The First Step Act’s Misstep: Why the First Step Act Violates Prisoners’ Rights to Equal Protection

69 Am. U. L. Rev. F. 233 (2020).

*Executive Editor, American University Law Review, Volume 70; J.D. Candidate, May 2021, American University Washington College of Law. Thank you to the following people for helping me make this Comment a reality: Elizabeth Davis, Note and Comment Editor, American University Law Review, Volume 69, for her endless optimism and support; Professor Stephen Wermiel, for fostering my interest in constitutional law and serving as my faculty advisor for this piece; the Law Review staff, for dedicating their time and hard work to improve the piece; and my family, for encouraging me in my academic and professional endeavors.

December 21, 2018 marked a significant achievement in modern criminal justice reform: the First Step Act of 2018, designed to help reverse negative consequences of mass incarceration in the United States, became law. A primary feature of the First Step Act is an earned time credits system that allows eligible prisoners to reduce the length of their incarceration by participating in rehabilitative programs. Concerned that early release of some prisoners might endanger the public, lawmakers debated prisoner eligibility for this system through the last days of the law’s development, and ultimately excluded sixty-eight groups of prisoners from eligibility based on their convictions.

These decisions—like any government action that results in different treatment of similarly situated individuals—required compliance with the government’s constitutional obligation to provide equal protection under the laws. However, Congress did not perfectly comply with this mandate in designing the First Step Act. The Act excludes all prisoners convicted for offenses under 18 U.S.C. § 32 from eligibility for earned time credits, while it allows prisoners convicted under 18 U.S.C. § 2291—a nearly identical statute—the opportunity to receive the credits. As this Comment explains, this decision cannot survive constitutional scrutiny, and Congress must reexamine the earned time credits eligibility provisions to ensure its efforts to improve the criminal justice system do not jeopardize prisoners’ constitutional rights.

“Prison walls do not form a barrier separating prison inmates from the protections of the Constitution.”

—Justice Sandra Day O’Connor¹

“[The First Step Act] will not allow dangerous, violent criminals to be released early. That is pure fiction.”

—United States Senator John Cornyn²

Introduction

On December 7, 2007, a jury found David Cain Jr. guilty of sixteen counts of racketeering activity and related offenses.³ During the trial, the government presented evidence that Cain, once the owner of a tree-trimming and logging business in New York, recruited and directed people to intentionally destroy or steal his competitors’ property to force the competitors out of business.⁴ The resulting crimes included three arsons for which the jury convicted Cain, one of which targeted an airplane and its hangar at a local airport⁵ in violation of 18 U.S.C. § 32.⁶ Following the jury’s verdict on the charges against Cain, the court sentenced Cain to a fifty-five year sentence.⁷

About three years later, on November 24, 2010, a jury convicted Abdi Wali Dire on charges⁸ for his involvement in an attack on the USS Nicholas while the ship was on a counter-piracy mission on the Indian Ocean.⁹ In an attempt to seize the vessel to later negotiate a ransom, Dire and two others attacked the ship by firing AK-47 assault rifles at its crew, who successfully defended against the attack and captured Dire.¹⁰ The government charged Dire with committing an act of violence against persons on board a vessel¹¹ in violation of 18 U.S.C. § 2291,¹² for which the judge sentenced Dire to twenty years of incarceration.¹³

In 2018, the statutes that Cain and Dire violated became part of Congress’s discussion about a long-awaited criminal justice reform bill. The resulting law—the First Step Act of 2018¹⁴ (the First Step Act or “the Act”)—aims to reduce federal incarceration levels while maintaining public safety,¹⁵ in part through earned time credits that allow eligible prisoners to obtain early release from prison.¹⁶ In finalizing the bill, Congress decided that prisoners serving sentences for § 32 and § 2291 crimes should have different eligibility criteria for earned time credits.¹⁷ Under the law that resulted from these decisions, Cain is ineligible for the credits, while Dire is eligible as long as the conduct leading to his conviction did not put anyone at substantial risk of death or serious bodily injury.¹⁸

Dire’s conduct undoubtedly involved such a risk,¹⁹ making him ineligible for earned time credits. For other current or future inmates who receive sentences for § 2291 violations, however, the nature of their conduct might be the difference between remaining behind bars or being released. Meanwhile, inmates serving time for § 32 violations—despite the nearly identical nature of § 32 and § 2291—lack such opportunities under all circumstances.²⁰

This Comment argues that the First Step Act’s eligibility provisions for earned time credits violate the Fifth Amendment’s guarantee of equal protection of federal laws by arbitrarily limiting eligibility for prisoners with separate but substantively identical underlying convictions as other eligible prisoners.²¹ The equal protection principle of the Fifth Amendment requires the federal government to have a rational basis for treating similarly situated groups of prisoners differently²²—which Congress lacked in differentiating between two groups of prisoners under the First Step Act. With implementation of the earned time credits system underway,²³ and as demands for expanded criminal justice reform continue,²⁴ confronting unconstitutional provisions within the Act is essential to ensuring that the Act achieves its intended goals.

