by Dale Chappell

The long-awaited extra seven days of good conduct time (“GCT”) is finally being applied by the Bureau of Prisons (“BOP”), which will result in the official release of 3,100 prisoners from BOP custody, according to a July 2019 Department of Justice press release on behalf of the BOP.

Although the First Step Act (“Act”) was signed into law on December 21, 2018, and impacts only federal prisoners, the BOP has been criticized for its interpretation of the new law, which delayed awarding the extra GCT by another 210 days. 

The delay was needed, the BOP claimed, to finalize the risk and needs assessment system (“RNAS”) also required under the Act. Some said the RNAS wasn’t needed before applying the extra seven days because every prisoner would get the extra days off regardless of his or her risk level. But the BOP called the RNAS a “key requirement” of the Act.

A week after the press release, many federal prisoners still had not received the extra days off.

The BOP also touted several other aspects of the First Step Act it has implemented. Compassionate release has been expanded and made more accessible to prisoners. The BOP said 51 requests have been approved in the last seven months, compared to just 34 in 2018.

Drug treatment also has been expanded. In addition to the well-known Residential Drug Abuse Program, the BOP will begin Medication Assisted Treatment, to help with the prevalence of opioid addiction in the prison population. This treatment, however, is offered to only those within the last 15 months of their sentence.

The Act also includes greater emphasis on re-entry programming. The press release didn’t mention the extra GCT prisoners could earn by taking certain programs, but it did call the focus on re-entry “a critical factor in preventing recidivism.” The BOP said it has launched a Ready to Work initiative, connecting employees with prisoners nearing release.

There also are prison dog training programs, youth mentoring programs, and a dyslexia screening tool put into place under the Act. Female prisoners will receive free feminine-hygiene products, and pregnant women will no longer be shackled during childbirth.

Funding for implementing the First Step Act wasn’t specified by Congress, the BOP said, but it had “re-directed” $75 million from other prisoner programs to pay for new programs under the Act for the first year. Funding for subsequent years will be negotiated with Congress, the BOP said.

Rocky start

It was a rough road for the First Step Act on its way to approval. Then-Attorney General Jeff Sessions, the nation’s top cop overseeing the BOP, fiercely opposed the Act and pushed for even harsher laws to lock up more citizens. He also opposed the retroactive expansion of the Fair Sentencing Act of 2010 for drug offenders, and he believed that reducing the sentences of prisoners who had been in prison more than once would increase recidivism.

But when Sessions saw that his boss, President Donald Trump, was backing the First Step Act, he publicly got on board, but he secretly tried to kill it by pushing law enforcement associations and other groups to convince politicians to vote against it, according to staffers who worked with Sessions.

Thankfully, Sessions failed in his efforts. Trump fired him soon afterward. “Sessions represented an all-time low for prospects for successful passage [of the Fair Sentencing Act],” Holly Harris, president of the Justice Action Network, a criminal justice reform advocacy group, said. She called Sessions’ removal “a vastly improved situation.”

Trump replaced Sessions with William Barr, who was attorney general during the heyday of harsh sentences that led to the mass-incarceration epidemic we see today. This concerned some, worried he would be the death sentence to the Act.

But Barr said his thinking has evolved over the last three decades. “After someone has been in prison for a substantial period of time, and you can really assess whether they pose a threat to the community, then obviously you’re more inclined to modify the sentence,” he said. Barr also said he was “in favor of some kind of monitoring that doesn’t involve the heavy cost and isolation of this kind of prison system.”

The “some kind of monitoring” Barr mentioned is part of the Fair Sentencing Act, by expanding the use of home confinement for “low risk” prisoners, as well as for elderly and terminally ill prisoners. In the last seven months, the BOP said 201 prisoners qualified for the program.

As far as the RNAS, the BOP said it created the Prisoner Assessment Tool Targeting Estimated Risk and Needs – abbreviated as “PATTERN” – to predict recidivism. Without going into detail, the BOP said certain factors, such as age, offense, and participation in programs, will be weighed to assess a prisoner’s risk level.

As of July 22, the BOP has been accepting public comments on the new risk assessment system via email, firststepact@ojp.usdoj.gov. Following a 45-day comment period, there will be a hearing this month for further input on the new system. The RNAS is available for view at nij.gov. 

“Every day of freedom is important,” FAMM president Kevin Ring said in a statement about the release of the 3,100 prisoners. “We’re happy for the families who get to welcome home their loved ones.” 

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Sources: DOJ Press Release (July 19, 2019), nytimes.com, reason.com

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