In November 2022, Senators Dick Durbin (D-IL) and Chuck Grassley (R-IA) wrote to the Federal Bureau of Prisons (BOP) Director Colette Peters about their concerns concerning the implementation of the First Step Act (FSA). The FSA was a sweeping criminal justice legislation signed into law by then-President Donald Trump on December 2018. Nearly four years after the passage of that law, Durbin and Grassley stated then that:
“We write regarding continued failures by the Federal Bureau of Prisons (BOP) to adequately implement the Earned Time Credit (ETC) provisions of the bipartisan First Step Act of 2018 (FSA). The FSA enacted critical reforms to promote public safety and make our criminal justice system fairer. A fair system for awarding time credits to those who participate in recidivism-reduction programming is necessary to meet the FSA’s goal of reducing recidivism and making our communities safer. Unfortunately, almost four years after the FSA was signed into law, implementation of its ETC provisions continues to fall short… Although BOP has struggled to develop and implement consistent and fair policies to this effect, enough time has passed that further delay cannot be excused.”
Over two years since release of that statement, the BOP continues to struggle in implementing FSA, which allows thousands of mostly minimum security prisoners to both reduce their sentence and spend more of their sentence in prerelease custody in the community. Last week, the American Civil Liberty Unions (ACLU) filed a class action lawsuit on behalf of thousands of prisoners who believe they should be in community confinement rather than prison. According to the lawsuit the BOP has unlawfully treated credits earned under FSA as discretionary rather than a mandate clearly stated in the law.
The BOP has stumbled with FSA implementation, which has been riddled with problems since the Final Rule appeared in the Federal Register in January 2022 when it became official that FSA would mean fewer minimum security prisoners in institutions. Initially, the BOP came up with its own interpretation for calculating and giving FSA credits. The result was that many prisoners did not even receive a single credit even though they had participated in the required programming. The BOP later had problems when prisoners had not received credits because of a failure to inform them that they needed to have taken a “needs” survey in order to start the clock for receiving credits. Thousands of prisoners were affected by this and the BOP later relented and provided the credits retroactively with a renewed effort to inform the prisoners of the requirement. However, for many, it was too late.
The BOP has largely succeeded in giving FSA credits associated with reducing the sentence, which can be up to one year. However, for those with longer sentences, over 4 years, the FSA allows prisoners to continue to earn credits toward prerelease custody (halfway house and home confinement). This part of the FSA has caused considerable problems for the BOP as it has interpreted this part of the law as being discretionary, something the ACLU has focused on in its lawsuit. It is anticipated that thousands of federal prisoners will sign on to this action.
The BOP has already been sued by individual prisoners and the courts have awarded the credits in some of those cases that were disputed. However, the BOP did not use those losses as an action to update its program statements nor did they appeal the ruling. Instead, the BOP has been less than transparent in how it determines when a person can apply the credits for prerelease custody. Federal prisoners have a right to resolve their differences with the BOP through an administrative remedy process. However, that process can take months and prisoners simply serve out their term without receiving the maximum amount of time in the community.
The BOP has also added to the problems with implementation through its own communication to staff and prisoners which has caused confusion. In July, the BOP rolled out a video indicating how it was not only fully embracing the placement of prisoners into the community for FSA credits, it was “stacking” credits of the Second Chance Act, a law signed by George W. Bush. That law allowed a full year in prerelease custody, something the BOP used for prerelease custody prior to FSA. Prisoners were then standing in long lines to see their case managers to ask for their FSA credits and consideration for the Second Chance placement as well. That has not materialized and it has caused tension in the prisons. Earlier this year, a food strike at FPC Montgomery, a minimum security camp, led to over 30 prisoners being transferred for their civil disobedience associated with the protest.
There is still unrest in prisons. Over the past few months, I have received dozens of letters from FCI Forrest City satellite prison camp stating that they are not receiving the credits due to a lack of programming and a FSA miscalculation by the BOP. As one prisoner wrote, “My formal attempts to remedy this issue with the prison’s administrators and staff have [been] met with negative results due to their refusal to take any remedial action.” Based on reviews of several FSA calculations, not only is the BOP not releasing prisoners as soon as it could, many prisoners believe they are being retaliated against for bringing attention to the problem. The ACLU press release on its lawsuit states that “the BOP’s failure to implement the First Step Act according to its plain language violates the rights of thousands of people who should be returning to their communities and rebuilding their lives but instead remain incarcerated.”
The BOP may have reasons for not moving prisoners into the community. The BOP has stated that it does not have the capacity in halfway houses to place prisoners and has taken liberty to move prisoners only when it has the ability to do so. The FSA was known as being a law that would lead to more prisoners in community custody yet the bed space capacity at halfway houses in 2018, the year the law was signed, remains roughly the same today years later.
Besides the ACLU lawsuit and calls for implementation by Congress, problems with the FSA have been written here, on NBC, and most recently the New York Times. The BOP has been open about its embrace of the FSA despite these lagging problems. There are signs that FSA is doing what Congress intended as prison camps have seen their populations decrease. The BOP announced earlier this month that it would be closing 6 federal prisons camps (minimum security) across the country as a result of decreased populations and to reduce costs of incarceration, a goal of the FSA. However, this last stage of moving people to the community to serve the last part of their sentence under the FSA is going to require more changes by the BOP.
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