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 Supreme Court and the First Step Act 

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Michael Santos

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The US Supreme Court published a decision that should interest all people with federal criminal charges. With the high court’s June 27, 2022, decision in Concepcion v. the United States, federal judges have more discretion regarding resentencing.

A law degree isn’t necessary to understand how this decision benefits people in federal prison or those who anticipate going to federal prison. The Supreme Court’s ruling relates to the First Step Act, giving a sentencing judge more discretion on resentencing. 

Let me provide some backstory on why the decision is so relevant for people going into federal prison or serving time in federal prison.

During the 26 years that I served, mechanisms did not exist for a judge to consider a person’s behavior in prison. Before the historic First Step Act, both the judicial branch of government and the executive branch of government wanted finality. From the view of relevant stakeholders:

  • After a conviction, a judge would impose a sentence.
  • The person would transition out of the judicial branch of government, and into the executive branch of government, under the discretion of the Attorney General. 
  • The Attorney General would confine a person to the Bureau of Prisons.
  • The Bureau of Prisons would require a person to serve the sentence, repeatedly telling people that the agency primarily focused on maintaining the institution’s security, with little concern for a person’s life after release.

Prison reform legislation came forward every few years. In 1996, Congress passed the Comprehensive Crime Control Act, making the RDAP program possible. That legislation didn’t apply to me because my conviction stemmed from crimes committed before November 1, 1987.

Nevertheless, the RDAP program benefited thousands of people. But the program evolved slowly, requiring significant litigation along the way. As a massive government agency, the BOP has difficulty retraining tens of thousands of employees when Congress passes reform legislation.

In 2008, President Bush signed the Second Chance Act. The Second Chance Act also brought reforms that would benefit people in prison. Yet many years passed before the BOP began to recommend the full 12 months in halfway houses—various reasons exist for the slow rollout.

The First Step Act is the most significant prison reform law since the Sentence Reform Act (SRA), which began to take place in 1987—when I started serving my sentence. The SRA brought forth the federal sentencing guidelines. The government initially argued that the SRA mandated judges to issue sentences within the guidelines. It took more than a decade of litigation before the Supreme Court changed the law. With the new ruling, judges would consider the guidelines as “advisory,” but the judge had discretion on what sentence to impose.

The new ruling in Concepcion goes much further. In this era of the First Step Act (FSA), the change from Concepcion becomes relevant to every person in prison. 

The FSA authorizes a person to request compassionate release at the local institution. I am not speaking about release through the CARES Act but compassionate release through the First Step Act. The CARES Act is a particular case, an executive order in response to the pandemic. Although the CARES Act provided outstanding data for administrators to consider, this article speaks to the ruling in Concepcion and the FSA.

No one should expect the BOP to recommend compassionate release under the First Step Act. Earlier this summer, I interviewed Hugh Hurwitz, who retired as the director of the Bureau of Prisons. Hugh led the agency during the implementation of the FSA. He told me that of all the people who requested compassionate release through the First Step Act, more than 90 percent had to file independently with the sentencing judge because the BOP refused to make the recommendation.

That’s okay. At least people in federal prison had the mechanism to request relief. When I served my sentence, the mechanism did not exist. Even if a judge wanted to release a person, neither Congress nor the Supreme Court authorized a district court judge to reconsider a sentence imposed based on behavior in prison.

By the time I served ten years, I had earned a bachelor’s degree and a master’s degree and published several books. I could show outstanding prospects for success upon release. Yet none of that mattered. The law would require me to serve 26 years on a 45-year sentence.

Had the FSA been in place during the years I served, I could have asked for compassionate release. Although the BOP would have opposed me, I could go to the sentencing judge and request relief. I would not need the BOP’s referral. 

In December 2018, the FSA opened opportunities for anyone in federal prison to request compassionate release. As has been the case with all prison reform, it took years to implement the changes. I suspect that changes will continue to evolve in the years to come. People should always expect the BOP to oppose requests for compassionate release under the First Step Act. But the law allows people to request relief from a sentencing judge.

The FSA is not a get-out-of-jail-free card. But at least it opens the door for a judge to consider whether continued incarceration is warranted.

Those who have read Earning Freedom: Conquering a 45-Year Prison Term may recall my strategy at the start of my sentence. I couldn’t conceive the meaning of a sentence requiring me to spend multiple decades in prison. I was 23 when authorities took me into custody. The law held that I would remain in prison longer than I’d been alive. 

Instead of asking for relief at the start of my term, I focused on building a positive record during my first ten years. During those first ten years, I wanted to document a story that would advance me as a candidate for relief. I set goals. By the time my first decade in prison passed, I intended to:

  1. Earn a university degree,
  2. Build a record showing contributions to society, and
  3. Build a strong support network that would be there to help me upon release.

By setting clear goals, I could focus my time. During the first decade, I earned bachelor’s and master’s degrees and became a published author. I didn’t have any disciplinary infractions. I was as ready as ever to begin my life in society. But I would have to serve another 16 years because the system did not offer mechanisms to consider me for release. The First Step Act did not exist.

Now it does. And now, the Supreme Court tells us that a judge can consider a person’s positive adjustment in prison.

There is hope in this message. People in prison should see hope and work toward advancing their candidacy for a better outcome. The key takeaways:

Keep a clean disciplinary record in prison,

Participate in programs that will qualify for Earned Time Credits,

Be strategic concerning the timing of a request for early release,

Be patient, expecting the BOP to be slow in carrying out the will of Congress,

Develop a comprehensive release plan to show a commitment to living as a law-abiding, contributing citizen.

Strive to build a record that would advance your prison-adjustment record as being “extraordinary and compelling.”

Sometimes this approach requires discipline and discretion. A person with a sentence of five years may want to set a realistic time frame before requesting early release or transition to home confinement. A person must read the signs, using critical-thinking skills to assess how stakeholders will view him as a candidate for relief.

Understand that although the First Step Act authorizes a person to request compassionate release, it doesn’t mean that a judge will grant a request. The person should always think from the perspective of the stakeholder. 

What seeds can you begin sowing today that will advance your candidacy for relief later in the weeks, months, and years ahead?

That question should prompt the decisions you make.

Incidentally: Each week, I’m writing content with hopes of apprising people of what we’re learning from the work we’re doing with our nonprofit, Prison Professors. If you haven’t done so already, I encourage you to send an invite to the following email:

[email protected]

Prison Professors

32565 Golden Lantern Street, B-1026

Dana Point, CA 92629

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