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March 3, 2023

Former BOP director talks up need for second step to follow up FIRST STEP Act

Hugh Hurwitz, who served as Acting Director of the Federal Bureau of Prisons from May 2018 to August 2019, has this notable new Hill commentary headlined "First Step Act was only half the job; now a ‘Second Step’ is needed." It is worth reading in full, and here are  excerpts:

The First Step Act (FSA) was a landmark achievement in the area of criminal justice reform.  It came at a time of partisan politics and a divided Congress and was the only significant bi-partisan legislation passed during the Trump administration....  I had a unique viewpoint at this time: I was Acting Director of the Bureau of Prisons (BOP) during the negotiations and ultimate passage of the FSA....  But how successful is it?  I argue it was a small start, hopefully, on the way to something bigger.

The FSA had two primary goals: 1) to reduce the overcrowded prison population in the BOP and 2) to provide incentives for people in prison to take recidivism reducing programs which will increase the likelihood that they will succeed upon their release and not return to prison.  In my opinion, the FSA succeeded wildly in number 1, and failed miserably in number 2.  So, in short, yes, we definitely need something bigger: a second step.

While up-to-date data has not been made available, it appears that somewhere between 10,000 and 20,000 people have already been released early under the FSA, with thousands more in the queue.  BOP is still calculating how people earn time credits, and they continue to release more in batches.  Based on those numbers alone, it is hard to argue that the FSA was not successful in reducing the prison population.

The primary incentive offered under the FSA is time credits for completion of recidivation reducing programs. Application of these time credits will allow some people to complete their sentence early and transfer to supervised release, and others to transfer early to halfway houses or home confinement.  The problem with the FSA is that while it incentivizes people to take recidivism reducing programs, the only people eligible for the coveted time credits are those already deemed to be minimum- or low-risk for recidivating.  Said another way, only people assessed as minimum- and low-risk for recidivism are eligible to earn time credits leading to early release. But those are not the people we should be incentivizing to take recidivism reducing programs.  The ones who truly need these programs are those deemed to be of medium or high risk of recidivating.  Aren’t those the people we should be focusing on?  But the FSA does not allow these people to earn time credits....

Let me be clear: I am not saying the FSA is a bad law.  On the contrary, it has resulted in increased program opportunities and other changes to our federal prison system, and it has reduced the number of people in federal prisons.  What I am saying is that the need for a Second Step is great, as people deemed medium or high risk of recidivating are released without the benefit of critical recidivism reducing programs.

About 95 percent of the people currently in our nation’s prisons will be released to our communities. They will be our neighbors.  Isn’t it imperative that we do all we can to ensure that upon release they have the skills, tools, and resources to be productive, law-abiding members of society?  We need Congress to act now, in another bi-partisan effort, to pass laws that will ensure everyone incarcerated today is incentivized and given access to programs that will help reduce their recidivism risk.

March 3, 2023 at 10:24 AM | Permalink



Posted by: federalist | Mar 3, 2023 1:08:17 PM

"About 95 percent of the people currently in our nation’s prisons will be released to our communities. They will be our neighbors. Isn’t it imperative that we do all we can to ensure that upon release they have the skills, tools, and resources to be productive, law-abiding members of society?"

What's imperative is that they have a conscience, empathy, and full, robust respect for the rights, property and well-being of the people around them. If they have these things, almost all the rest will take care of itself. If they don't, it doesn't matter what we do -- they're still going to be criminals.

Posted by: Bill Otis | Mar 4, 2023 12:46:21 AM

The Acting Director as part of the BOP had years to implement a an incentive program which was part of the Second Chance Act to achieve the goals that are not part of the First Step Act. See 34 U.S.C. 60541(1)(g), (2). Under that section states:
(a)In general
The Attorney General, in coordination with the Director of the Bureau of Prisons, shall, subject to the availability of appropriations, conduct
the following activities to establish a Federal prisoner reentry initiative:

(1)(g) provide incentives for prisoner participation in skills development program;
(2) Incentives for a prisoner who participates in reentry and skills development programs which may, at the discretion of the Director, include—
(A)the maximum allowable period in a community confinement facility; and (B)such other incentives as the Director considers appropriate (not
including a reduction of the term of imprisonment).

Despite this mandatory language to setup an incentive program which has been repeatedly authorized under the Second Chance Act, the BOP sat on their hands and did nothing. The BOP had the opportunity to create an incentive program, but like everything else failed to do so. Congress stepped in and did something. While the program may not have gone enough, the BOP still has authority under the above sections of the law to add to the program.

Posted by: Nuline Legal | Mar 4, 2023 6:33:01 AM

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