Part I of this Comment provides relevant background on (1) the First Step Act and the earned time credits system that it established; (2) two criminal statutes—18 U.S.C. § 32 and § 2291—on which eligibility for earned time credits is based; (3) the U.S. Constitution’s guarantee of equal protection of the laws; and (4) the standard of review that courts apply to prisoners’ assertions of violations of their constitutional rights, along with cases in which parties have challenged sentencing laws on equal protection grounds. Part II argues that the First Step Act’s eligibility provisions for earned time credits violate the equal protection principle of the Fifth Amendment because they are not rationally related to any legitimate government interest.

I. Background

The First Step Act’s earned time credits allow eligible prisoners the significant benefit of reducing their time behind bars.²⁵ As a result, eligibility for the credits was a key issue throughout the First Step Act’s development and resulted in compromises between lawmakers about how to classify federal prisoners for eligibility.²⁶ This Part provides a brief history of the First Step Act, including the development of the earned time credits system within it, and discusses two criminal statutes that the Act uses to classify prisoners for earned time credits eligibility. This Part also describes the constitutional principle of equal protection and discusses cases in which courts have analyzed equal protection claims in the context of prisoners’ rights.

A. First Step Act of 2018

For about three decades beginning around 1980, Congress passed several laws that “consistently made federal criminal justice significantly more punitive.”²⁷ This trend was largely a response to growing concerns about illicit drug use in the United States,²⁸ along with a “shift in sentencing philosophy and practice . . . [toward] a more determinate and more punitive direction.”²⁹ Based at least in part on post-1980 punitive criminal justice laws, the federal prison population increased from 24,260 in 1980 to 185,617 in 2017,³⁰ contributing to the United States’ status as the country with twenty-five percent of the world’s prisoners, despite representing only five percent of the world’s population.³¹

The federal government’s “tough on crime” approach had some undesirable consequences. First, the rise in incarceration rates was costly: while the annual adjusted-for-inflation cost of incarceration per federal prisoner remained nearly constant between 1980 and 2010, the number of people incarcerated drove a significant increase in government spending for corrections, which “outpaced budget increases for nearly all other key government services . . . including education, transportation, and public assistance.”³² Second, a focus on punishment through lengthy prison sentences diminished other potential responses to crime, such as rehabilitation³³—a tradeoff that research suggests might further exacerbate the costs of the criminal justice system.³⁴ Third, policies emphasizing incarceration disproportionately affected minorities;³⁵ for instance, between 1980 and 2010, the imprisonment rate for Blacks was at least 4.6 times the imprisonment rate for whites.³⁶ Finally, while passage of tougher criminal laws coincided with a declining crime rate, the laws’ impact on that decline was modest.³⁷

By 2010, Congress had become more open to a new type of reform aimed at combatting the negative effects of mass incarceration.³⁸ Eight years later, on December 21, 2018—following a 2010 law with a narrow scope,³⁹ failed attempts at subsequent legislation,⁴⁰ and extensive compromise by lawmakers in finalizing the law that eventually passed⁴¹—President Donald Trump signed the First Step Act of 2018 into law.⁴²

Through the First Step Act, Congress intended to resolve some of the problems within the criminal justice system,⁴³ but not at the expense of public safety.⁴⁴ These dual goals shaped the debate around the Act’s provisions on eligibility for earned time credits,⁴⁵ which allow prisoners who participate in recidivism reduction programs to apply the time spent in such programs to transition from prison to prerelease custody or supervised release.⁴⁶ The earned time credits system was a contentious element of the Act among legislators due to the payoff that the system can provide to prisoners; debates about the system ultimately contributed to Congress’s decision to exclude several groups of prisoners from earned time credits eligibility.⁴⁷

In its final form, the Act excluded sixty-eight groups of prisoners from the earned time credits system based on the criminal statute that they violated.⁴⁸ Among the prisoners who are ineligible for earned time credits under the Act are those convicted of crimes under 18 U.S.C. § 32, “relating to [the] destruction of aircraft or aircraft facilities,”⁴⁹ and 18 U.S.C. § 2291, “relating to the destruction of a vessel or maritime facility, but only if the conduct that led to the conviction involved a substantial risk of death or serious bodily injury.”⁵⁰ The next section discusses the provisions and history of these sections of the U.S. criminal code.

