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January 5, 2022

Highlighting the challenging issues of implementing the FIRST STEP Act's earned time credits

Walter Pavlo has this extended new Forbes piece detailing some of the nettlesome issues that surround implementation of various parts of the FIRST STEP Act. The piece is headlined "Implementation Of The Criminal Justice Reform Law, First Step Act, Will Likely End Up In Court," and here are excerpts:

President Donald Trump signed one of the most sweeping criminal justice reform laws, The First Step Act (FSA), into law on December 21, 2018.  Since then, its interpretation has been debated and argued, mostly behind closed doors in Washington, on how to fully implement it.  One lesser defined part of FSA is whether or not those in custody within the Federal Bureau of Prisons (BOP), could earn credits for participation in classes and meaningful activities in order to get time reduced off of their sentence.  COVID’s wrath on the BOP slowed FSA implementation but we are on the cusp of discovering the extent of the law’s effects on those currently incarcerated....

By January 24, 2022, the BOP is under a mandate to have the FSA fully implemented.  Under the FSA, prisoners who successfully complete recidivism reduction programming and productive activities are eligible to earn up to 10 days of FSA Time Credits for every 30 days of program participation.  Minimum and low-risk classified prisoners who successfully complete recidivism reduction programming and productive activities and whose assessed risk of recidivism has not increased over two consecutive assessments are eligible to earn up to an additional 5 days of FSA Time Credits for every 30 days of successful participation.  However, prisoners serving a sentence for a conviction of any one of multiple enumerated offenses are ineligible to earn additional FSA Time Credits regardless of risk level.  It is complicated.

Many of the BOP’s facilities are understaffed and pressures of COVID combined with prisoner lockdowns has led many institutions to suspend or delay many of the programs that could have counted toward FSA credits.  Now an internal memorandum posted at some prison camps across the country is causing a stir because of how sweeping the FSA may be for prisoners.  The memo stated [with caveats and exclusions]: "Under the First Step Act of 2018 (FSA), eligible inmates may earn Federal Time Credit (FTC) for successful participation in Evidence-Based Recidivism Programs and Productive Activities.... Inmates are now eligible to earn FTC retroactively back to December 21, 2018; this award will be based on criteria established by BOP."...

Far from clarifying things, the implementation of FSA, based on this limited amount of information, will be almost impossible over the near term.  This affects multiple levels of the criminal justice system; prisons, halfway houses, home confinement and supervised release.  It is an intricate web of agencies that manage the incarceration and supervision of hundreds of thousands of people in the federal criminal justice system.

Those in prison want to be out of the institution.  With many programs suspended in institutions, prisoners have been looking to “Productive Activities,” like a job in the prison, as a means to gain FSA credits.  However, interpretation of that term has been the subject of discussion ever since FSA was passed.  The list of program classes eligible for credit is limited and the hours associated with each one must be based on a need assessment of the prisoner.  It is unknown how a BOP case manager can look back until 2018 for classes (programs) that did not even exist because there was no FSA until December 2018.  In order for “Productive Activities” during the time frame of 2018-2021, it must mean that the BOP is interpreting a broad definition of the term ... I know the prisoners’ interpretation....

Indeed, there will be many prisoners on January 15, 2022 who are being detained unlawfully if the law comes into effect on that day and they are still incarcerated ... that is going to happen.  Thousands will file lawsuits whether they are in prison, halfway houses, home confinement or supervised release, fighting for their right to a broadly defined, and subject to BOP discretion, FSA credit.  Rather than Trump’s FSA being a law, it is going to be subject to interpretation by judges across the country.

While this information is welcome news to those incarcerated, it is also a monumental task for BOP case managers.  Case managers are primarily responsible for moving inmates from prison to halfway houses and home confinement.  It requires a tremendous amount of paperwork and coordination, often taking months.  There is also the additional issue of capacity at halfway houses and monitoring.  This is going to be more complicated than anyone ever imagined.

January 5, 2022 at 04:30 PM | Permalink


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