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July 19, 2019

Highlights from DOJ press release and fact sheet on FIRST STEP Act implementation

The US Department of Justice today released this press release titled "Department Of Justice Announces the Release of 3,100 Inmates Under First Step Act, Publishes Risk And Needs Assessment System."  Here are some highlights:

The Department of Justice today announced three major developments related to the implementation of the First Step Act of 2018 (FSA):

  • Over 3,100 federal prison inmates will be released from the Bureau of Prisons’ (BOP) custody as a result of the increase in good conduct time under the Act. In addition, the Act’s retroactive application of the Fair Sentencing Act of 2010 (reducing the disparity between crack cocaine and powder cocaine threshold amounts triggering mandatory minimum sentences) has resulted in 1,691 sentence reductions.
  • The prioritization of $75 million in existing resources to fully fund the FSA implementation from the 2019 budget. The Department will continue its work with Congress to ensure additional funding is appropriated for FY2020 and future years.
  • The publication of the FSA Risk and Needs Assessment System (RNAS) that will help identify all federal prison inmates who may qualify for pre-release custody by participating in authorized recidivism reduction programming and/or productive activities....

Compassionate Release. The BOP updated its policies to reflect the new procedures for inmates to obtain “compassionate release” sentence reductions under 18 U.S.C. Section 3582 and 4205(g). Since the Act was signed into law, 51 requests have been approved, as compared to 34 total in 2018.

Expanded Use of Home Confinement. The FSA authorizes BOP to maximize the use of home confinement for low risk offenders. Currently, there are approximately 2,000 inmates on Home Confinement. The legislation also expands a pilot program for eligible elderly and terminally ill offenders to be transitioned to Home Confinement as part of a pilot program. Since enactment of the law, 201 inmates have qualified to be transitioned under the pilot program.

Drug Treatment. The BOP has always had a robust drug treatment strategy. Offenders with an identified need are provided an individualized treatment plan to address their need. About 16,000 BOP inmates are currently enrolled in drug treatment programs, including the well-regarded Residential Drug Abuse Program (RDAP).....

The Risk and Needs Assessment Tool – PATTERN

The Attorney General’s publication of a risk and needs assessment system was a key requirement of the FSA, signed into law by President Trump on Dec. 21, 2018. The publication of the RNAS report makes the changes in the law to good conduct time effective.

The RNAS is among several robust measures the Department has taken to implement the FSA, which seeks to reduce risk and recidivism among the prison population and assist inmates’ successful reintegration into society.  The new system will be used to assess all federal inmates for risk and identify criminogenic needs that can be addressed by evidence-based programs, such as drug treatment, job training, and education. The system was developed in consultation with the FSA-established Independent Review Committee (IRC), the BOP, the National Institute of Justice (NIJ), the Administrative Office of the U.S. Courts, the National Institute of Corrections, and over two dozen stakeholders groups.

The new tool to be used by the BOP is called the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN). PATTERN is designed to predict the likelihood of general and violent recidivism for all BOP inmates. As required by the FSA, PATTERN contains static risk factors (e.g. age and crime of conviction) as well as dynamic items (i.e. participation or lack of participation in programs like education or drug treatment) that are associated with either an increase or a reduction in risk of recidivism. The PATTERN assessment tool provides predictive models, or scales, developed and validated for males and females separately.

The PATTERN assessment, modeled specifically for the federal prison population, achieves a higher level of predictability and surpasses what is commonly found for risk assessment tools for correctional populations in the U.S.

The RNAS report will be available on the department’s website later today at www.nij.gov.

The RNAS will be subject to a 45-day study period beginning with the publication of the System. Starting Monday, July 22, the public may send comments to FirstStepAct@ojp.usdoj.gov. This study period allows stakeholders to review and analyze the System. After the study period, NIJ will hold a special listening session on the RNAS in early September.

In addition DOJ has released this First Step Act Implementation Fact Sheet, and here is one highlight therefrom:

I. Retroactive Application of Fair Sentencing Act (Crack: Powder)

The Act’s retroactive application of the Fair Sentencing Act of 2010 (reducing the disparity between crack cocaine and powder cocaine threshold amounts triggering mandatory minimum sentences) has resulted in 1,691 sentence reductions

July 19, 2019 at 02:32 PM | Permalink


Professor Berman,

I want to start off by thanking you for providing detailed and current information about sentencing law and BOP matters in general. As a practicing attorney who regularly represents individuals in post-conviction motions I find your blog to be one of the more informative general resources for new developments. I have read your blog for a number of years and also regularly recommend it to attorneys looking for this type of information.

However, I think you should know that the BOP's claims about implementing the FIRST STEP Act faithfully are pretty disingenuous at best. For example, by delaying the roll out of the additional Good Conduct Time Credits ("GCT") [the 7-day fix] the BOP has really hurt those prisoners who were closest to their release date.

I can tell you that our office has heard from dozens of inmates who were about to head to either a halfway house or home confinement that the BOP is now simply going to shorten the amount of time the inmate spends in pre-release custody. I recall one particular inmate who has been incarcerated for something like 15 years telling me that he previously was going to spend 4 months in a halfway house at the end of his BOP sentence so he could acclimate to life outside of correctional environment. Now, he is going to get zero halfway house time or at most 2 weeks; this is because his 15 year sentence means he receives 105 days GCT, which in turns shortens his custodial sentence by 3.5 months.

Had the BOP simply fixed the GCT math problem back in December or January these inmates would have been able to get their BOP PRISON sentences shortened rather than losing their very limited time in the Halfway House or home confinement.

This is just one of the many ways that the on the ground reality of the FIRST STEP Act implementation is at odds with the publicly stated position of home DOJ. If you ever want to discuss these issues in more detail feel free to email me. I apologize for posting such a lengthy response, but I think it is important for leading members of the legal community to get both sides of the story.

Posted by: Zach Newland | Jul 19, 2019 3:18:58 PM

Thanks, Zack. I realize that FIRST STEP implementation has not been smooth in many ways — e.g., those who get RDAP credit seem to be losing the benefit of the good time fix. Thanks for sharing your story... I hope others will, as well.

Posted by: Doug B. | Jul 19, 2019 3:28:57 PM

Professor Berman,

Thank you for the kind and timely response. One more thing I think you might be interested to know about. BOP is telling inmates that they must serve 2/3rds of their entire sentence day for day (or straight time) before they can be considered eligible for the elderly offender home detention program. This is despite the fact that inmates have a recognized liberty interest in their good conduct time once earned.

Good conduct time is used to calculate discharge dates and all other types of eligibility.

There are many inmates who would otherwise be eligible but for the BOP taking this confusing stance on how to qualify for the EOHD program. Just thought I would share what we are told. Have a nice weekend

Posted by: Zach Newland | Jul 19, 2019 7:17:54 PM

Thank again, Zach. I know some folks are working to get BOP to change its views on this issue, but it is another example of BOP being problematically stingy.

Posted by: Doug B | Jul 19, 2019 9:09:36 PM

Why is it that BOP seems to want to act as yet another, independent punitive institution? If Congress or DOJ tells them to let people out of prison, it's not their problem if they do, yet they fight it tooth and nail. Are they afraid they will run out of prisoners and stop being overcrowded? And then lose funding?

Posted by: Fat Bastard | Jul 22, 2019 1:28:16 PM

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