B. Convictions Under 18 U.S.C. §§ 32, 2291

Section 32 of 18 U.S.C. provides criminal penalties for interfering with the safe operation of aircraft or aircraft facilities.⁵¹ The statute imposes a fine, imprisonment for up to twenty years, or both on anyone who willfully performs acts such as “set[ting] fire to, damag[ing], destroy[ing], disabl[ing], or wreck[ing] any aircraft . . . or any appliance or structure” used to operate, maintain, or store the aircraft; interfering with the operation of aircraft in flight; and other related acts, including conspiracy to commit the prohibited acts.⁵²

Congress enacted § 32 in 1956 in response to a plane crash near Longmont, Colorado resulting from the explosion of a time bomb in luggage on the airplane.⁵³ Federal lawmakers were concerned that then-existing legislation was insufficient to address the magnitude of the criminal conduct that led to the Longmont incident.⁵⁴ Congress modeled § 32 after an existing statute related to the destruction of trains in an effort to cure the deficiencies they saw in the criminal code related to violent conduct on airplanes.⁵⁵

While the statute was a response to a tragedy that occurred when an aircraft was in flight, resulting in the deaths of forty-four people—and while several provisions of the statute include likelihood of harm to individuals as an element⁵⁶—the statute also criminalizes destruction or disabling of stationary aircraft or aircraft facilities from which no substantial risk of or actual injury or death results.⁵⁷ This prevented the petitioner in United States v. Cain,⁵⁸ David Cain Jr., from successfully arguing that § 32 did not apply to his actions because the aircraft that he destroyed was not in flight at the time of its destruction.⁵⁹ Cain, a business owner in upstate New York, led a series of arsons and other acts intended to intimidate his competitors and force them out of business.⁶⁰ One arson targeted a 1949 vintage airplane that belonged to Cain’s competitor; the aircraft “erupted in flames inside its hangar” after Cain and the aircraft’s owner had a disagreement.⁶¹ There is no record of physical injuries resulting from the fire or indication that it involved substantial risk of death of or serious bodily injury to any person.⁶² Nonetheless, the court upheld the application of § 32 to Cain’s conduct.⁶³ The court’s interpretation of the statute underscores the statute’s broad prohibition of destruction of or damage to aircraft or aircraft facilities in any form, regardless of whether risk of death or serious bodily injury is substantial.

Similar to § 32, § 2291 criminalizes the destruction of vessels or maritime facilities or violent acts on board vessels.⁶⁴ Congress enacted § 2291 when it passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Improvement and Reauthorization Act of 2005⁶⁵ to support the federal government in combatting terrorism.⁶⁶ Section 2291 imposes fines, prison sentences for up to twenty years, or both on individuals who knowingly destroy vessels or equipment used to operate, maintain, or store the vessel; interfere with the operation of maritime facilities; or perform other related acts, including conspiracy to commit the prohibited acts.⁶⁷

Section 2291 “harmonize[d] the somewhat outdated maritime provisions [of the U.S. criminal code] with the existing criminal sanctions for destruction [of] or interference with an aircraft or aircraft facilit[y]” in § 32,⁶⁸ thus largely mirroring § 32’s substantive provisions.⁶⁹ In this vein, the conduct that § 2291 prohibits is broad in scope and includes any type of interference with vessels or maritime facilities.⁷⁰ In reality, most § 2291 charges have arisen from acts of piracy that involved substantial risks to those on board the targeted vessels.⁷¹ This was the case in United States v. Dire,⁷² a case that arose when Abdi Wali Dire and his co-defendants attacked a U.S. Navy vessel on the Indian Ocean with AK-47 assault rifles, attempting to seize the vessel and secure ransom.⁷³ But § 2291 also prohibits acts that are less dangerous to human life or safety than Dire’s were, and it would prohibit individuals from setting fire to stationary vessels as Cain did with his competitor’s aircraft.⁷⁴

Between FY1994 and FY2016, approximately sixty individuals were convicted of offenses under § 32, and approximately eight individuals were convicted under § 2291.⁷⁵ Of those convicted under the two statutes, most received sentences to terms of imprisonment without any probation.⁷⁶ The total federal prison population as of March 2019 of 221,000 individuals⁷⁷ indicates that sixty-eight convictions for offenses under § 32 and § 2291 between FY1994 and FY2016 is a small percentage of the criminal convictions at large that would have occurred during that timeframe. Even so, the individuals serving sentences for violations of these statutes have the same rights as all prisoners within the criminal justice system, including the equal protection of the laws.⁷⁸

C. Equal Protection Principle of the Fifth Amendment

The Fifth Amendment provides that no person shall be “deprived of life, liberty, or property, without due process of law.”⁷⁹ While not explicitly stated, the Fifth Amendment forbids the federal government from denying “any person within its jurisdiction the equal protection of the laws,”⁸⁰ just as the Fourteenth Amendment forbids such actions by the states.⁸¹ The command that the federal government guarantee equal protection of the laws to those in its jurisdiction “is essentially a direction that all persons similarly situated should be treated alike.”⁸² Courts define “similarly situated” as alike “in all relevant respects.”⁸³

The legislature is responsible for determining whether different people are similarly situated for the purposes of a law and has wide latitude in making such decisions.⁸⁴ Unless the basis for different treatment under a law is one that the Supreme Court has deemed “suspect” or “quasi-suspect,” such as race or gender, courts will uphold classifications within legislation that are rationally related to legitimate government interests.⁸⁵ This analysis is referred to as the “rational basis test.”⁸⁶

