A Case for the Expansion of the First Step Act of 2018

Beginning with the Comprehensive Crime Control Act of 1984, the following decades in the United States were characterized by punitive excess. During Ronald Reagan’s presidential term in the 1980s, the prison population nearly doubled—from 329,000 at the time of his 1980 election to 627,000 by the end of his term in 1989. This spike in the prison population occurred in tandem with an array of social movements and laws that championed the increased prosecution of drug-related offenses, largely targeting and affecting people of color. The late twentieth century marked the beginning of mass incarceration in the United States—to this day, the United States imprisons more of its people than any other country, especially people of color and those in poverty. 

Nearly thirty years after the Comprehensive Crime Control Act, at the end of 2017, there were 1,489,200 people behind bars in the United States, and, despite changes to societal rhetoric, the demographic composition of U.S. prisons did not change much from that during the Reagan “tough on crime” era. To this day, one out of five incarcerated people is locked up for a drug-related offense. Moreover, people of color are still dramatically overrepresented in the prison system, with Black people making up 38 percent of the prison population but just 12 percent of the general one. War on Drug era sentiments and sentencing policies have had a colossal impact on the U.S.’s carceral state. 

In 2018, the federal government began grappling with the punitive excesses of decades prior, when former President Donald Trump signed The First Step Act of 2018 into law. The Act is aptly named—it was designed in a bipartisan effort to be a “first step” in remedying the punitive excesses of the 1980s and 1990s. Goals included lowering criminal recidivism, promoting rehabilitation, and reducing excessive sentence length in prisons. The First Step Act built upon previous reform acts, for example, making the Fair Sentencing Act of 2010 retroactive to address the existing disparity in federal sentences between crack cocaine and powder cocaine. The 2018 law additionally reduced certain mandatory minimum sentences, broadened existing safety valves, and established a stringent plan for reducing rates of criminal recidivism. The First Step Act has certainly benefited numerous prisoners—so far, it has assisted 30,000 people in expediting their release. However, its rollout has been inequitable in terms of who is offered opportunities for early release, specifically in its provision of earned time credits. 

One of the primary components of the First Step Act is the provision of earned time credits, which reward prisoners for participating in rehabilitative programming. Eligible prisoners are able to cash in earned days—ranging from 10 to 15 days for every 30 days in the program—to count toward the rest of their sentence, therefore enabling early release. However, this portion of the Act does not have its intended effect of remedying mass incarceration, as nearly “half the federal prison population” is deemed ineligible to claim earned time credit based on the nature of their conviction. 

The Act outlines nearly seventy crimes that render prisoners ineligible to achieve earned time credits, the majority of which are violent crimes. There is a common misconception, due to the name, that violent crimes include physical harm. However, “violent crime” is a legal distinction that does not imply actual harm. Rather, violent crimes include offenses that involve force or threat of force. Within the First Step Act, crimes deemed ineligible include distributing methamphetamine, aiding aliens to enter the United States, or communicating restricted data under the Atomic Energy Act, all “non-violent” in a general sense, but viewed as “violent” under the law. The end to mass incarceration will not come from legal remedies that only include nonviolent crimes. Whether a convicted criminal has committed a crime more or less severe than a nonviolent drug offense, policies that aim to end mass incarceration, including the provision of earned time credits, must be much more expansive. 

The distinction between violent and nonviolent crimes in determining eligibility for earned times credits is harmful for two main reasons—there is no significant public safety benefit to excluding violent offenders, and the exclusion of violent crimes largely impacts people of color. Without revision, the Act will continue to disadvantage violent offenders and people of color from benefiting, perpetuating both systemic racism and common misconceptions of crime.

The exclusion of prisoners based on the nature of their crime has no practical policy benefit and rather perpetuates the emphasis on incarceration rather than rehabilitation. In the modern carceral state, there is often hesitation to release people with violent convictions because of the belief that people released from prison are likely to commit a new crime. However, there is no empirical support for this. In fact, people convicted of murder and other violent crimes reoffend after release from prison just ten percent of the time. The Bureau of Justice Statistics cites that 1 percent of these reoffenses include a homicide, and 2 percent include a sexual assault or rape. Thus, public safety is not significantly threatened by the broadening of earned time credit eligibility, as the concerns surrounding the reentry of violent offenders into society have little basis.

The current eligibility for ETCs has a disparate impact on people of color and should be revised. Because a majority of the crimes deemed ineligible for earned time credits include violent offenses, there is a racial divide in terms of who is eligible. Arrests for violent offenses are disproportionate across racial lines—Black people are overrepresented in arrests for both nonfatal violent crimes and for serious nonfatal violent crimes relative to their percentage in the US population; Hispanics are overrepresented among arrestees for nonfatal violent crimes excluding assault. White people, however, are underrepresented. In a system plagued by racial bias, the exclusion of some offenses inevitably contributes to communities of color remaining in the prison system for longer than their white counterparts. 

