Bureau of Prisons begins implementing First Step Act with the release of thousands of inmates

The country’s mood changed when it realized that the prison industrial complex was inhumane and unsustainable. The cost of incarcerating so many in the name of punishment and shame rather than protecting the public has become so enormous that alternatives have had to be created. While lawmakers have tried other approaches to reduce these costs, the Federal Bureau of Prisons (BOP) has been reluctant or slow to implement many of the laws intended to reduce prison sentences for incarcerated people.

Those in the Department of Justice even tried to implement changes. Judges have only been able to convict defendants outside of the Federal Sentencing Guidelines since 2006, when a landmark court ruling ruled that these guidelines, once considered mandatory, were advisory. The result was a few jail sentences below guidelines, though most of the deviations from guidelines were the result of federal prosecutors granting select cooperative agreements to defendants to tell others. With fewer years of someone sentenced to prison, fewer people in prison. Prosecutors under Attorney General Eric Holder have limited their prosecution of drug offenders. Holder then said the population of 220,000 inmates in federal prisons needed to come down…that was 2013. It would take another 5 years when literally an act of Congress put the First Step Act on the President’s desk Donald Trump.

Implementation of the First Step Act (FSA) has been slow. It was only a few weeks ago that the final version of the FSA started to be defined. Three years after his death, the BOP interpreted one of the most influential parts of the FSA, namely Earned Time Credits (ETC). The initial interpretation of the ETC was that inmates could participate in certain programs to improve themselves and earn credits to spend more time in halfway houses, residential halfway houses. However, there has been a significant pushback from this interpretation of Congress which has stated that the FSA’s intent was to release more people from prison. In recent weeks, the more liberal interpretation of the CTE has emerged and thousands of people are coming out of the prison system.

The BOP has begun calculating ETCs and appears to be prioritizing the release of these prisoners from house arrest or halfway houses. Over the past 2 weeks, home confinement and halfway house populations show thousands released while BOP populations have remained stable. Expect this trend to reverse as inmates move on to halfway houses and home confinement…or their release from prison.

One of the concerns is that there does not seem to be a uniform method for calculating these CTEs in each establishment. The case managers, who have entered the courses taken by the inmates over the last two years, seem to have a liberal way of calculating the CTE and those I have spoken to about their release have no idea how their release date has been calculated. As one man told me, “I was just happy to be released and I don’t care how they calculated it. However, for the man or woman who is in prison, it makes a huge difference.

Many defenders can give themselves slaps, but, as history has shown, the BOP somehow finds a way to spoil a good thing. The law. already has flaws as there are a number of exceptions to prevent certain offenses from being ETC ineligible. Look for those that will be challenged in court.

The president of the National Association of Criminal Defense Lawyers (NACDL), Martín Antonio Sabelli, issued a statement; “The First Step Act reflects a commitment to redemption and rationality in the criminal justice system. We welcome BOP’s long-awaited implementation of a rule designed to make our communities safer by reducing recidivism and treating those caught in the system humanely. Now more than ever, in the midst of a pandemic raging in our jails and prisons, we must commit to fair, rational and humane sentencing practices that allow those incarcerated to prepare to reunite with their families and their community.

We will see how long this momentum lasts.

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