D. Equal Protection Challenges to Sentencing Laws

In Turner v. Safley,⁸⁷ the Court established that prisoners’ claims of violations of their constitutional rights are subject to the rational basis test.⁸⁸ Turner involved two regulations at a Missouri prison, one of which did not allow prison inmates to marry unless there was a “compelling” reason for doing so, and the other which limited the exchange of mail correspondence between inmates.⁸⁹ The lower courts applied strict scrutiny analysis—a higher standard than the rational basis test that requires classifications to be narrowly tailored to achieve a compelling government interest—to the prisoners’ claims; the courts held that the provisions were unconstitutional, finding that neither regulation was “the least restrictive means of achieving the security [and rehabilitation] goals of the regulation[s].”⁹⁰

However, the Supreme Court held that the lower courts applied the wrong test to determine whether the regulations violated the prisoners’ constitutional rights.⁹¹ Rational basis scrutiny of prisoners’ rights is the appropriate analysis, the Court explained, because the judiciary is “ill equipped to deal with the increasingly urgent problems of prison administration and reform,” which are a better match for the legislative and executive branches of government.⁹²

In applying rational basis scrutiny to laws or regulations that prisoners argue are unconstitutional, courts should consider four factors: (1) whether the connection between the law and the government’s interest is “valid [and] rational” or rather so remote that the law can only be seen as arbitrary or irrational; (2) whether prisoners can exercise their rights through alternative means if the law remains intact; (3) the impact that accommodating the prisoners’ asserted rights would have on prison resources, guards, and inmates; and (4) whether the government can achieve its goal with means beyond the law.⁹³ Applying these factors, the Court upheld the correspondence regulation at issue in Turner but held that the marriage regulation was unconstitutional.⁹⁴

Under the framework the Supreme Court articulated in Turner, prisoners’ equal protection challenges to sentencing laws almost invariably fail. In resolving prisoners’ equal protection claims, courts have recognized various types of classifications of prisoners through sentencing laws that are rationally related to legitimate government interests and constitutional under rational basis review.⁹⁵

Criminal statutes routinely classify convicted defendants and treat classes differently based on the nature of the conduct that led to their convictions, as is evident by different crimes carrying different penalties. Hence, not surprisingly, the seriousness of an underlying offense has served as sufficient basis for several laws that classify individuals in the sentencing context.⁹⁶ In Robinson v. Deloach,⁹⁷ an Alabama state inmate challenged the Alabama Correctional Incentive Time Act⁹⁸ (ACITA), alleging that its eligibility scheme for sentence reductions violated the equal protection clause of the Fourteenth Amendment.⁹⁹ Under the ACITA, eligible prisoners in Alabama institutions may receive reductions from the terms of their sentences for good behavior in prison.¹⁰⁰ However, prisoners who are sentenced to terms of more than fifteen years are ineligible for such reductions.¹⁰¹ As an inmate sentenced to a term of imprisonment for more than fifteen years, the petitioner in Robinson was ineligible for the reductions.¹⁰² The court rejected the equal protection claim based on “well settled” law that the ACITA’s eligibility provisions are “rationally related to the legitimate state interest of preventing the early release of serious offenders.”¹⁰³ Robinson demonstrates that different treatment of prisoners who have varying sentences corresponding with crimes of varying severity in the eyes of the legislature is acceptable to courts under the rational basis test.

In reviewing sentencing laws that classify prisoners based on their conviction type, courts have emphasized that the legislature is not required to draft laws that perfectly achieve the legislature’s goal; lawmakers may exclude prisoners from sentence reductions even if such prisoners argue they should be eligible.¹⁰⁴ In Jones v. Bruce,¹⁰⁵ the petitioner challenged the denial of his petition to convert his sentence under the Kansas Sentencing Guidelines Act¹⁰⁶ (KSGA), which allowed some prisoners to modify the sentences they received prior to the KSGA’s enactment.¹⁰⁷ The petitioner, who alleged he was not violent or dangerous to the public but was ineligible for the sentence modification, argued that conversion of his sentence would promote the legislature’s stated goal of easing prison overcrowding while not jeopardizing public safety.¹⁰⁸ According to the court, however, rational basis review does not turn on “whether the legislation perfectly accomplishes its goals but whether the legislation was prompted by a legitimate goal and whether there is a rational basis for the classification.”¹⁰⁹ Thus, over-inclusiveness or under-inclusiveness is not fatal to a law that classifies prisoners for sentencing in an effort to balance prison conditions with public safety.¹¹⁰

Beyond the nature of prisoners’ underlying offenses, courts have upheld classifications based on other criteria, including whether prisoners are serving life sentences, in reviewing sentencing laws.¹¹¹ In addition to his claim related to the ACITA, the petitioner in Robinson also challenged a different statute that did not allow him to petition for a sentence reduction because he was not serving a life sentence, despite him being a nonviolent offender as required by the statute for sentence reductions.¹¹² The court rejected the petitioner’s argument that he must be afforded the same opportunity for a sentence reduction as prisoners serving life sentences, reasoning that the eligibility requirements were rationally related to the state’s interest in ensuring equitable sentencing for prisoners who had been sentenced to life under previously mandatory guidelines.¹¹³ Hence, when there is a fundamental difference in the nature of a sentence—in other words, a life sentence versus a sentence for a precise number of years not intended to last a lifetime—the government has a rational basis for treating prisoners serving such sentences differently.

