The Senate Version of S3649, The First Step Act of 2018, passed 87-12 on 12/18/2018, and the media reports the House and the President will pass the bill. (The House Version passed 360-59 in May 2018.)This First Step Act is the first major criminal justice reform bill since the Second Chance Act, but sadly, this reform bill will do little to benefit Registered Persons.
Even before December’s debate over S3649, a number of sex crimes were excluded from the Act. Senate Republicans, particularly between one faction led by Tom Cotton (R-AR), who successfully derailed a similar criminal justice reform bill in 2016 (1), and the other faction led by Sens. Chuck Grassley (R-IA) and Mike Lee (R-UT). Cotton wanted to expand the list of exclusions to cover every sex and violent offense, playing on Predator Panic in an attempt to derail the bill. “Now that the Department of Justice has confirmed that the Senate FIRST STEP Act offers early release to multiple categories of sex offenders in several provisions of the bill, Congress should fix these problems instead of ramming this bill through. There is no such thing as a ‘low-risk violent sex offender’ who deserves earlier release than under current law,” Cotton wrote in an emailed statement to Politico. In response, Lee wrote, “Just because a federal offense is not on the specific list of ineligible offenses doesn’t mean inmates who committed [a] non-specified offense will earn early release; All inmates must first pass a DOJ risk assessment before they can even begin earning good time credits. And then they must secure certification from their warden that they are not a threat to safety before they can be released,” and added that opponents were spreading “fake news.” (2)
Lee’s claim opponents were spreading fake news, particularly Cotton, was a legitimate concern. In an op-ed to the National Review (a conservative publication), Sen. Cotton used an anecdotal example relying on Predator Panic in an attempt to derail the bill. Cotton misrepresented the story of a former NASCAR driver who was convicted in August of “trying to force a twelve-year-old girl to have sex with him.” He added, “Crawford’s sex crime was not obscure, low-level, or “victimless.” Quite the opposite. His crime had the potential to shatter a child’s life.”(3) In reality, there was no child involved; the driver was nabbed in an online sting operation. The Sentencing Law and Policy blog added, “But to say he tried to force a 12-year-old to have sex seems off since there never was an actual 12-year-old. Indeed, I think it fair to call C’s crime ‘victimless,’ though the case really serves as a great indication of how hard it is to place accurate short-hand labels on various crimes (and how easy it is for Sen Cotton to make a crime sound worse than it was is using short-hand labels). To allow C., who is 60 years old and appears to have no criminal history, the chance to earn “time credits” by completing evidence-based programming to reduce his risk of recidivism seem to me sensible, not scary. (And, as I understand matters, if a risk assessment procedure were to classify Crawford as “high-risk” he would not in fact get any sentence reductions.)” (4)
Cotton also claimed that, “According to the United States Sentencing Commission, there are 1,466 sex offenders convicted under 18 USC 2422(b) that will be eligible for the credits unless this amendment is passed.”(5)
Interestingly, the Senate replaced the S.756 – Save Our Seas Act of 2018 with the text of the First Steps Act, which has led to confusion and difficulty in following the events of the Senate vote. This means at this time, I have no idea exactly when the change to add Failure To Register was added to the bill. However, it has been reported that Cotton’s amendment to make all sex crimes ineligible for the early release programs (SA4140) failed.
Regarding the passage of the First Steps Act in the Senate, the 12 Senate Nea votes came from Barrasso (R-WY), Cotton (R-AR), Enzi (R-WY), Kennedy (R-LA), Kyl (R-AZ), Murkowski (R-AK), Risch (R-ID), Rounds (R-SD), Rubio (R-FL), Sasse (R-NE), Shelby (R-AL), and Sullivan (R-AK). Lindsey Graham (R-SC) abstained from voting.
Keep in mind that the First Step Act only applies to federal prisons, not state prisons. Since I’m only covering the sections that impact Registrants, the summary of the bill’s provisions listed below is not a summary of the ENTIRE bill, as passed by the Senate. The House might still make changes before going to the President. However, I wanted to pass along my personal analysis this along since I’ve been getting dozens of calls, letters and emails about it. Ultimately, I believe this will benefit only a precious few SOs currently in federal prison.
Title 1, Sec. 101, Subsec. 3632. Development of risk and needs assessment system
‘(d) EVIDENCE-BASED RECIDIVISM REDUCTION PROGRAM INCENTIVES AND PRODUCTIVE ACTIVITIES REWARDS.—The System shall provide incentives and rewards for prisoners to participate in and complete evidence-based recidivism reduction programs as follows:
(1) PHONE AND VISITATION PRIVILEGES.—A prisoner who is successfully participating in an evidence-based recidivism reduction program shall receive—
‘(A) phone privileges, or, if available, video conferencing privileges, for up to 30 minutes per day, and up to 510 minutes per month; and ‘‘(B) additional time for visitation at the prison, as determined by the warden of the prison.
(2) TRANSFER TO INSTITUTION CLOSER TO RELEASE RESIDENCE.—A prisoner who is successfully participating in an evidence-based recidivism reduction program shall be considered by the Bureau of Prisons for placement in a facility closer to the prisoner’s release residence upon request from the prisoner and subject to—
(A) bed availability at the transfer facility;
(B) the prisoner’s security designation; and
(C) the recommendation from the warden of the prison at which the prisoner is incarcerated at the time of making the request.
