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’Connor¹Turner v. Safley, 482 U.S. 78, 84 (1987).

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

—United States Senator John Cornyn²164 Cong. Rec. S7642 (daily ed. Dec. 17, 2018) (statement of Sen. Cornyn).