Another legitimate government interest that courts have recognized in reviewing sentencing laws is reducing sentencing disparities for repeat criminals who commit crimes while on parole. Kansas v. Perez¹¹⁴ involved a provision of the KSGA that allowed some parolees who had been sentenced under old sentencing guidelines to reduce their sentences based on the new guidelines.¹¹⁵ The provision applied to parolees who committed crimes while on parole for which they were convicted and sentenced; such parolees could ask a court to reduce the sentence for the prior crime and have it run concurrently with the sentence for the subsequent crime.¹¹⁶ In contrast, parolees who did not commit crimes while on parole, but rather violated the terms of their parole, could not receive such a sentence reduction.¹¹⁷ The petitioner moved for a sentence conversion under the KSGA after violating the terms of his parole.¹¹⁸ The lower court denied his motion, and the Supreme Court of Kansas affirmed.¹¹⁹

The court explained that parolees who committed crimes while on parole after the passage of the new sentencing guidelines were differently situated from parolees who violated the terms of their parole.¹²⁰ The first group would be subject to two sentencing schemes—one for the prior crime under the old sentencing guidelines, and one for the new crime under the new guidelines.¹²¹ The second group, even if they returned to prison because of their parole violations, would not receive new sentences and thus would not encounter two separate sentencing schemes.¹²² Therefore, the Kansas legislature’s different treatment of these groups was “rationally related to the KSGA’s goals of consistency and proportionality, as well as public safety, by diminishing the disparity in sentences where the disparity would most prominently appear.”¹²³ Perez suggests that distinguishing between parolees based on whether they simply violate the terms of their parole or instead commit new substantive crimes is rationally related to legitimate penological goals.

Collectively, these cases establish several legitimate government interests—including protecting the public from offenders of serious crimes, treating prisoners serving life sentences fairly, and minimizing sentencing disparities for repeat criminals—that legislators might seek to achieve through sentencing schemes that treat prisoners differently. All statutory provisions that the plaintiffs challenged in these cases prevailed under the courts’ application of rational basis scrutiny.

II. Analysis

The First Step Act’s eligibility provisions for earned time credits are the product of government decisions regarding which prisoners are eligible to receive earned time credits and have an opportunity to obtain early release and which prisoners are not.¹²⁴ The Constitution requires that the government have a sufficient basis for treating these groups of federal prisoners differently.¹²⁵ This Part explains why the equal protection principle of the Fifth Amendment applies to earned time credits eligibility and the basis for an equal protection claim by a § 32 prisoner who is ineligible for earned time credits. This Part then argues that the First Step Act’s provisions on earned time credits eligibility for § 32 and § 2291 prisoners fail the rational basis test because they lack any rational relationship to legitimate government interests. Finally, this Part highlights a policy consideration for whether lawmakers should base federal prisoners’ eligibility for incentives like earned time credits on the nature of their convictions.

A. The Eligibility Requirements for Earned Time Credits Under the First Step Act Invoke the Equal Protection Principle by Classifying Similarly Situated Groups Differently

The First Step Act treats prisoners convicted under 18 U.S.C. § 32 and § 2291 differently by specifying different circumstances under which the prisoners are eligible for earned time credits.¹²⁶ Ineligibility of § 2291 prisoners requires a triggering condition—that the conduct leading to the conviction involved substantial risk of death of or serious bodily injury to another person¹²⁷—while ineligibility of § 32 prisoners lacks that condition.¹²⁸ As a result, prisoners who are serving sentences for violating § 32 and whose conduct did not involve substantial risk of death or serious bodily injury are ineligible for earned time credits,¹²⁹ while prisoners serving sentences for § 2291 violations whose conduct was of the same character are eligible.¹³⁰ Thus, if the prisoners are similarly situated, the Act’s eligibility provisions that apply to them only comport with the equal protection principle of the Fifth Amendment if a rational basis for treating the groups differently exists.¹³¹

