Consensus, Compassion, and Compromise? The First Step Act and Aging Out of Crime

Abstract

The passage of the First Step (Act) represents an ambitious, bipartisan compromise to commence much-needed, genuine federal sentencing reform. However, as its name suggests, it is, in practice, simply one meager stride in what requires a marathon to affect true change. Its improvements fail to achieve the status of “groundbreaking.” This is particularly evident when considering its approach to reduction in sentence of elderly offenders. Since 2013, compassionate release has stood as the exclusive process available for worthy elderly offenders to request early release from prison. While the Act certainly expands access to compassionate release, it fails to do so generously. The Bureau of Prisons (BOP) continues to craft and preserve implementation guidelines that render compassionate release policies ineffective. The Act also revives the Second Chance Act of 2007 by providing a vehicle for early release of certain classes of elderly offenders. While this reauthorization appears appealing, it, too, fails to realize its full potential. This is so because BOP has again apprehended the system by refusing to include good time credits in release eligibility calculations. While the Act is a product of deliberate compromise between lawmakers, consensus concerning its practical application is non-existent.