Sixty-thousand Bureau of Prison inmates potentially did not properly receive credits for time served under the First Step Act’s recidivism programs, according to a recent finding by the Department of Justice, Office of the Inspector General. See Management Advisory Memorandum 22-07, Department of Justice, Office of the Inspector General (Nov. 15, 2021).
The First Step Act (FSA) was signed into law on December 21, 2018, enacting several criminal justice reforms throughout the federal prison system. Among other things, the FSA required the Attorney General, in consultation with an Independent Review Committee, to develop a system to assess the recidivism risk and criminogenic needs of all federal inmates by July 19, 2019. In response, the DOJ developed the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN) system. The FSA set a deadline of January 15, 2020 for the DOJ to utilize the PATTERN SYSTEM and other resources to:
- complete an initial risk and needs assessment for each federal inmate,
- begin to assign inmates to appropriate evidence-based recidivism reduction (EBRR) programs based on the initial assessment,
- begin to expand the EBRR programs and productive activities available at BOP facilities and add any new EBRR programs and productive activities necessary to effectively implement the system, and
- begin to implement any other risk and needs assessment tools necessary to effectively implement the recidivism risk assessment system over time.
The FSA provides that BOP inmates who “successfully complete [EBRR programs] or productive activities, shall earn time credits.” Participation and completion of those assigned programs and activities can lead to placement in pre-release custody or a 12-month sentence reduction under the FSA. Since January 15, 2020, federal inmates have been able to earn time credits under the FSA. However, according to the Inspector General Michael E. Horowitz’s memorandum:
we 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. We 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.
In addition, the Inspector General also found that BOP failed to incentivize or reward inmates who completed First Step-related programs. The FSA requires the BOP to use incentives and rewards for inmates to participate in EBRR programs, such as additional visitation time and transfer to a facility closer to the inmate's release residence. But at the time it had completed its fieldwork in May 2021, the Inspector General found that, “contrary to the FSA, the BOP had not used any incentives and rewards for inmates who participated in and completed EBRR programs because the First Step Act Program Incentives policy had not been finalized.”