U.S. Senators Dick Durbin and Chuck Grassley sent a letter to Attorney General Merrick Garland seeking answers about the delays and mistakes associated with the implementation of the First Step Act.
The First Step Act (FSA) was one of the most sweeping pieces of criminal justice reform in decades. Signed into law by President Donald Trump in December 2018, the law allowed eligible inmates, those with an unlikely chance of recidivism and low or minimum security, to earn credits toward an earlier release from prison. Those credits were to be earned by prisoners participating in certain needs-based educational programs and actively participating in productive activities, like a prison job. For every 30 days of successful participation, the prisoner could earn up to 15 days off their sentence up to a maximum of 12 months (365 days). That is what the law states, but the BOP added a new wrinkle stating that those with short sentences, who are also more likely to be minimum or low security, will get no benefit of an earlier release.
At the beginning of 2022, the BOP quickly reacted to a Federal Register publication of the final rule of FSA and many qualifying prisoners were released from prison, halfway houses and home confinement. Over the summer, the BOP sought to implement a more consistent way to calculate and award FSA credits but had to use an interim, manual calculation, to award the credits. It was not until October 2022 that the auto-calculator was put in place and now thousands of prisoners are complaining that they have not been awarded the credits they deserve. The result is that not only are people who should be released from prison are languishing there, but the BOP is being plagued with administrative remedy requests from inmates … many which will find their way into federal court.
Durbin/Grassley wrote, “We bring this to your attention to emphasize the need to ensure swift and consistent application of ETCs (First Step Act credits) to federal prisoner accounts without further delay. Although BOP has struggled to develop and implement consistent and fair policies to this effect, enough time has passed that further delay cannot be excused.”
The letter lays out specific issues that must be addressed by the BOP. First among them is a “Needs” survey that was supposed to trigger when a prisoner could begin accumulating the FSA credits that could be their ticket to an earlier release. The BOP did not even issue a formal program statement on the FSA needs assessment until June 25, 2021, which means that federal prisoners could not have been aware of the requirement of completing the needs assessment from January 2020 through June 2021. BOP itself reports that nearly half of staff interviewed for a March report indicated no familiarity with, or declined comment on, the needs assessment process and FSA incentives policies. Durbin/Grassley wrote that “… we strongly encourage you to reconsider this policy, and to put in place a policies that do not affect federal prisoners’ incentive to participate in valuable programming.”
The BOP has circulated guidance to its staff that eligible prisoners will continue to ear FSA credits toward early release until they have accumulate 365 days or are 18 months from their release date, whichever happens first. That guidance was an internal email that had no controlling document number, no signature as to the authority of the person sending out the memo and was not even dated. Looking at the letter, one would assume it were not official. Durbin/Grassley stated in their letter that this 18-month rule is not supported by the FSA, nor does it further the FSA’s goal of incentivizing recidivism resumption programming for returning persons. This is also something a federal judge agreed with in a ruling on a FSA case in the Southern District of New York where the judge struck down the 18-month rule and order that a prisoner receive their full FSA credits.
Finally, Durbin/Grassley asked AG Garland to look into the PATTERN risk assessment tool being used by the BOP and a provision in the First Step Act that was meant to address racial disparities and inaccuracies of the tool. Federal Public Defenders have raised questions about the BOP is not using the “warden exception” to permit eligible individuals who are ineligible under PATTERN to transfer to prerelease custody (in effect, shortening their sentence). The FSA states that a federal prison may be transferred to prerelease custody after aa warden’s determination that the “prisoner would not be a danger to society if transferred to prerelease custody.”
It is becoming clear that BOP Director Colette Peters has both the law on her side to implement the changes associated with FSA and the support of two powerful senators from different parties.
The letter concluded, “In the past two years, the Justice Department has made important strides that demonstrate its commitment to successful implementation of the FSA. For the FSA to realize its full potential , the implementation of ETCs requires dramatic improvement without further delay.”
Will be watching to see if that happens.