The statutory scheme, plain text, and legislative history of § 32 and § 2291 demonstrate that prisoners convicted under those statutes whose conduct leading to their convictions was of a similar nature are similarly situated. As a preliminary matter, both statutes appear within the same title of the U.S. Code that proscribes conduct that Congress has deemed a criminal offense. Unlike the individuals that the court compared in Perez—the petitioner, who had violated the terms of his parole, and other parolees who committed substantive crimes while on parole¹³²—prisoners convicted under § 32 or § 2291 have all committed a substantive crime. Further, individuals found guilty of § 32 or § 2291 crimes are subject to the same range of punishments: a fine, imprisonment for not more than twenty years, or both.¹³³

Sections 32 and 2291 both consist of a series of provisions specifying proscribed actions related to damage to or destruction of property employed in travel and commerce.¹³⁴ Each statute prohibits several similar categories of conduct related to that property. Specifically, both statutes include some provisions covering conduct that involves endangerment of human life or safety and some that do not.¹³⁵ The First Step Act acknowledges this variable with respect to § 2291 by subdividing prisoners sentenced under that statute and basing earned time credits eligibility on whether the conduct leading to the conviction “involved a substantial risk of death or serious bodily injury.”¹³⁶

The plain text of § 2291 confirms the existence of a basis for this distinction. For example, the government might prosecute an individual for violating § 2291 by “mak[ing] or caus[ing] to be made unworkable or unusable . . . any vessel, or any part or other materials used or intended to be used in connection with the operation of a vessel.”¹³⁷ Someone might violate this provision by removing or tampering with a component of the vessel that is essential for its operation, thereby preventing the vessel from departing.¹³⁸ Separately, an individual is subject to prosecution under § 2291 for “interfer[ing] by force or violence with the operation of any maritime facility . . . if such action is likely to endanger the safety of any vessel in navigation.”¹³⁹ The text of this clause indicates that the provision would not apply unless the perpetrator used violence and the vessel or vessels affected by the individual’s conduct were in motion, thus with people on board.¹⁴⁰ The situation contemplated by the former provision is less likely to involve substantial risk of harm to human life or safety than the situation that would invoke the latter provision. Thus, the First Step Act’s eligibility scheme for prisoners convicted under § 2291 reflects realistic distinctions in conduct leading to such convictions.

The text of § 32, as in § 2291, reflects provisions that differ with respect to whether the proscribed conduct endangers human life or safety. Section 32 covers conduct related to “any aircraft in the special aircraft jurisdiction of the United States or any civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce.”¹⁴¹ Aircraft within the “special aircraft jurisdiction of the United States” are defined as aircraft that are in flight.¹⁴² Hence, any conduct that § 32 describes, if performed in relation to an aircraft within the special aircraft jurisdiction of the United States, necessarily involves substantial risk of death or serious bodily injury to those on board the aircraft. However, courts have interpreted the second category of aircraft to which § 32 conduct applies as including aircraft that are not necessarily in flight at the time of the conduct.¹⁴³ Hence, if the conduct leading to conviction under § 32 involved a “civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce,” the conduct would not necessarily have posed risks to human life or safety.¹⁴⁴

For example, the government might charge an individual with violating § 32 if the individual “disables . . . any civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce” that is not in flight at the time the individual acts.¹⁴⁵ Just as someone might tamper with a stationary vessel and make it incapable of operation, a person could tamper with equipment in a stationary aircraft at its storage location to prevent it from operating. Either scenario poses a limited, if any, risk of death or serious bodily injury to anyone.¹⁴⁶ David Cain Jr.’s role in the destruction of his competitor’s vintage airplane by arson,¹⁴⁷ while a more extreme example, also qualifies as a § 32 violation in which the underlying conduct did not involve substantial risk of death or serious bodily injury, as nobody was on board or near the stationary airplane in its hangar at the time it burst into flames.¹⁴⁸

The legislative history of § 32 and § 2291 also suggests that Congress viewed individuals who commit crimes under those statutes as similarly situated. While Congress passed the two laws nearly fifty years apart,¹⁴⁹ the laws had the shared purpose of combatting violent acts in transportation settings, whether an incident like the Longmont, Colorado explosion on a commercial airline¹⁵⁰ or the 9/11 terrorist attacks.¹⁵¹ This shared intent for the laws shows that the textual similarities between § 32 and § 2291 are no accident: recognizing that the federal government lacked sufficiently punitive laws related to conduct on vessels, Congress intentionally modeled § 2291 after § 32.¹⁵²

The inclusion of § 32 and § 2291 in the federal criminal code, textual parallels between the two statutes, and legislative history of each law suggest that prisoners serving sentences for violations of either statute whose conduct did not involve a substantial risk of death or serious bodily injury are similarly situated. Therefore, the equal protection principle applies to the earned time credits eligibility provisions for prisoners serving sentences under § 32 and § 2291, and the provisions must comport with rational basis requirements.

B. The First Step Act’s Earned Time Credits Eligibility Provisions Fail the Rational Basis Test and Violate the Fifth Amendment’s Guarantee of Equal Protection

No existing cases that have considered equal protection challenges to sentencing statutes can be used to justify the First Step Act’s dissimilar treatment of prisoners serving sentences under § 32 and § 2291. The Act’s provisions on these prisoners’ eligibility for earned time credits are not rationally related to the government interests that have been recognized in prior cases.

