by Casey J. Bastian
On June 18, 2022, almost three-and-a-half years after former President Donald J. Trump (R) signed the First Step Act (FSA) into law in December 2018, the federal Bureau of Prisons (BOP) announced that sentence recalculations under the law had been completed for about 8,600 — or 6% — of its 141,600 prisoners in custody. But BOP could not say how many of those had been released. Nor was it clear how long it would take to complete recalculating the sentences of another 56,000 prisoners the agency says are also eligible for credits the law provides.
“We estimate that there are thousands of inmates who will not receive the full benefit — days off of their federal prison sentence — of [FSA] simply because [BOP] is uncertain how to calculate these benefits,” said Walter Pavlo, president of the consulting firm Prisonology.
FSA provided a huge benefit to prisoners who were convicted of crack-cocaine offenses prior to the Fair Sentencing Act of 2010 — when sentences were rolled back from 100:1 to 18:1 compared to those for powder cocaine — by extending the law retroactively. Also made retroactive was an increase in Good Conduct Time (GCT) from 47 to 54 days per year. Additionally, the law increased and expanded the list of “extraordinary and compelling” reasons for “compassionate release.” [See: PLN, Jan. 2019, p.34.]
FSA also allowed some non-violent offenders to get up to 15 days of Earned Time Credit (ETC) per 30 days completed in “evidenced-based recidivism reduction” programming, including drug treatment, anger management, educational, and even vocational programs, such as working for UNICOR, the industry program run by BOP. Prisoners can then use ETC to shorten their sentences, or ETC may reduce their stay in a residential re-entry center (RRC) or halfway house, where about 17,000 BOP prisoners are held.
But BOP has come under fire for bias in the algorithm used to calculate recidivism risk before releasing prisoners, the Prisoner Assessment Tool Targeting Estimated Risks and Needs (PATTERN). According to November 2021 statistics from the federal Department of Justice (DOJ), BOP’s parent agency, Black prisoners were only half as likely as white prisoners to have their recidivism risk classified “minimum” or “low” by PATTERN.
A March 2022 report by the U.S. Sentencing Commission (USSC) found a twelve-fold increase in federal prisoners granted compassionate release from fiscal 2019 to the following year, though that also coincided with the onset of the COVID-19 pandemic and passage in response of the CARES Act, which also goosed releases to home confinement. The report, Compassionate Release: The Impact of the First Step Act and Covid-19 Pandemic, found moreover that the total number of grants, 1,805, represented just a fraction of BOP prisoners.
Still, Attorney General Merrick B. Garland called FSA “a critical piece of bipartisan legislation,” one that “promised a path to an early return home for eligible incarcerated people who invest their time and energy in programs that reduce recidivism.”
For its failure to live up to that promise, BOP blamed insufficient space in prison programs, though that is mostly due to its own chronic short-staffing. The agency also admitted some of the slowdown was due to the “need to reassess the risk and needs of all federal inmates using new standards” — in other words, because the agency has fallen so far behind in performing sentence recalculations.
“It’s still vague how they’re calculating time,” agreed former prisoner Dianthe Brooks, 52, one of the lucky few released to home confinement under the CARES Act because of co-morbidities that increased her risk from COVID-19. [See: PLN, June 2022, p.28.] “Nobody can give you a manual for here are the classes that qualify, the credit you’ll get and here’s how they’re applied. That doesn’t exist. So how do I even know if my time was calculated correctly?”
Another important change to the compassionate release program under FSA was amendment of 18 U.S.C. § 3582(c)(1)(A) to allow prisoners themselves to file a motion after exhausting their administrative remedies. So a prisoner no longer has to hope BOP will determine if he is eligible to have a motion filed. USSC data reflects that 96% of all motions filed since FSA became law have been filed by a prisoner on his own behalf.
Additional sources: AP News, NBC News
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