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December 5, 2019

"Who should oversee implementing the First Step Act?"

The question in the title of this post is the headline of this notable Hill commentary authored by Johanna Markind, who served as an assistant general counsel with the US Parole Commission from 2009 to 2014. Here are excerpts from the piece:

During a Nov. 19 Senate Judiciary Committee hearing, committee Chairman Lindsey Graham (R-S.C.) asked Bureau of Prisons (BOP) Director Kathleen Hawk Sawyer: How does the First Step Act differ from parole, and should the federal government reinstate parole?  With respect, the answers are: There’s no real difference, and it already has.  The issue that Sen. Graham implicitly raised is, who should run parole?

The groundbreaking First Step Act, enacted last December, authorizes early release of federal prisoners who have worked to reform themselves and are deemed low-risk.  The legislation requires BOP to perform a needs assessment on eligible prisoners and recommend programming for each.  The evidence-based programs are designed to reduce offenders’ risk of recidivism — that is, of returning to a life of crime — and increase their chances of successfully re-entering society.  Low-risk offenders who complete their programs are eligible for conditional early release (“home confinement”).

This is a reboot of parole.  Before parole was abolished in the federal system, effective 1987, the U.S. Parole Commission used to evaluate new prisoners, informally recommend programming such as drug treatment, and set tentative release dates.  As the proposed release date approached, the Parole Commission would re-evaluate the offenders in light of considerations, including whether they had completed recommended programming.  If it decided to release the prisoner, it would set release conditions.

A few years ago, an aide to one of the Senate co-sponsors of the First Step Act acknowledged to me that the risk-reduction/early release provisions are effectively parole by another name — albeit a new, improved version incorporating evidence-based practices developed during the intervening years.  To implement the act, the Department of Justice (DOJ) released a new risk-assessment tool (PATTERN) last July.

Unfortunately, as Sawyer admitted, BOP has yet to complete its needs-assessment tool. That could be because BOP is undermanned, as Sawyer testified. Recent coverage in The Hill has suggested the problem was that elements within DOJ are trying to undermine the act. Or, the problem could be that deciding when to release prisoners just isn’t what BOP and DOJ are institutionally designed to do.

Congress discovered a similar problem after it first authorized parole in 1910.  Parole was granted/denied at each federal prison by a board consisting of that prison’s warden, its doctor, and a Washington-based prison superintendent.  The system didn’t work very well, likely because prison wardens and superintendents were more focused on keeping prisoners in than on letting them out.  In 1930, Congress established a Board of Parole separate from the prison system. It, and its successor Parole Commission, oversaw parole until 1987....

BOP’s basic mission is “to protect society by confining offenders.”  Without a doubt, many BOP employees are sincerely working to comply with the act.  Nevertheless, deciding when and under what conditions to release offenders isn’t part of BOP’s mission.  If Congress wants the act’s release provisions implemented effectively, it should assign responsibility to an organization whose mission is consistent with that task.

A revamped Parole Commission is one option.  A rump Parole Commission still exists — it oversees release of prisoners sentenced for crimes committed before November 1987, and sanctions parole violations by that same population. It is naturally much smaller than it was when it oversaw parole for the entire federal prison population, but it could scale up.  To assist in that process, it could be given permission temporarily to rehire retired staff, just as Sawyer mentioned BOP is now doing.  Former Parole Commission staffers have a wealth of institutional memory and experience determining what programming offenders need to increase their chances for successful re-entry, as well as weighing the risks of releasing them.

Reviving the remnant Parole Commission is not the only way to implement the First Step Act effectively.  There are other options.  For example, Congress might create an agency for the purpose.  But, whatever Congress does or doesn’t do, history suggests that giving BOP the keys while charging it to bar the door is unlikely to produce optimal results.

Regular readers may recall this short article I penned a few years ago, titled "Reflecting on Parole’s Abolition in the Federal Sentencing System," in which I described the correction reform proposals then in Congress "as a kind of 'parole light'." Consequently, I think this author is spot on, particularly when she suggests players other than DOJ and BOP ought to be directly involved in FIRST STEP implementation.

Of course, there are many part of the FIRST STEP Act that extend beyond just providing for means for conditional early release, and thus a revamped Parole Commission would be, in my view, only one important part of ensuring the Act achieves its goals and potential.  We also need a well-functioning US Sentencing Commission, and one filled with Commissioners eager to give full and robust effect to all the the Act's ameliorative sentencing provisions.  I also think we need an entity tasked with and focused on addressing collateral consequences and other barriers to effective offender re-entry that can work to undermine whatever rehabilitative progress an offender may have made while serving a prison term.  (In another recent article, titled "Leveraging Marijuana Reform to Enhance Expungement Practices," I made the case for  new criminal justice institution, a Commission on Justice Restoration, that could proactively work on policies and practices designed to minimize and ameliorate undue collateral consequences for people with criminal convictions.)

