Wednesday, January 9, 2019

The First Step Act and Prison Reform

The First Step Act lowered some drug sentences, retroactively reduced some crack cocaine offenses, and changed the mechanism for the compassionate release program. It also created new rehabilitative incentives within BOP. As usual, FAMM is a great source of information.

Here are some highlights.

Good Time Credit 

The BOP must now give 54 days of good-time credit per year of sentence imposed, rather than 47 days that BOP was allowing. Everyone serving a term of years (a number, not a word) is eligible for good time credits.

There is a debate about when this goes into effect—Congress intended it to be immediate, but the wording of the Act is less than crystalline. It is a good bet that no one will see the new credit for several months. But it is retroactive, meaning BOP will be recalculate based on the entire sentence imposed. Some folks may be eligible for immediate release; some may be doing dead time waiting for BOP to recalculate.

Earned Time Credit

The First Step Act also allows some people to earn time credits by completing programs or other services. Depending on their risk levels, they can earn up to 15 days of credit for every 30 days of rehab or production activity. There are a lot of qualifiers and caveats, explained by FAMM. These time credits are not day-for-day reduction of the actual sentences, but can be redeemed toward time in half-way houses (RRCs), on home confinement, or on supervised release. 

And it will not go into effect immediately, either. BOP has 210 days to create risk assessment tools, six months to administer the assessments, and two years to phase in the programming. And then there is delay resulting from the federal government shut down, as The Marshall Project explains in its article, What the Government Shutdown Looks Like Inside Federal Prisons.

The longest section of the Act is the list of people excluded from earned time credits. FAMM has the full list here. Computer fraud? Out of luck. SORNA? Nope. Non-citizens with immigration detainers? Nada. Other offenses that are not eligible for the new time credits:

Almost any “organizer, leader, manager, or supervisor” enhanced sentence (USSG § 3B1.1)

§  924(c) offenses

Drug trafficking offenses with death or serious bodily injury

Child pornography offenses

Terrorism offenses

Aggravated illegal reentry and other immigration offenses

Non-citizens facing deportation


Treason (surprisingly)

And a plethora of weird offenses (recruiting child soldiers) that we never see.

Even if ineligible to earn time off, there are other incentives to complete the programming, such as greater phone privileges and commissary. Other good measures: BOP must help people get government ID cards before release; provide free tampons to women prisoners; and place people within 500 driving miles of their post-release residence (BOP policy used to read this “as the crow flies”) if space is available. And when possible, BOP is directed to move people closer to home.



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