By Joe Luppino-Esposito | Due Process Institute | Director, Rule of Law Initiatives
One year after the signing of the First Step Act, there are so many reasons to celebrate, though more still needs to be done to fulfill the law’s promise.
Let’s consider what the First Step Act has accomplished in just one year. Several components of the law reduce the sentences for thousands of inmates by merely enforcing the spirit of existing laws passed by Congress. The law also provides for more merciful treatment of elderly and terminally ill prisoners who would benefit from supervised release or at home medical care, as well as those who have terminally ill loved ones at home who need the prisoner’s care. Female prisoners are given relief in two specific ways: entirely and permanently banning shackling during pregnancy and providing menstrual products at no charge. In addition, the Bureau of Prisons (BOP) must place prisoners in facilities as close to their residence as practicable—in the least, within 500 driving miles. The Bureau must also assist prisoners in getting proper identification and applying for certain benefits as they re-enter society. By expanding the Second Chance Act, wardens are also required to do more work with outside organizations to reduce recidivism through programming. Additionally, changes to what Federal Prison Industries can sell in the marketplace will increase job skills opportunities for prisoners.
The “good time credit” adjustment had the largest, most immediate impact in 2019. Good time credit is the amount of time earned by an inmate for displaying “exemplary compliance” with prison rules that can reduce an inmate’s sentence by a certain amount each year. For decades, BOP has interpreted federal law in a way that permitted prisoners to claim only 47 days of credits per year, despite the plain language of the statute providing for 54 days of credit. (Our friends at FAMM have an excellent FAQ on good time credit.) By clarifying the language of the existing federal statute, the First Step Act made “54” mean “54” and the prison sentences of 3,100 individuals ended in July when they finally received the credit for the seven days per year they have improperly been denied prior to the First Step Act.
Another significant impact of the First Step Act came from adjustments to federal prison sentences relating to those sentenced for certain drug offenses. The Fair Sentencing Act of 2010–the most recent significant federal criminal justice reform prior to the First Step Act–lowered the unfairly punitive crack and powder cocaine sentencing regimes for all future federal cases, but the First Step Act finally made those reductions retroactive. The First Step Act retroactivity provision freed roughly 2,200 individuals who were still unjustly incarcerated under old laws that Congress changed almost a decade ago.
The First Step Act wasn’t only about addressing the sins of the past: it also implemented new ways of dealing with the aging population behind bars. The Elderly Offender Home Confinement Pilot Program improves on previous programming by lowering the age of eligible nonviolent prisoners from 65 to 60, thus permitting them to finish out their sentences under home supervision. There are now almost 350 people who have participated in that program since the passage of the First Step Act.
Another improvement came in the reforms to the compassionate release program. Compassionate release is the practice of letting terminally ill and other qualifying individuals go home at the end of their lives or otherwise be taken care of by family members. It may also include those prisoners who are the primary caretaker for a loved one who is terminally ill. In the previous system, the BOP implemented its own onerous criteria for approving releases which allowed them to reject most requests, or to delay them indefinitely, and left the prisoner with no right to appeal. The First Step Act outlined clear standards for what conditions and circumstances qualify someone for compassionate release in line with existing statutory language. The First Step Act also mandates that the BOP assists inmates and their families with the application process and provides inmates and their families a right to expedite the process if BOP is not sufficiently responsive. As we approach the end of 2019, there have been over 100 compassionate releases this year.
According to #cut50, the accumulated time of First Step Act reforms adds up to 17,000 years of life returned to formerly incarcerated individuals. That’s quite a first step, indeed.
There has also been significant progress on administering the other First Step reforms in the federal system. To its credit, the BOP shifted resources to ensure that the $75 million appropriated annually to the First Step Act was applied this year to help get the necessary changes up and running. Additionally, 31,700 BOP employees have received mental health awareness training.
With that said, there’s still a lot more work to be done before we can call this first step complete.
The biggest and most important incomplete First Step item is the establishment of the risk and needs assessment system. This assessment is called the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN) and is focused on determining the risk of recidivism for prisoners from intake until release, with the hope of seeing improvement of that risk. This would be accomplished thanks to the “needs” part of the assessment, taking into account what each individual prisoner requires to take him or her off the path of recidivism and instead towards successful re-entry into society. With this data, the hope is that BOP will be able to identify and provide the type and scope of programming that should be made available to each individual prisoner. In turn, prisoners are incentivized to complete these programs because they can work towards earned time credits which will increase time in pre-release custody. Depending on each prisoner’s risk level, this might be time in a halfway house or home confinement rather than a prison, in order to help ease the transition from incarceration to freedom.
Although the Independent Review Commission is active and initialreporting is finished, there is more hard work to be done. Without the risk and needs assessment system in place, it will be difficult for BOP to determine the programming that will best suit those who are incarcerated. From that we’ve seen in the state prison systems, the range of potential programming is considerable: it can include education, anger management, substance abuse treatment, and job skills development. Although initial progress has been made in setting up this system, its completion and meaningful implementation is imperative to instituting the best programming for inmates.
Congress is not done yet, either. Upcoming budgets need to support Congress’s authorization of funding the First Step Act with an appropriation of those dollars. BOP has taken up more and more of the DOJ’s budget each year, and funding shifts like the one BOP managed this year cannot be relied on in the future. The best way to make sure these programs are funded is direct appropriation. The Due Process Institute urges Congress to include this funding in its ongoing budget negotiations.
The Due Process Institute will continue to track the progress of the First Step Act. The passage and signing of the bill were significant, but the ongoing work to realize the law’s potential is critical. Despite the current environment of partisan rancor on Capitol Hill, the anniversary of the First Step Act is a reminder that when activists, stakeholders, and legislators dedicate themselves to doing the right thing, #BipartisanWorks. We also look forward to continuing to work together with legislators and other criminal justice allies on both sides of the aisle to identify the next steps in criminal justice reform in the new year.
You can follow our continuing work on the First Step Act on Twitter using #FirstYearFirstStep.