In order to remedy the inequities within the First Step Act’s implementation, there must be a reworking of its enforcement. The extension of earned time credits relies on PATTERN, a risk assessment system developed by the Act. PATTERN predicts the likelihood of recidivism, the probability that a convicted criminal will re-offend, by collecting information on an incarcerated individual and assigning a total risk score. Based on this risk score, people in Board of Prisons (BOP) custody are deemed to be of low, medium, or high risk. This determines a person’s eligibility for accumulating earned time credits and receiving incentives for rehabilitative programs. Until recently, the PATTERN system heavily focused on rearrest, which does not reflect the actual likelihood of criminal activity but rather depends on biased policing decisions such as where officers are stationed and officers’ individual prejudices. Additionally, the system weighed static factors like age and criminal history more heavily than changeable ones. In 2021, more than 70 percent of Black people in BOP custody were classified as medium or high risk, and Black, Hispanic, and Asian people were systemically overpredicted to commit crimes after exiting prison. Being part of historically overpoliced communities with more carceral system contact, incarcerated individuals of color were disempowered from altering their risk score.

In April of 2022, the Department of Justice addressed some of the aspects of PATTERN that produced disparate outcomes. However, the changes did not go far enough. While they revised the points of consideration for general recidivism risk, they failed to change the points of consideration for the risk of violent recidivism—which still includes factors that consider the past histories of convicted criminals. These changes to PATTERN have limited impact on the system’s equity, as a high violent score overrides a low general score. In addition to maintaining disparities in terms of who accrues earned time credits, this continues to allow reincarceration for people of color, as only those with low-risk scores are incentivized to engage in rehabilitative programming. Thus, PATTERN must have its cut points for violent recidivism risk revised. Without this, even if eligibility for earned time credits is expanded, individuals convicted of violent crimes will be placed in the high-risk category, and ETCs will not be effective in undoing the harms of the criminal justice system.

Incarceration has indisputable lifetime impacts on individuals. People who have been in contact with the justice system face a variety of negative effects post-release—discrimination in hiring, lower wage earning potential, reduced educational attainment, and exclusion from public benefits. Moreover, incarceration is linked to increased symptoms of mental illness, including depression and bipolar disorder. Despite this truth, the United States has seen a history of simplistic policymaking that fails to push the envelope on society’s view of rehabilitation and recidivism. The First Step Act of 2018 was just that—a first step. The United States is long overdue for a second. 

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1 United States Sentencing Commission. “2015 Report to the Congress: Impact of the Fair Sentencing Act of 2010.” (8 Mar. 2017), www.ussc.gov/research/congressional-reports/2015-report-congress-impact-fair-sentencing-act-2010#:~:text=The%20Fair%20Sentencing%20Act%20of%202010%20(FSA)%2C%20enacted%20August,cocaine%20and%20increased%20statutory%20fines.

2 Ames Grawert, Cameron Kimble, et al., “Social & Economic Harm.” Brennan Center for Justice, (21 Feb. 2019), www.brennancenter.org/issues/end-mass-incarceration/social-economic-harm.

3 Ashley Nellis, Ph.D., “A New Lease on Life.” The Sentencing Project, (2 Nov. 2022), www.sentencingproject.org/publications/a-new-lease-on-life/.

4 Ashley Nellis, Ph.D., and Liz Komar. “The First Step Act: Ending Mass Incarceration in Federal Prisons.” The Sentencing Project, (22 Aug. 2023), www.sentencingproject.org/policy-brief/the-first-step-act-ending-mass-incarceration-in-federal-prisons/.

5 Allen J. Beck, “Race and Ethnicity of Violent Crime Offenders and Arrestees, 2018.” U.S. Department of Justice, (Jan. 2021), bjs.ojp.gov/content/pub/pdf/revcoa18.pdf.

6 Christina Carrega, “Those Convicted of Violent Crimes Are Rarely Rearrested for the Same Offense, Report Finds.” CNN, Cable News Network, (30 June 2021), www.cnn.com/2021/06/30/us/sentencing-project-recidivism-report/index.html.

7 Ann Carson, “Prisoners in 2018 - Bureau of Justice Statistics.” Bureau of Justice Statistics, U.S. Department of Justice, (Apr. 2020), bjs.ojp.gov/content/pub/pdf/p18.pdf.

8 U.S. Department of Justice, Office of the Attorney General. “First Step Act Annual Report, April 2023 - Office of Justice Programs.” (Apr. 2023), www.ojp.gov/first-step-act-annual-report-april-2023.

9 Katie Rose Quandt, and Alexi Jones, “Research Roundup: Incarceration Can Cause Lasting Damage to Mental Health.” Prison Policy Initiative, (13 May 2021), www.prisonpolicy.org/blog/2021/05/13/mentalhealthimpacts/.

10 Patricia Richman, and Ames Grawert. “The First Step Act’s Prison Reforms.” Brennan Center for Justice, (7 Aug. 2023), www.brennancenter.org/our-work/research-reports/first-step-acts-prison-reforms.

11 United States Congress. First Step Act of 2018. (2018). Authenticated U.S. Government Information Congress.

12 Federal Bureau of Investigations. “Violent Crime.” (25 July 2011), ucr.fbi.gov/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/violent-crime#:~:text=Definition,force%20or%20threat%20of%20force.

13 Wendy Sawyer and Peter Wagner. “Mass Incarceration: The Whole Pie 2023.” Prison Policy Initiative, (14 Mar. 2023), www.prisonpolicy.org/reports/pie2023.html.

14 James Cullen. “The History of Mass Incarceration.” Brennan Center for Justice, (24 Oct. 2023), www.brennancenter.org/our-work/analysis-opinion/history-mass-incarceration.