December 5, 2019 at 10:37 AM | Permalink


I'm sorry the First Step act is not Parole or even Parole "Light" The most someone can go to "home confinement" is 6 Months to a Year" Parole in the State system would reduce many years if the Inmate was well behaved. Actual Parole is need to be reinstated in the Federal BOP especially for the non-violent "Drug Conspiracy" charges that Prosecutors have abused by charging most people with enhancements of "Maintaining a Premise (They all lived somewhere but did not just have the premise to deal drugs, but doesn't stop the Feds from enhancing you with that) and "Supervisory role" God forbid you have someone you were dealing with and asked them to go do the pickup, now you're a kingpin. These enhancements have been severely abused adding on average 5-7 extra years. Mind you, there people were sentenced for long periods of time, with No drugs ever found, all from "snitches" and estimated weights by snitches (so the snitches get less time) Since when in America can you convict someone with no evidence?!! How can you sentence someone by "Ghost drug weight" I'm appalled! When a person is sentenced for a Drug conspiracy with no transaction recorded or drugs found, and sentenced to 15-35 years (way more than a murderer or Rapist) there is seriously something wrong with our judicial system. I am horrified that someone can say they saw you with a Kilo of Cocaine and you will go to prison for more than 10 years on hearsay alone. People do not go to trial in Federal or the state system. It's a punishment because you will be found guilty and spend 40 years in prison without law enforcement doing any work to prove you are a "drug trafficker" Enough is enough, this "conspiracy" has to be backed up with evidence. It happens everyday, especially in Texas. Bring back Parole to the Federal system, and correct and dismiss these "conspiracy" sentences with no evidence other than words.

Posted by: Randy | Dec 5, 2019 12:26:45 PM

The First Step Act indeed is nothing like parole. And the BOP should not administer it. The BOP cannot adequately fund and staff the programs it has now and routinely pulls teachers and nurses to serve guard duty. The DOJ Inspector General has found gross inadequacies in its provision of basic mental health care and medical care. They can't keep out drugs and cell phones. It is the least transparent federal agency and the most incompetent.

Posted by: defendergirl | Dec 5, 2019 1:04:10 PM

Seriously - "To assist in that process, it could be given permission temporarily to rehire retired staff, just as Sawyer mentioned BOP is now doing. Former Parole Commission staffers have a wealth of institutional memory and experience determining what programming offenders need to increase their chances for successful re-entry, as well as weighing the risks of releasing them." Re-hire parole staff because they have a wealth of institutional knowledge - from 1987 - that's more than 30 years. Leave the supervision to the US Probation Office - who does in fact have a current and wealth of institutional knowledge. This is what is happening now anyway - no need to complicate matters.

Posted by: Atomicfrog | Dec 5, 2019 1:07:09 PM

After parole was abolished in the Federal system in 1987, it did (and does) still exist for so-called "Old Law" Federal inmates, those sentenced before parole was abolished. By 2010, there were only bout 200 or 300 such inmates remaining in the BOP. But the clever Congress did leave an entire parole system active and hidden in the wings, which could be resurrected, should Congress desire. D.C. inmates have continued to be parolable, after 1987 until the present day. Those determinations are made by the D.C. Parole Board, which has a fully functioning parole bureaucracy. If Congress decides to restore a parole system to the Federal criminal justice system, then it can use the existing bureaucracy of the D.C. Parole Board to facilitate it.

Posted by: James Gormley | Dec 5, 2019 3:18:09 PM

Mr. Gormley: The DC Parole Board was abolished. The US Parole Commission handles parole cases for DC inmates. The Parole Commission has its own flaws, but would be better than the BOP at deciding when to release people.

Posted by: defendergirl | Dec 6, 2019 10:07:14 AM

Can anyone recommend a nutshell primer summarizing the First Step Act? Not looking for advocacy or commentary, just a point-by-point summary of what it does.

Posted by: Def. Atty. | Dec 6, 2019 3:46:04 PM

FAMM Has a lot of helpful materials here: https://famm.org/our-work/first-step-act/

Posted by: Doug B. | Dec 7, 2019 12:10:07 AM

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