We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues. 

UNWRAPPING THE FIRST STEP BILL

We have been reporting on the FIRST STEP Act, H.R. 5682, the House’s current iteration of prison reform, now expected to be voted on next month. Today, we’re going to look briefly at what the bill would do.

FIRST STEP proposes to use a new “risk assessment” tool, which the BOP will employ during the first 18 months after passage to calculate how likely each inmate in its custody is to commit new crimes upon release. Once everyone is assessed as minimum, moderate or high likelihood of recidivism,, some inmates will be entitled to get earned-time credits that may be cashed in for more halfway house or home confinement that what BOP was otherwise prepared to offer (which  isn’t much, see here).

The eligible programs will be those found by the BOP to reduce recidivism. The bill suggests that this definition is intended to be  broad enough to enable inmates earn credits – up to 10 days off for every 30 days of a program – for everything from the Residential Drug Abuse Program (RDAP) and GED to Adult Continuing Educations courses (often taught by inmates) and even working at UNICOR (Federal Prison Industries), which already is a plum job assignment. Once an inmate has worked down to the minimum category for risk for recidivism, the benefit for every 30  days of programming will increase from 10 to 15 days.

The bill also provides that while inmates are successfully completing courses, they should be entitled to other in-prison benefits, including higher monthly commissary spending limits, longer monthly phone time (beyond the standard 300 minutes per month), more visiting hours, and closer-to-home transfers. The bill suggests that all inmates can earn these rewards, regardless of offense, but only eligible inmates can get time credits.

The “ineligibles” are comprised of some 49 offense categories, but generally can be grouped as people who were convicted of violent crimes, Armed Career Criminal Act inmates, and sex offenders.

FIRST STEP is not without critics, most of whom complain the bill seeks to get inmates into programs that already are too full. According to Kara Gotsch of the Sentencing Project, the wait list for BOP GED programs is currently at 15,000 people. In a letter to the House Judiciary Committee last month, dozens of civil rights groups described the legislation as “an empty promise” that would likely be “doomed to fail.”

And the credits that earn a prisoner more halfway house? Mother Jones magazine complains that halfway houses already lack enough beds to accommodate the number of inmates who should have access to them. Because FIRST STEP requires the BOP to honor earned-time credits, passage of the bill could very quickly have an irresistible force (the law) meet an immovable object (the capacity of the halfway house system).

Also, the bill doesn’t allow all inmates to cash in on earned-time credits accrued through rehabilitative programming. Prisoners convicted of a range of crimes of violence, some drug kingpin offenses and sex offenses, would not be eligible — although drug crimes account for nearly half the total federal prison population. Inmates who are deemed to have a high risk of recidivating could also be prevented from using their credit to reduce their time in prison, complained Gotsch: “The people who really need the programming won’t be able to cash in, which might make them less likely to participate.” However, an amended version of the bill, not yet introduced, would allow high-risk inmates to cash in credits if they get approval from the warden.

There may also be problems with the system by which inmates would be designated as high risk. The bill instructs the Bureau of Prisons to use a risk assessment tool to determine prisoners’ chances of recidivating—an approach that has never been tested, says Gotsch. (More commonly, risk assessment tools are used to help estimate inmates’ security risk inside a prison, to determine whether they should be housed in medium- or high-security facilities.) “Research shows that risk assessments often do not accurately predict risk,” the civil rights groups wrote in their letter to the House Judiciary Committee, and “that these tools can produce results that are heavily biased against Black defendants.”

Many facilities don’t have enough staff to run new programs, according to Jesselyn McCurdy at the American Civil Liberties Union. “Wardens regularly require teachers at federal prisons to postpone or cancel their classes so they can fill empty slots for correctional guards in the housing units,” she said, a system called augmentation. “The whole concept of this bill is not based in the reality of what is going on in the Bureau of Prisons at the moment,” McCurdy said.

Our own observation is different from the others: the bill relies on the BOP to identify eligible programs, select the in-prison benefits to be allowed, and to award the earned-time credits. The BOP has a terrible record of using congressionally-authorized discretion to reduce prison terms (like compassionate release under 18 USC 3582), the Elderly Offender Pilot Home Detention Program and additional halfway house under the Second Chance Act) and to grant prisoners discretionary benefits (furloughs for eligible minimum security prisoners). Trusting the BOP to wholeheartedly adopt programs that reduce prison populations seems rather naive to us.

H.R. 5682, The FIRST STEP Act, passed out of House Judiciary Committee May 9, 2018

Mother Jones, Jared Kushner’s Prison Reform Plan Has Some Glaring Flaws (May 7, 2018)

– Thomas L. Root