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February 7, 2019

Another review of the bad mess surrounding the "good time" fix in the FIRST STEP Act

I have done a few prior FIRST STEP Act implementation posts here and here focused on the problems with immediate application of its "good time" fix.  This recent Mother Jones article, fully headlined "Trump’s One Real Bipartisan Win Is Already Turning Into a Mess: Confusion and division over a provision in the First Step Act has left thousands of well-behaved inmates in limbo," effectively explains the issue and reports on the latest state of affairs. Here are excerpts:  

The law stipulates that prisoners can use these credits to shave off as many as 54 days from their sentences each year, up from 47 days previously — a change that also applies retroactively. Before the measure passed, criminal justice reform advocates estimated it would allow about 4,000 people to get out of prison quickly, perhaps even in time for the winter holidays. Before the measure passed, criminal justice reform advocates estimated it would allow about 4,000 people to get out of prison quickly, perhaps even in time for the winter holidays.

Lawmakers speaking in private to advocacy groups were reportedly clear that the credits would be recalculated right away — in order to take immediate effect — according to activists I spoke with who were involved in discussions about the bill on Capitol Hill and at the White House leading up to its passage. “There’s no doubt what the intent was,” says Jessica Jackson Sloan, national director of #cut50, an organization that seeks to reduce the prison population and that lobbied hard for the bill. “This stuff was debated ad nauseam publicly on the floor of the Senate,” adds Holly Harris, executive director of the Justice Action Network. “Legislative intent is very clear.”

On December 22, just one day after the First Step Act was signed, Vivek Shah, a federal prisoner in Chicago, tested that theory. He filed a habeas corpus petition in federal court seeking his immediate release from confinement because of the new rule on good-time credits. But in early January, US District Judge Sharon Johnson Coleman denied his request, saying that the law did not actually allow for his release until a later date. Technically, she wrote in her decision, the First Step Act stipulates that these extra credits can’t be doled out to inmates until after the Justice Department develops a risk and needs assessment program, a process that could take more than seven months, according to a deadline that she notes was laid out in the law.

Advocacy groups quickly shot back. The risk assessment, they argue, is specifically intended to help prisons figure out which inmates can spend extra days in halfway houses—a completely different point unrelated to determining which inmates can shave off time for good behavior. “There’s literally nothing in the good-time credits that has anything to do with the risk and needs assessment,” says Erin Haney, a policy director at #cut50. “These are people who are in good standing and have been given 47 days, and it just has to be recalculated to 54 days.”

The discrepancy in the policy’s interpretation seems to be a result of lawmakers putting the provision about good-time credits in a section that deals with the risk assessment program, a fact Judge Coleman notes in her ruling. Activists from the group FAMM, which advocates for families of incarcerated people, have suggested this was a legislative drafting error given the previous assurances about speedy recalculation of credits. “Everyone, including us, missed this mistake in the bill,” says Molly Gill, vice president of policy at FAMM. “We have notified lawmakers of the problem and asked them to fix it.”

To address the issue, lawmakers could pass a rider clarifying that good-time credits should be recalculated immediately, Gill says, or the DOJ could issue an administrative directive ordering the Bureau of Prisons not to delay the process.

But when contacted by Mother Jones, several lawmakers who co-sponsored the legislation declined to comment on the record about whether it was a drafting mistake or their intent to make well-behaved inmates wait for the risk assessment program. Taylor Foy, a spokesman for Sen. Chuck Grassley (R-Iowa), who helped craft the law and chaired the Judiciary Committee when it was passed, said it was not an error. “The text of the bill has been around for quite a while. It shouldn’t be a surprise,” Foy said, adding that Grassley hopes the risk assessment can be developed as quickly as possible. Sen. Dick Durbin (D-Ill.), one of the Democrats who championed the bill, declined to comment about his interpretation of the provision, as did Reps. Hakeem Jeffries (D-N.Y.) and Doug Collins (R-Ga.), who were crucial in drafting the legislation.

The Bureau of Prisons appears to be on the same page as Grassley. “We know that inmates and their families are particularly interested in the changes regarding good conduct time,” it said in a statement to Mother Jones. “While this change may result in additional credit for inmates in the future, it is not effective immediately nor is it applicable to all inmates.” The agency added that it would wait until “the risk and needs assessment system is issued by the Attorney General.” It did not say whether it had provided guidance on the matter to individual prisons, but at least two facilities sent the same statement to inmates in January, according to advocacy groups.

