On December 21, 2018, then President Donald J. Trump signed into law the First Step Act (FSA), which enacted several criminal justice reforms throughout the federal prison system. Now, nearly three years later, the Federal Bureau of Prisons (BOP) has yet to implement much its central purpose which was to further reduce institutional prison populations by offering incentives to inmates to earn credits toward more halfway house through certain educational programs. It turns out part of the holdup on the implementation is because BOP management and union staff have been unable to come up with a solution to meet to discuss how the program will be implemented. The reason we now know this is not because of an announcement from the BOP, but from the release of a recent Office of Inspector General (OIG) report criticizing the lack of implementation along with a lack of the BOP responding to a number of OIG reports over the past 3 years.
According to the OIG report, the BOP’s national union has declined to conduct formal policy negotiations in a remote manner. Relying on labor contractual terms providing for in-person negotiations, the national union has insisted on in-person negotiations and expressed its availability to meet in person. This disagreement has resulted in a lack of formal policy negotiations for a period of 20 months, which has stalled the development of more than 30 BOP policies, about half of which were created or revised in response to the FSA.
The BOP did implement the controversial Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN) system, which The Leadership Conference on Civil and Human Rights and American Civil Liberties Union called the tool one that was both “unreliable and exacerbate racial and socioeconomic disparities.” The BOP, which is rarely in a hurry to implement any program quickly, hurriedly put together PATTERN scores for every inmate but the result was that many inmates had wrong, usually higher than necessary, PATTERN score. Most inmates could have cared less about their PATTERN score but when COVID-19 hit, the CARES Act allowed the BOP to reduce populations to reduce contagion associated with the pandemic. This allowed some inmates to be transferred to home confinement to complete their sentences. Priority was given to those with minimum PATTERN scores, so those with higher scores, many incorrect, were initially not allowed to participate in the program. From my own work, it has also hindered the release of those seeking compassionate release. It has been a mess.
The programming aspect of the FSA has been more controversial, convoluted and delayed. The FSA called on the BOP to begin to assign inmates to appropriate evidence-based recidivism reduction (EBRR) programs based on the initial assessment, begin to expand expand those programs and productive activities available at BOP facilities. The incentive for the inmates to participate in EBRR programs was that it allowed them to earn “time credits” toward pre-release custody (i.e., transfer to a Residential Reentry Center or home confinement) or supervised release (i.e., early satisfaction of the inmate\’s sentence). Under the FSA, the BOP must provide EBRR programs and productive activities to all inmates in its custody no later than January 15, 2022. However, the OIG report stated that it had identified 13 FSA-related policies that the BOP has determined require negotiations with the national union … something that is difficult to do if the two sides cannot come to terms on meeting face-to-face.
The “time credits” are significant, and, supposedly, since January 15, 2020, federal inmates have been able to earn time credits under the FSA. However, OIG found that the BOP has not applied such statutorily earned time credits to any of the approximately 60,000 eligible inmates who may have completed EBRR programs or productive activities. OIG concluded that they are “concerned that the delay in applying earned time credits may negatively affect inmates who have earned a reduction in their sentence or an earlier placement in the community.”
The FSA states that an inmate shall earn 10 days of time credits for every 30 days of successful participation in EBRR programs or productive activities, which nobody has yet to define. Minimum and low risk inmates who, over two consecutive assessments, have not increased their risk of recidivism, can earn an additional 5 days of time credits for every 30 days of successful participation in EBRR programs or productive activities.
However, what I am hearing from the inmates is that the BOP has already started some of the time credits but they just don’t want to say how they are doing it. According to several inmates on the inside, BOP staff is telling them something close to the following: “Inmates were hoping to receive FSA time credits for the countless hours of work they do every day (the only programming that would provide any significant time off their sentence). However, the inmates were \assessed\ during their needs assessment and told that \work\ wasn\’t an area of need, therefore they do not qualify to get any FSA credits. Most prison camps are offering a few classes each month and each class has a maximum of 20 hours of credit translating to 2 days of time credit. Without employment being counted as a EBRR program, there is no way anyone will realistically benefit from this bill the way Congress intended.”
In December 2020, the Office of the Attorney General (OAG) released its annual report to Congress summarizing the activities and accomplishments of implementing the FSA. The report acknowledged that the BOP had not applied earned time credits to inmate sentences and stated that the BOP “did not believe that anyone had been negatively impacted…because of the dramatic expansion of inmate community placements in 2020 pursuant to the CARES Act.
However, in OIG’s review of minimum and low risk inmates in BOP facilities in March 2021 alone, they identified 50 such inmates who do not appear to have benefited from their participation in FSA programming. These 50 inmates had earned, on average, 31 days of time credits and were all projected to be released from BOP custody within the following 6 months. Yet, as of March 27, 2021, none of these inmates had been transferred to community placement despite each of them having completed at least 240 hours of EBRR programs and productive activities. OIG concluded that these inmates have not benefited from any of the programs described in FSA.
The BOP responded to the OIG’s summary by stating:
“BOP disagrees with OIG\’s characterization of the agency\’s delayed implementation of FSA requirements. Although the COVID-19 pandemic has created unprecedented challenges for the federal government, BOP has taken significant steps in implementing the FSA\’s requirements, consistent with the FSA\’s phased approach, and has complied with all mandatory statutory guidelines todate.”
If the BOP’s responses to earlier reports, criticisms, from OIG are any indication, it may be a while before anything gets done. The OIG called out the BOP for ignoring its previous recommendations by stating in the same report that the BOP has an ongoing duty to honor its commitment to implement corrective actions in response to recommendations in seven OIG reports that have found serious deficiencies in BOP programs and policies. OIG stated that it was particularly concerned with the BOP’s lack of progress in implementing 27 policy-related recommendations that the OIG has made in seven reports since 2015. Those 27 recommendations have remained open for an average of 3 years.
In a related story, which I will expand upon later, U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, today released the following statement calling on Attorney General Merrick Garland to replace BOP Director Michael Carvajal, who was appointed during the Trump Administration:
“Director Carvajal was handpicked by former Attorney General Bill Barr and has overseen a series of mounting crises, including failing to protect BOP staff and inmates from the COVID-19 pandemic, failing to address chronic understaffing, failing to implement the landmark First Step Act, and more. It is past time for Attorney General Garland to replace Director Carvajal with a reform-minded Director who is not a product of the BOP bureaucracy.
We have a new Administration and a new opportunity to reform our criminal justice system. It’s clear that there is much going wrong in our federal prisons, and we urgently need to fix it. That effort must start with new leadership.”