In 2018 the United States Congress passed the First Step Act, is a criminal justice bill aimed at reducing prison sentences for non-violent offenders. The bill, which aims to reduce rates of recidivism and improve productivity in the community, has faced huge delays and misinterpretation by the Bureau of Prisons, the department that manages inmates under the Department of Justice. The BOP failed to implement the requirements laid out by Congress under a bill that had been passed and signed into law. This failure was in direct defiance of the legislative branch of government and this is not the first time the BOP has done so (see issues in approving applications for the compassionate release program by the Justice Department, which were all denied for dying or elderly prisoners by the director of the Department of Justice, Eric Holder, during the Obama Administration).
What Is The First Step Act?
The First Step Act was signed into law in 2018. This law was aimed at reducing the extreme sentences that have led to the huge increase of non-violent offenders in our prison population. Many of these offenders are unlikely to return to prison and yet have been subject to harsh conditions which in no way promote better adherence to the laws of the United States. Many of these prisoners have been locked away for years for doing petty crimes, or even vice crimes, which rarely cause harm or inflict damage on the community. When the law was passed by Congress, it gave the Bureau of Prisons ample time to implement the requirements laid out by law, as well as to report back to Congress on the implementation and the effects. At this time, many of the act’s requirements have yet to be met, causing several thousands of inmates to be held past their statutory release dates illegally, in direct violation of Congress’ directives.
The First Step Act specifically allowed non-violent offenders, who were rated low or minimum risk, the opportunity to complete programming under supervision by the BOP. This programming would allow up to 15 days off their sentence per month, which could effectively reduce a prisoner’s sentence by half. This was a huge opportunity and incentive for inmates to prove themselves and prepare for reintegration, which has all but been implemented properly under the current Administration’s Department of Justice.
As part of the requirement of the First Step Act inmates were to be ranked by the BOP’s own system and show that they were unlikely to commit another crime. Additional measures would then be taken to provide these individuals with reeducation and reentry programs so that they could be even more beneficial to the community upon their return. Again, only non-violent offenders who had not committed serious crimes were allowed to receive time and credit off. It also promoted the idea of conforming to a different standard in exchange for reduction in prison time for those individuals who might not otherwise have a desire to reform. All these programs set to be approved by the BOP were evidence-based and shown to reduce recidivism. This was a hopeful attempt to reduce mass-incarceration rates and overcrowding which have been plaguing the United States for some time.
Disparity Between Federal Sentences and State Sentences
One of the biggest issues in the United States, when it comes to sentencing, is how two different individuals can receive vastly different prison sentences for the same crime. One of the large gaps in American justice shows itself in the disparity between Federal Sentences and State Sentences. Often, Federal sentences are much greater and harsher, running on average to approximately 3 to 4 times greater than most State sentences. This means that an individual sentenced to a crime in a State court could receive a one year sentence while a Federal judge could sentence an individual who committed the same crime to a four year sentence. Of course, this compounding hurts as sentences are handed out at greater lengths.
For example, in my case, I received a total sentence term of six and a half years. In my home state of Texas the same crime is considered a misdemeanor and carries a prison term of less than a single year, and a first time offender is unlikely to even receive a prison sentence. My prison term as compared to my home state is at least 6.5 times greater than any sentence I would have received in a State court. Even worse, since the BOP has eliminated parole in the Federal system, Federal prisoners do not even have the opportunities to leave prison early for exceptional behavior.
As such, the prison population has been growing at an exponential rate. This is not only unsustainable, but also harmful for the community as a whole. The great disparity between sentences causes those convicted of crimes to be resentful towards the government, and causes prisons to be overpopulated and a great amount of additional tax dollars to cover the costs of housing these inmates for extended periods of time. While this is not the only disparity that exists in sentencing, it is a great one which has a major impact on inmates’ lives, as well as on their families who support them.
How The BOP Applied The First Step Act
Congress handed down the law to the BOP after the bill passed, so that they could work out the logistics and how to implement the requirement. Figuring out which specific programs would count towards a credit was left to the BOP’s discretion. However, they had to offer programming to individuals who were low or minimum risk of recidivism, while expanding overtime to help even those where credit would not be applied. However, in the end many ways in which the BOP tried to apply the new law harmed inmates rather than helping them reduce their prison sentences.
