Sam Bankman-Fried was sentenced to 25 years in federal prison for his fraud and conspiracy convictions — but he will probably spend less than 60 percent of it, or roughly 15 years, in an actual prison. Bankman-Fried thus may serve a significantly smaller percentage of his sentence than the thousands of immigrants convicted each year for crossing the border do. This disparate treatment is unjust.
Bankman-Fried will likely receive this sentence reduction through the First Step Act. Signed by then-President Trump in 2018, the First Step Act gives some federal inmates the opportunity to shave years off their sentences. If an inmate meets the law’s qualifications, they are entitled to 15 days of “earned time credit” for every 30 days they serve. One year of that credit goes toward ending the sentence early, and the rest goes toward moving from prison into a halfway house or home confinement. If federal prisoners receive all possible earned time credit, on top of the 54 days of “good time” credit they can get each year, they will serve only about 207 days in prison for every year of their sentence. For example, Theranos founder Elizabeth Holmes, who was sentenced last year to 11 years and three months in prison, will likely serve a little more than six years.
This is a major benefit to white-collar defendants like Bankman-Fried. Unfortunately, immigrant defendants with a deportation order cannot receive earned time credit — and they make up a significant portion of federal defendants. Since the early 2010s, the most commonly charged federal crime has been reentering the United States after deportation. Between 10,000 and 25,000 immigrants are charged with this crime every year, depending on the presidential administration.
While unlawful reentry is a victimless crime that simply involves entering the U.S., a conviction can carry up to 20 years in federal prison. The average sentence for unlawful reentry in 2022 was 13 months, but many of the sentences are much higher. And more than 99 percent of the defendants in these cases are from Latin America.
The First Step Act has thus created a federal prison system that discriminates by immigration status. One of the largest classes of federal defendants, which is almost entirely made up of Latin Americans, serves a much higher portion of their sentences. A deported immigrant defendant with an 11-year sentence like Holmes’s would serve nine years rather than six. Adding to the injustice, the great majority of immigrant federal defendants (unlike Holmes and Bankman-Fried) are in prison for victimless crimes. They have not been convicted for defrauding billions from customers or investors, but merely for crossing the border.
This discrimination cannot be justified by arguing that the Bureau of Prisons should save its programming resources for U.S. citizens. The First Step Act does require that a prisoner participate in programming like drug treatment and other classes if the prison recommends them. But if such classes are unavailable or deemed unnecessary, the prisoner still earns 15 days off for every 30 days served. If the Bureau of Prisons chooses not to use programming resources on immigrants, that is its prerogative, but it should give them the same treatment other prisoners receive.
The First Step Act’s system of earned time credit is a major step toward a more humane criminal justice system. It provides prisoners like Bankman-Fried with hope that they will be able to return to the community sooner, and an incentive to spend their time in prison productively.
It should not be denied to the tens of thousands of Latin American immigrants we imprison for reentering the United States. Congress should end this discrimination. And if it will not, federal judges should reduce immigrants’ sentences to correct the disparity.
Eric Fish is a law professor at the University of California, Davis. Previously, he was a federal public defender.