits for every 30 of successful participation
would have been limited to those who acted willfully—that
in rehabilitative programming.
is, who knew their conduct was unlawful and who acted
with the intent to engage in the unlawful conduct. This
Excludes prisoners serving sentences for one of dozens
default rule would have become applicable to existing
of enumerated offenses from earning additional time
offenses no later than five years after enactment of the
credits for successfully participating in rehabilitative
proposal. The proposal would have created exceptions to
programming (these crimes generally can be
the default standard for statutes with text evidencing a
categorized as violent, terrorism, espionage, human
congressional intent to dispense with a mens rea
trafficking, sex and sexual exploitation, repeat felon in
requirement and for elements that give rise to federal
possession of firearm, certain fraud, and high-level
jurisdiction under various statutes (e.g., the offender travels
drug offenses).
in interstate commerce). The proposal also would have
created a National Criminal Justice Commission charged
Requires BOP to provide rehabilitative programming
with creating an inventory of federal criminal offenses that
and productive activities to all prisoners within two
lack an explicit mens rea requirement for some or all
years of completing the initial risk and needs
elements.
assessments for all prisoners.
Other proposals in earlier Congresses contained provisions
Allows prisoners to be placed on home confinement or
for
in a residential reentry center (i.e., a halfway house)
when the amount of additional time credits earned is
A default standard requiring proof that the accused acted
equal to the time remaining on the prisoner’s sentence.
“knowingly.” That standard, unlike the willfulness
standard, would not have required proof that the accused
Sections of a prior version of this InFocus were written by
acted with knowledge of illegality unless, under the
Legislative Attorney Charles Doyle.
circumstances, he might reasonably have been unaware
of the criminal nature of his action.
Ben Harrington, Legislative Attorney
Nathan James, Analyst in Crime Policy
Separate default rules for statutes that explicitly assign a
mens rea standard for some of a crime’s substantive
IF10573
elements but neglect to do so for other substantive
elements.
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Federal Correctional Reform and the First Step Act of 2018
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https://crsreports.congress.gov | IF10573 · VERSION 3 · UPDATED