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

THE LAGNIAPPES

In New Orleans, a lagniappe is a little gift that comes with goods and services you buy. The FIRST STEP Act, which we’ve been writing about the past few days, has a few lagniappes, too.

First, the law has always said that inmates can earn 54 days a year in good time. The BOP, being the bureaucracy it is, interpreted that in the most restrictive way possible, a tortured reading that after a year, you get your 54 days. Everyone else with a GED or above thought that you get 54 days after 319 days, to make a full year. The BOP’s twisted interpretation, upheld by the Supreme Court (and – note to Justice Gorsuch,  we cannot limit Chevron deference soon enough), screwed inmates out of seven days a year.

FIRST STEP cleans up the good-time language of 18 USC 3624(b) to get inmates the extra seven days, and makes the change retroactive to the first day of an inmate’s current sentence. So in a 60-month sentence, a prisoner will get 35 more days lopped off his or her sentence. It may not seem like a lot, but everyone with a release date (not including lifers and death sentence people) – no matter what the offense – gets the cut.

The bill also directs the BOP to make placing an inmate near home for his or her whole sentence a top priority. BOP still has wiggle room, but the 500-mile distance will now be 500 driving miles, not the 500 straight-line miles BOP used previously, which were a hardship to so many.  A real-life example: an inmate from Port Huron, Michigan – at the southern end of Lake Huron – was sent to MDC Brooklyn, a federal prison in New York City. That was well within 500 air miles from Port Huron, but was 685 miles by road (unless the family cut through Canada, where it was still 610). Under the old BOP standard, New York City was “close to home” north of Detroit. Under the new one, not so much.

The bill also amends 18 USC Sec. 3624(c)(2) to require the BOP, “to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph.” That time, 10% of the sentence up to six months, remains unchanged.

Finally, the bill re-ups the BOP’s elderly offender program.  The original program, authorized by Congress in the Second Chance Act of 2008, was a whopping failure. Out of 200,000 inmates in the system, the BOP only found 85 people who met its criteria for the program. The BOP found that the program achieved no cost savings, a finding that was sufficiently puzzling that Congress sic’ed the Government Accountability Office on the project. The GAO, unsurprisingly, found that the BOP had cooked the books, and substantially understated the costs of keeping people locked. up.

The FIRST STEP Act extends the pilot program to the whole BOP system, not just a few prisons. Also, the bill drops the age for an elderly offender from 65 to 60, drops the requirement that the percentage of sentence completed from 75% to 67%, and completely eliminates the requirement that the inmate have served at least 10 years to be eligible.

Best of all, the elderly offender program, the eligible terminally ill offender program, and the compassionate release programs would all now permit the inmate to file with the courts for the program directly. Previously, the BOP was the sole gatekeeper under 18 USC 3582(c)(1). Generally, a snowball stood a better chance in Death Valley than an inmate stood of getting the BOP to recommend an elderly or compassionate release program.

H.R. 5682, The FIRST STEP Act (May 9, 2018)

– Thomas L. Root

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