We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
TRYING TO FIX FIRST STEP’S 54-DAY FIASCO
The expanded good-conduct time credit in the First Step Act – which increased the number of days awarded a federal inmate for good behavior from 47 to 54 days a year, retroactive to the beginning of an inmate’s current sentence – was intended by Congress to be immediately effective, The Congressional Budget Office estimated that the change would immediately release about 4,000 people.
The good-time fix, however, was inexplicably tucked into the earned-time credit section of the Act. A subsection of that provision, which was quite reasonably intended to delay implementation of the earned-time program until the Attorney General adopted a risk-assessment tool to use in order to measure its effectiveness, had the completely unintended effect of delaying award of the additional good-time credit as well. Thus, increased good-time will not be until July 19.
The Washington Examiner reported last Friday that “three sources who work closely with lawmakers and administration officials say it’s their understanding that the White House is looking for an administrative fix.”
White House Counsel Pat Cipollone reportedly met with advocates in mid-January to discuss the issue. “I think he really understood the intent,” said a person with direct knowledge of the meeting. “I think they understood this was a key provision… This was a key part of legislative negotiations.”
For people serving decades, seven additional days means release months early. The increased “good time” expansion and the extension of the Fair Sentencing Act were intended to be retroactive, unlike everything else in the bill.
It quickly became clear, however, that an immediate award of the extra seven days per year was not happening. “I think it was just an oversight,” said Kevin Ring, president of FAMM. “People were focused on making sure the good time got increased and that it was retroactive. It ended up getting put in the section with ‘earned time.’”
A few fixes are being discussed. The easiest would be for the White House to order the Justice Department to apply the 54 days of “good time” credit immediately. Other fixes would require legislation — either a unanimous consent motion or a spending bill provision — but legislative gridlock amid a partial government shutdown makes neither likely.
“I don’t think it’s something that gets cleared up quickly,” said Jessica Sloan of #cut50, one of the people at the White House meeting. “I’m hopeful the White House will issue some sort of directive to the DOJ, which will issue a directive to BOP, but there are a lot of administrative steps there.”
Ohio State University law professor Douglas Berman said last weekend in his Sentencing Law and Policy blog that he “had very little “faith” in anyone inside the Beltway fixing things these days, but it is encouraging that two very effective advocates had the opportunity to address the White House Counsel about potential fixes.”
Washington Examiner, Drafting error stalls inmate release under Trump plan (Jan. 25)
– Thomas L. Root