Convictions under § 32 and § 2291 can be equally as serious—or “harmless”—with respect to human safety. As the numerous provisions within each statute demonstrate, conduct leading to conviction under either statute might be tremendously dangerous to other people and necessarily involve substantial risk of death or serious bodily injury—such as Abdi Wali Dire’s attack of a Navy vessel with gunfire in United States v. Dire¹⁵³—or it might involve the disabling of an aircraft or vessel under less risky circumstances—such as David Cain Jr.’s setting fire to a stationary aircraft while it sat unoccupied in its hangar in United States v. Cain.¹⁵⁴

Congress equated the seriousness of crimes under § 32 and § 2291 by incorporating identical punishments for the crimes.¹⁵⁵ Unlike Robinson, in which the prisoners that the statute treated differently were serving sentences of different maximum lengths for crimes of varying severity,¹⁵⁶ individuals imprisoned for violations of § 32 and § 2291 may be serving identical sentences for conduct involving equal risk of death or serious bodily injury or lack thereof. The court in Robinson easily identified a rational relationship between the decision to foreclose sentence reductions to prisoners serving sentences for more serious offenses and the goal of maintaining public safety when releasing prisoners.¹⁵⁷ If a prisoner sentenced under § 32 for conduct that did not involve a substantial risk of death or serious bodily injury challenged the First Step Act’s earned time credits eligibility provisions, the reviewing court would not be able to draw the same conclusion to justify the First Step Act that the court in Robinson drew to uphold the ACITA.

Beyond serving as a proxy for the potentially equal seriousness of the crimes, the identical punishment provisions for convictions under § 32 and § 2291 also preclude justifying different treatment by the nature of the sentence, as the Robinson court did in resolving the petitioner’s second claim.¹⁵⁸ While the Alabama legislature’s decision to make sentence reductions available to prisoners who had been sentenced to life imprisonment under previously mandatory guidelines was rationally related to the desire to achieve more equitable sentencing for the state’s prisoners,¹⁵⁹ no such argument can be made for offering different opportunities to prisoners serving identical sentences.

The holding in Perez, which upheld different sentencing treatment of parolees based on actions they commit while on parole, does not apply to the First Step Act’s provisions that classify prisoners for earned time credits availability based on their original crime.¹⁶⁰ In Perez, the court explained that parolees serving sentences for prior crimes can be given different opportunities to reduce their sentences based on whether they commit a crime while on parole or merely violate the terms of their parole.¹⁶¹ In contrast, two prisoners that face sentences for distinct substantive crimes—one under § 32 and one under § 2291—should have the same opportunities to reduce their time in prison assuming they are also similarly situated in all other material respects.

To defend its different treatment of § 32 prisoners and § 2291 prisoners, the government might argue that the exception to earned time credits ineligibility for § 2291 that it carved out would never apply to § 32 prisoners. To make this argument, the government would need to demonstrate that some convictions under § 2291 might not involve a substantial risk of death or serious bodily injury, while all convictions under § 32 will.¹⁶² Only some of the provisions of § 2291—those that do not include as an element substantial likelihood of risk to human life or safety¹⁶³—would cover such circumstances.

Here is where the problem with this argument would arise: the provisions of § 2291 that contemplate conduct that does not involve substantial risk to human life or safety also appear in § 32.¹⁶⁴ By arguing that § 2291 applies in situations with no such risks, the government must simultaneously acknowledge that § 32 applies in similar situations. Hence, the government cannot defend an exception for § 2291 prisoners’ ineligibility by asserting that the exception would be applicable for them but inapplicable for § 32 prisoners.

To counter this analysis, the government might further contend that while some § 32 provisions do not facially require substantial risk of death or serious bodily injury, the conduct these provisions proscribe would implicitly involve such harm. Using David Cain Jr.’s conviction as an example,¹⁶⁵ the government could argue that arson that targets an aircraft is necessarily more dangerous to human life or safety than arson that targets a vessel, and that Cain’s arson of his competitor’s aircraft endangered the lives of the people who, for example, attempted to put the fire out. But an arson of a vessel would be equally, if not potentially more, dangerous due to the size of vessels—like those belonging to the U.S. Navy, the subject of Dire.¹⁶⁶ Thus, any implicit substantial risk of death or serious bodily injury that the provisions of § 32 include would also necessarily be encompassed by the parallel provisions of § 2291.