One specific area where the BOP applied the act incorrectly, and in violation of the law, was how they calculated time off. The BOP argued that the requirements gave them the authority to apply hours per day instead of full day credits. This means that an individual attending programming for six months might only receive ten to fifteen days off. Congress specifically did not instruct the BOP nor grant the BOP authority to make such a decision. The statutory requirements of the law instructed the BOP to provide 10 to 15 days of credit for every 30 days worth of programming. The BOP, in attempt to keep the inmate population large, and likely to sustain their existing budget, restricted the requirement to say hour per hour out of a 24 hour day. This meant an individual who was working and attending programming could only receive maximum of 8 hours per day. This effectively reduced the amount of time off a prisoner could earn by a factor of three times: at most inmates could receive 15 days off for every three months worth of programming. To make matters worse, the BOP often only approved programs that lasted a maximum of 1-2 hours per day, which effectively meant that inmates might only be eligible for 10 to 15 days off per year, rather than per month.
While the BOP attempted to circumvent the law which Congress passed for the amount of time an inmate could receive off their sentence, they restricted the ability to actually take programming to an extremely limited core of the eligible population. In many cases, only one or two programs accredited by the BOP to reduce prison time were offered per year at each institution (on average) for the majority of the population, where classes were limited to sizes of around 10-15 individuals. Several institutions did not even offer any programming for inmates or any opportunities to reduce their prison terms at all.
Confusion With Actual Implementation
While I can neither confirm nor deny this (mostly because we have limited access to information in prison), to the best of my knowledge the BOP administration and external justice advocate groups indicated that the main reason the implementation of the First Step Act failed is because of an internal struggle with the Prison Guard Union. The group which was responsible for implementing specifics within the First Step Act, including the computer system used to calculate the credits and actual programming offered was in disagreement over union related issues with the BOP. The staff members responsible for implementing the act were not active in the process due to failure by BOP management to in-person negotiations. As such, the BOP encountered numerous issues during the time given to implement the requirements of the act.
After the First Step Act required the BOP to implement the requirements, the officials in the BOP still were unable to provide the requirements under the act. While they passed the deadline set by Congress by several months (with substantial additional funding to make this all happen), the BOP was directly defying Congress and our law makers in their interpretation and implementation. One of the major issues, related to credits being given in hours as opposed to in days, was fought by the very same lawmakers who passed the original bill. Several US Senators and Congressmen were adamantly going after the BOP administrators for attempting to manipulate the act in keep prisoners behind walls – the very same prisoners the BOP had rated as unlikely to commit further crimes. While there is a specific financial incentive to keeping the prison population high to sustain the BOP budget, the direct causes were not stated outright.
After months of our lawmakers going to bat for these inmates, the BOP finally caved and reverted to the standard of days versus hours as originally passed under law. However, the damage has already been done in a number of ways. First, tons of prisoners were held illegally past their actual prison terms under the act’s requirements, as the BOP failed to implement it as directed by Congress. Second, all the standards which had been originally produced for calculations were invalid which currently requires manual calculation. What is even worse is that the BOP has limited these calculations currently to a small number of staff centralized, rather than at each prison location. The credit has yet to be calculated for anyone with more than 24 months left on their sentence. Currently many individuals who qualify under the law are not being released by the BOP.
One major issue I have is with how the BOP has reported their actions to Congress. In a recent discussion with BOP officials and Congress, the BOP stated that all inmates have been given initial calculations for their First Step Act credits. However, this is a blatant lie. Case managers can confirm in written communications that anyone with more than 24 months left on their sentence has not even yet been reviewed. I personally have not received any calculation of First Step Act credits. When asking the local staff, they refuse to provide a calculation. They will not provide it, even as the BOP officials have informed Congress that they have in fact provided these calculations to every eligible inmate. I encourage anyone to reach out to your United States Senators and Congressmen and Congresswomen to make them aware of this blatant deception.
Today, many months later, no one still seems to understand how the calculations are being made, nor have staff followed through with many of the requirements under the new law. When asked by inmates, several staff members at my specific prison have retaliated against inmates who desire to escalate the issue to BOP administration and lawmakers. Currently, after comparing various inmates who have received their calculations, most appear arbitrary. Some people with more programming are receiving less time then individuals with more programming and time in. This make no sense and local administration can not give us reasons for these discrepancies.
Many inmates have completed programming under the promises of reduction of time. However, they have not received that and some have even been held illegally past their term dates. This is very discouraging and leads these individuals to have disdain for the government and the laws even more. In the eyes of most Federal inmates I have spoken to, there is no longer trust in the government. I believe these issues weigh heavily on most of the Federal prison population. Many people, who have done as required under law, have not been given their rightful credits. Is this what American justice has come to? This very failure and defiance has lead to greater distrust and does not help promote a life more in line with the very laws which put them here in the first place. If the government can lock someone up under law, why is there a double standard that exempts them from applying these provisions passed by the same lawmakers? Is this justice? Is this promoting the right ideas in one of the largest and most vulnerable population in the United States? Your thoughts?