Trump Wouldn't Be Eligible for Earned Time Credits Under the First Step Act
The Ex-President Faces 31 Counts for an Offense Excluded from the Benefits of the 2018 Law
One of the main features of the First Step Act was recidivism reduction. Incarcerated individuals could complete programming designed to reduce their risk of recidivism after leaving prison. As an incentive, they could earn time credits to serve some of their sentence in a halfway house or in home confinement. Now, only individuals who are classified as minimal and low risk can cash in their earned time credits. This is separate from good time credit, which existed prior to the First Step Act.
Although more time and data are needed, the recidivism rate for individuals released under the First Step Act is 12.4 percent. That’s low, and it’s something that those of us who worked on the law should be proud of. However, roughly 43 percent of incarcerated individuals aren’t eligible for earned time credits.
Incarcerated individuals who aren’t eligible for earned time credits fall into one of two categories—1) either they are deportable immigrants defined in 18 U.S.C. §3632(d)(4)(D) or because 2) they are incarcerated for one of the dozens of crimes excluded from earned time credits found in 18 U.S.C. §3632(d)(4)(B). Both provisions were included in the First Step Act.
Now, the exclusions for specific crimes were thought to be a political necessity. Many advocates were unhappy about how many were eventually included. Some were unhappy that there were any exclusions from the earned time credits at all. Those who were bothered by the exclusions felt that the risk and needs assessment used to determine an individual’s risk of recidivism would have placed him or her in the medium- or high-risk categories. While these individuals could still earn time credits, they couldn’t cash them in. There were 48 crimes listed in the original House-passed bill, H.R. 5682, and 68 crimes in the version that ultimately became law, S. 756.
While talking with my girlfriend over the weekend, I mentioned these exclusions to her and wondered out loud whether any of the crimes for which former President Trump has been charged fall were included. On the way to dinner tonight with some friends, I refreshed my memory.
Sure enough, the First Step Act has this: “(xv) Section 793, relating to gathering, transmitting, or losing defense information.” Trump has been charged with 31 counts of violating 18 U.S.C. §793(e). If Trump is convicted on any of those counts, he wouldn’t be eligible for earned time credits under the First Step Act. However, Trump would be eligible for elderly release into home confinement once he completes two-thirds of his sentence, excluding good time credit.