(3) ADDITIONAL POLICIES.—The Director of the Bureau of Prisons shall develop additional policies to provide appropriate incentives for successful participation and completion of evidence-based recidivism reduction programming. The incentives shall include not less than 2 of the following:
(A) Increased commissary spending limits and product offerings.
(B) Extended opportunities to access the email system.
(C) Consideration of transfer to preferred housing units (including transfer to different prison facilities).
(D) Other incentives solicited from prisoners and determined appropriate by the Director.
(4) TIME CREDITS.—
(A) IN GENERAL.—A prisoner, except for an ineligible prisoner under subparagraph (D), who successfully completes evidence-based recidivism reduction programming or productive activities, shall earn time credits as follows:
(i) A prisoner shall earn 10 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.
(ii) A prisoner determined by the Bureau of Prisons to be at a minimum or low risk for recidivating, who, over 2 consecutive assessments, has not increased their risk of recidivism, shall earn an additional 5 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.
(B) AVAILABILITY.—A prisoner may not earn time credits under this paragraph for an evidence-based recidivism reduction program that the prisoner successfully completed—
(i) prior to the date of enactment of this subchapter; or
(ii) during official detention prior to the date that the prisoner’s sentence commences under section 3585(a).
(C) APPLICATION OF TIME CREDITS TOWARD PRERELEASE CUSTODY OR SUPERVISED RELEASE.—Time credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in prerelease custody or supervised release. The Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.
(D) INELIGIBLE PRISONERS.—A prisoner is ineligible to receive time credits under this paragraph if the prisoner is serving a sentence for a conviction under any of the following provisions of law:
(v) Section 116, relating to female genital mutilation.
(xxxi) Any section of chapter 109A, relating to sexual abuse.
(xxxii) Section 2250, relating to failure to register as a sex offender (COMMENT: Sen. Cotton got this added to the bill at the last minute)
(xxxiii) Section 2251, relating to the sexual exploitation of children.
(xxxiv) Section 2251A, relating to the selling or buying of children.
(xxxv) Section 2252, relating to certain activities relating to material involving the sexual exploitation of minors.
(xxxvi) Section 2252A, relating to certain activities involving material constituting or containing child pornography.
(xxxvii) Section 2260, relating to the production of sexually explicit depictions of a minor for importation into the United States.
(COMMENT: This covers nearly every category of sex crime especially if a minor was involved.)
SEC. 603. FEDERAL PRISONER REENTRY INITIATIVE REAUTHORIZATION; MODIFICATION OF IMPOSED TERM OF IMPRISONMENT.
(a) FEDERAL PRISONER REENTRY INITIATIVE RE21 AUTHORIZATION.—Section 231(g) of the Second Chance Act of 2007 (34 U.S.C. 60541(g)) is amended—
‘(D) ELIGIBLE TERMINALLY ILL OFFENDER.—The term ‘eligible terminally ill offender’ means an offender in the custody of the Bureau of Prisons who—
(i) is serving a term of imprisonment based on conviction for an offense or offenses that do not include any crime of violence (as defined in section 16(a) of title 18, United States Code), sex offense (as defined in section 111(5) of the Sex Offender Registration and Notification Act (34 U.S.C. 20911(5))), offense described in section 2332b(g)(5)(B) of title 18, United States Code, or offense under chapter 37 of title 18, United States Code… (COMMENT: This means those convicted of sex offenses will not be eligible for early release due to terminal illness. )
SEC. 609. ENSURING SUPERVISION OF RELEASED SEXUALLY DANGEROUS PERSONS.
(a) PROBATION OFFICERS.—Section 3603 of title 18, United States Code, is amended in paragraph (8)(A) by striking ‘‘or 4246’’ and inserting ‘‘, 4246, or 4248’’.
(b) PRETRIAL SERVICES OFFICERS.—Section 3154 of title 18, United States Code, is amended in paragraph (12)(A) by striking ‘‘or 4246’’ and inserting ‘‘, 4246, or 4248’’.
(COMMENT: Merely an administrative change referring to record keeping. 4246 refers to 18 USC 4243 – Hospitalization of a person found not guilty only by reason of insanity, and 4248 refers to 18 USC 4246 – Hospitalization of a person due for release but suffering from mental disease or defect.
1. Zak Cheney-Rice. “Tom Cotton’s America Is Not a Free America.” NY Intelligencer. Dec 2018. Online at http://nymag.com/intelligencer/2018/12/toms-cotton-first-step-act.html
2. Burgess Everett & Elana Schor. “Cotton wields sex offender report to tank prisons bill.” Politico. 26 Nov 2018. Online at https://www.politico.com/story/2018/11/26/tom-cotton-criminal-justice-reform-senate-republicans-trump-1015149
3. Tom Cotton. “Fix the First Step Act and Keep Violent Criminals behind Bars.” National Review. 17 Dec 2018. Online at https://www.nationalreview.com/2018/12/first-step-act-amendments-keep-violent-offenders-behind-bars/
4. “Some of Senator Cotton’s suspect claims in his latest case for amendments to the FIRST STEP Act.” Sentencing Law & Policy. 17 Dec 2018. Web. Online at https://sentencing.typepad.com/sentencing_law_and_policy/2018/12/some-of-senator-cottons-suspect-claims-in-his-latest-case-for-amendments-to-the-first-step-act.html
5. Tom Cotton. “Myths vs. Facts on the Cotton-Kennedy-Toomey-Kyl-Barrasso amendments to First Step.” Online at https://www.cotton.senate.gov/files/documents/Final%20Cotton-Kennedy%20Myths%20v.%20Facts.pdf