The Bureau of Prisons is likely in a holding pattern for the near future, since any directive about the First Step Act would “need the cooperation of the attorney general, which is what makes the Barr hearing so critical,” says Harris of the Justice Action Network, referring to William Barr, Trump’s nominee for the position. During his Senate confirmation hearing, Barr said he had “no problem” reforming the prison system and would “faithfully implement the law,” but his record of tough-on-crime rhetoric raises questions about the extent to which he would intervene to help inmates get out sooner....

Matters were made even more complicated over the past month because of the record-making government shutdown. Lawmakers have largely been consumed by the impacts of the shutdown and negotiations over border security, while the Justice Department furloughed workers and delayed its development of the risk assessment program during those weeks. “So the long and short of it is that prisoners will end up waiting at least seven months, and likely longer, before they can get their sentences reduced with the extra good time promised under the First Step Act,” says Gill....

In the meantime, those 4,000 prisoners who hoped to be out for the holidays remain stuck behind bars waiting for answers. “Many inmates…are disappointed that nothing is happening,” an incarcerated man at the Federal Prison Camp in Duluth, Minnesota, wrote to me during the shutdown, speaking generally about the First Step Act’s implementation. “There’s nothing more urgent than freedom,” adds Haney.

Prior related posts:

February 7, 2019 at 11:27 AM | Permalink


Delay (not defeat) snatched from the jaws of victory (and freedom).

Posted by: James Gormley | Feb 7, 2019 12:46:30 PM

Didn't some marijuana dealer sentenced to life get out early and get nailed for selling fentanyl?


Posted by: federalist | Feb 7, 2019 7:51:40 PM

Are you talking about this story, federalist?

Feds say they've cracked prison drug network: https://www.post-gazette.com/news/crime-courts/2019/02/02/Feds-cracked-prison-drug-ring-pittsburgh-pennsylvania-noah-Landfried/stories/201902030042

Interesting that, according to the report, a number of the folks involve in drug dealing were in prison. Seems to show that sending someone to prison does not stop them from being able to commit certain types of crimes. I found notable the report that the lead defendant "got life in federal prison in 2010" but "ended up serving less than eight years." I hope to find out what enabled such a drastic reduction in the sentence. The Drug -2 guideline change would not seem to allow such a big sentence reduction, and I am not sure what other basis there would be for such a huge sentence reduction.

Posted by: Doug B | Feb 7, 2019 9:32:34 PM

The story about Noah Landfried (marijuana offender with a life sentence) was part of a speech given by Senator Tom Cotton at the National Association of Narcotics Officers. It was interesting that he said that Noah Landfried, a marijuana offender was released from his life sentence because of "Obama leniency changes"

Obama's administration did not have any initiative that would give sentencing relief to a marijuana offender with life. I was curious and plowed through the Obama Clemency's to see if that was the reason for the release. Mr.Landfried's name was not on the list of those who received clemency from Obama.

Now I have to speculate about why Mr Landfried was released. The only conclusion I can reach is that he received an administrative release from the doj for cooperation in a drug investigation into drugs coming into the bop.

January 8 2019, Mr. Landfried was indicted on a federal charge for a drug conspiracy that distributed drugs in federal prison. Now I have to speculate, but he could have been indicted for conspiring with those he had given information about for his early release.

It's interesting that Senator Cotton used this in his speech and that there was an attempt to make it the responsibility of Obama's leniency. That is clearly not true. Landfried's release most likely could only be facilitated by the DOJ.

Mr. Cotton may have been given this perplexing and improbable information by the Association he was addressing. At the event, Mr. Cotton also received the National Association of Narcotic's Officers Member of the Senate Award.

Posted by: beth | Feb 8, 2019 1:20:18 PM

Beth, I share your suspicions here, though it seems possible that Landfried was eligible for modification thanks to the Drug -2 guideline change, and then got a further reduction due to cooperation. I am hoping there will be more objective information about this case emerging so we can better understand what happened.

Posted by: Doug B | Feb 9, 2019 10:34:39 AM

Well - a little checking - he was not a marijuana only offender with life. He did not go to trial which is always a red flag. He had a plea deal and they dropped the cocaine and ecstasy charges. His sentence was reduced twice, first to 312 months and then to 117. The conspiracy also distributed heroin. It would be interesting to know why he was released.

Posted by: beth | Feb 9, 2019 6:17:19 PM

Thanks for the additional info, beth, and I am still curious about each of these major reductions. Assuming it was based on cooperation, we should think about whether he was incentivized to continued drug dealing so he would have information to trade for an early release.

Posted by: Doug B | Feb 11, 2019 9:29:32 AM

Yes, and then indicted for the conspiracy? Very strange. He cooperated when he got the life sentence.

Posted by: beth | Feb 11, 2019 4:26:40 PM

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