Application of the factors that the Supreme Court articulated in Turner v. Safley¹⁶⁷ underscores the failure of the First Step Act’s earned time credits eligibility provisions to overcome rational basis scrutiny. As discussed, it is difficult to discern a rational connection between the eligibility provisions for § 32 and § 2291 prisoners and the government’s interest in balancing rehabilitation opportunities for prisoners with public safety.¹⁶⁸ Prisoners to whom the First Step Act denies earned time credits are unable to exercise their rights through other means, as the Act is the first of its kind to establish such a system. Furthermore, accommodating § 32 prisoners’ asserted rights to earned time credits if their conduct is similar to the conduct that makes § 2291 prisoners eligible would not significantly impact criminal justice system resources for two reasons: (1) § 32 prisoners are eligible to participate in recidivism reduction programs regardless of whether they can earn time credits from participation; and (2) the small number of § 32 prisoners who might be eligible for transition to prerelease custody or supervised release would have a negligible impact on the prison system’s monitoring of individuals in these environments. Finally, the government can arguably best ensure a balance between rehabilitation opportunities for prisoners and public safety by reallocating resources from incarcerating all § 32 prisoners to monitoring those prisoners as they transition out of incarceration and into a different type of sentence.

The rational basis test requires the most deference to the legislature of any other equal protection review.¹⁶⁹ But the test does not require courts to turn a blind eye to arbitrary legislative decisions or oversights in lawmaking that threaten individuals’ constitutional rights,¹⁷⁰ like the earned time credits eligibility provisions under the First Step Act for § 32 and § 2291 prisoners.

C. Denying Some Prisoners the Same Opportunities as Others Based on Underlying Convictions Might Have Only a Minimal Impact on Recidivism

Even if the government could overcome the equal protection issues discussed in this Comment by arguing that § 32 prisoners are categorically more dangerous than prisoners who are eligible for earned time credits, its decision to limit eligibility to only the least dangerous prisoners who it views as capable of rehabilitation might be flawed.¹⁷¹

A prisoner’s eligibility for earned time credits requires that the risk and needs assessment system has determined that the prisoner has a low risk of recidivating, or that a prison warden has determined that the prisoner is unlikely to recidivate.¹⁷² Congress’s exclusion of some prisoners from eligibility represents its belief that those prisoners are incapable of ever obtaining a status as unlikely to recidivate.¹⁷³ However, data suggests that “effectively reducing recidivism requires focusing programs, jobs, and real and meaningful incentives [to rehabilitate] on those most likely, not least likely, to reoffend.”¹⁷⁴

As long as criminal justice reform limits rehabilitation incentives for a significant number of prisoners—based on their status as a violent offender or other criteria like immigration status¹⁷⁵—it may be unlikely to reduce recidivism. Thus, setting aside any legal issues with the First Step Act’s earned time credits eligibility provisions, it might be worthwhile for Congress to further consider the policy debate and available research on the benefits of focusing rehabilitative programs on offenders of more serious crimes.¹⁷⁶

Conclusion

The First Step Act represents a bipartisan agreement on needed changes to the criminal justice system and a compromise that many thought was impossible.¹⁷⁷ Concerns about public safety reasonably arose as lawmakers considered offering some prisoners the significant benefit of reducing their time in prison.¹⁷⁸ Basing earned time credits eligibility for § 2291 prisoners on whether their conduct posed substantial risks of death or serious bodily injury appears to be a logical consequence of public safety concerns. However, by not making the same distinction for prisoners serving sentences for violating § 32, the government has unconstitutionally treated one group of prisoners differently than another without a rational basis.

Individuals who have been convicted of crimes under § 32 and § 2291 are similarly situated in all material respects. They have all committed crimes that Congress has written into the U.S. criminal code,¹⁷⁹ rather than breaking other rules such as parole requirements. The statutes’ text and cases interpreting the statutes show that conduct that does not pose a substantial risk of death or serious bodily injury is possible within the context of each, and thus that the underlying conduct could involve equally minimal harm to others.¹⁸⁰ The range of punishment for acts under each statute is identical.¹⁸¹ Therefore, the various arguments that courts upheld as justifications for other sentencing schemes are insufficient to support the constitutionality of the First Step Act provisions that this Comment discusses.

Furthermore, the specific arguments that the government would likely put forth to frame the equal protection issue in this context would also be inadequate. The government cannot reasonably argue, and a court could not find, that § 32 offenses are inherently more dangerous than § 2291 offenses without ignoring the textual parallels between the two statutes. The extremely small percentage of federal prisoners who are serving sentences for § 32 convictions precludes reliance on the argument that the First Step Act’s earned time credits eligibility provisions are permissibly imperfect by including too few people in its earned time credits eligibility scheme.

The First Step Act’s unequal treatment of prisoners convicted under § 32 and § 2291 is arbitrary, contravening the equal protection principle of the Fifth Amendment. As momentum for criminal justice reform continues, Congress must protect the constitutional rights of the prisoners to which potential reforms apply and continue to consider the effectiveness of its policy of foreclosing rehabilitative opportunities to prisoners deemed too hopeless to save.

The First Step Act’s Misstep: Why the First Step Act Violates Prisoners’ Rights to Equal Protection

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