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Drafting Error in First Step Act Delays Application of Good Behavior Credits

by Steve Horn

The newswire service Reuters has reported that, due to a drafting error in the First Step Act, the increased good behavior credits included in the bill will not be applied until at least July 2019 or until the error is fixed. The First Step Act – landmark legislation which many see as a positive, albeit limited, effort towards federal prison reform – was signed into law by President Trump on December 21, 2018. [See: PLN, Jan. 2019, p.34].

Compounding the issue is the recently ended partial federal government shutdown; thus, it remains unclear when the problem will be addressed. [See article on p.36].

“Potentially thousands of inmates could be affected by the error in the First Step Act,” explained Reuters. “The law required the Justice Department’s Bureau of Prisons (BOP), among other measures, to retroactively recalculate good behavior credits, a step that had been expected to reduce some inmates’ sentences by as many as 54 days per year. Previously, inmates could only earn up to 47 days per year toward early release for good behavior.”

The existence of the drafting error first came to light via a letter sent to federal prisoners by BOP officials.

“The law will allow BOP in the future to apply 54 days of credit for every year a sentence was imposed, which is a change to the prior law,” the letter states. “While this change may result in additional credit for inmates in the future, it is not effective immediately nor is it applicable to all inmates.”

One prison reform group, Families Against Mandatory Minimums (FAMM), has decried the error.

“You have thousands of families who thought the day this bill passed, their loved ones’ sentence was going to be recalculated and they were going to walk out of their halfway house, their home confinement ... or leave prison,” FAMM president Kevin Ring told Reuters. “It’s a frustrating mistake.”

At least one source, however, pointed to potentially more sinister forces at play. The Sentencing Law and Policy blog, published by Law Professors Blog Network, posited that a close reading of the First Step Act may have made this issue a fait accompli.

“As I understand this problem, it flows from the fact that the enacted version of the First Step Act has the expanded good time credits provision tucked within sections of the Act which is said to be effective only when the Attorney General has created ‘a risk and needs assessment system’ that the [Attorney General] has 210 days to develop,” explains the article, written by Douglas Berman, a professor at the Ohio State University Moritz College of Law. “This placement leads to the view that the expanded good time credits cannot be applied until the risk and needs assessment system gets developed later in 2019. I am not sure that is the only plausible reading of these provisions of the First Step Act, but it sounds as though this is the reading now being adopted by the Bureau of Prisons (and maybe some courts). Such a reading would seem to mean prisoners will not get the benefit of expanded good time credits until at least July 2019.”

So perhaps it was an error and perhaps it was intentional based on how the legislation was written; either way, the effect on federal prisoners is the same. As the German statesman Otto von Bismarck once remarked, “If you like laws and sausages, you should never watch either one being made.” 




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