President Donald Trump signed the First Step Act (FSA) into law in December 2018, nearly five (5) years ago. While there are a number of benefits for many people in prison under the FSA, one of the most important is that prisoners can earn credits toward reducing their sentences or increasing the amount of that sentence that can be spent on home confinement. However, this last implementation step has been plagued with problems with interpretation of the law by the Federal Bureau of Prisons (BOP) and a host of computer problems. Both have left prisoners and their families confused over one simple question, “When does my prison sentence end?”
It was not until January 2022 when the Federal Register published its Final Rule on FSA, a transformational directive on how FSA was to be implemented. It provided a means for prisoners to earn credits (days) off of their sentence by participating in programs and productive activities, both meant to return a better person to society. Prisoners, mostly minimum and low security, who are eligible for these credits have done their best to try to participate in programs but many complain of a lack of classes, mostly due to the challenges the BOP is having in hiring people. However, beyond that, the BOP has been liberal in accepting that the BOP does not have the staff to fulfill the demand for classes and credits are being given anyway, mostly for participating in productive activities, like jobs. This misses the primary mission of programming meant to have a lasting, positive influence on prisoners after they leave the institution.
During 2022, as a result of the BOP struggling to implement FSA, prisoners received too many credits, in other cases too few credits, or in the most egregious situations, some received no credits at all. This occurred because the BOP did not have the technical infrastructure to even calculate the credits. The early iterations of the calculations gave prisoners too many days of credits, as manual calculations led to prisoners being immediately released from prison during the first quarter of 2022. Most prisoners did not care how many credits they received, they just wanted to leave. After that, the BOP tried to slow things down and implemented an “18-month” rule, something that was not even a part of the FSA law, which froze the award of FSA credits when the prisoner was within 18 months of release. That haphazard approach led to even more prisoners not receiving credits, particularly those with shorter sentences. That policy was rescinded after congressional leaders intervened. After all, the purpose of the legislation was to reduce prison sentences, not lengthen them.
Now, nearly two years since the Federal Register’s Final Rule in January 2022, the BOP still has no reliable calculator to determine the number of FSA credits a prisoner will earn during a prison term. During the first part of 2023, the computer program encountered an issue because it relied upon the start point for awarding FSA credits based on a survey prisoners were supposed to take upon arriving at their designated institution. The problem was, nobody told the prisoners they were supposed to take the survey and thousands of prisoners missed out on hundreds of days of credits despite their having taken multiple classes. After the BOP figured out it could not blame the prisoners for the error; after all, what prisoner would refuse a survey that reduced their prison term, the BOP awarded the credits retroactively.
One of the last remaining issues is for the BOP to have a forward-looking calculation for FSA credits that predicts when a prisoner will leave BOP custody. It sounds easy, but the BOP’s current computer program can only assess credits after they are earned each month, and it usually takes a full month after they are earned for them to post. The result is that each month, prisoners’ families look at BOP.gov to see if there are indeed new credits and if the amount they are expecting match what is expected. This moving date is important because it can also determine when prisoners can lave prison for home confinement or halfway house. The result, prisoners are staying in institutions, institutions that are understaffed, for days, weeks and months beyond when they could be released to home confinement or halfway houses. This is defeating one of the other initiatives of the First Step Act and that was to get more people out of decaying BOP facilities and into another form or confinement that is far less expensive.
The FSA is important. In fact, it was the opening comment in a Senate Judiciary Committee hearing headed by Senator Dick Durbin in September 2023. While BOP Director Peters lauded the accomplishments of the number of prisoners participating in the program and the number released early, her answer failed to address the continued shortcomings of the implementation. There are thousands of prisoners, many minimum security, who are stuck in prison because of a lack of a computer program that simply calculates forward looking FSA credits. This is imperative because it allows BOP case managers to predict when a prisoner will be released to home confinement or halfway house. This computer program was actually alluded to in declarations the BOP submitted to federal courts in 2022 stating that it would be implemented “soon.” Over a year since those declarations, there is still not program to accurately calculate when a prisoner will leave an institution.
There is also the issue of insufficient halfway house space. Even though the BOP has expanded funding for halfway house capacity, there is still not enough. At the same September 2023 Senate Judiciary Hearing, two senators, one from Vermont and another from Hawaii, stated that their states have no halfway houses. In other areas of the U.S., particularly in Florida, capacity is woefully inadequate to handle the number of prisoners re-entering society. The issue is that FSA mandates that those who earn additional FSA credits for home confinement “shall” receive such time. However, when there is insufficient space to place prisoners in halfway houses (note: Halfway houses monitor those prisoners on home confinement as well), prisoners languish in prison for days, weeks and months when they could be home.
The only way to address this situation is to implement a task force to move prisoners through the system and catch up from the failures of the past few years. Systemic challenges of shortages of staff and augmentation which takes away staff like case managers from their jobs, cause continued problems. The BOP needs to get caught up, move prisoners along and develop reliable systems that will assure that the FSA is implemented as the law requires. While the BOP has made great strides, these last challenges of full implementation can be achieved by focusing a concerted effort on three issues; fixing the calculator, assessing the prisoners who will soon be going home as a result of that computer fix, and expanding halfway house capacity to handle them.
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