The mood of the country changed when it realized the industrial complex of prison was inhumane and unsustainable. The costs of incarcerating so many people in the names of punishment and shame rather than public protection, has become so massive that alternatives had to be created. While law makers 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 meant to reduce the prison sentences of those incarcerated.
Federal Bureau of Prisons Director Michael Carvajal announced his retirement after congressmen and … [+]
Those in the Department of Justice have even tried to implement change. Judges were only empowered to sentence defendants outside of the Federal Sentencing Guidelines since 2006 when a landmark court decision ruled that those guidelines, once viewed as mandatory, were advisory. The result has been some prison terms below the guidelines, though most guideline departures are a result of federal prosecutors giving select cooperation agreements to defendants to tell on others. With fewer years of someone sentenced to prison, fewer people in prison. Prosecutors under Attorney General Eric Holder curbed their cases against drug offenders. Holder then said that the population of 220,000 inmates in federal prison had to come down … that was in 2013. It would take another 5 years when, literally, an act of congress put the First Step Act on President Donald Trump’s desk.
The implementation of the First Step Act (FSA) has been slow. It was only in the past few weeks that the final version of the FSA has started to be defined. Three years after its passing, the BOP has interpreted one of the most influential parts of FSA, which is Earned Time Credits (ETC). The initial interpretation of ETC was that prisoners could participate in certain programs to better themselves and earn credits toward more time in halfway houses, residential transition centers. However, there was significant push back of this interpretation from congress who stated that the intent of FSA was to release more people from prison. In the last few weeks, the more liberal interpretation of ETC has come into being and thousands of people are exiting the prison system.
The BOP has started to calculate the ETCs and appear to be prioritizing the release of those prisoners on home confinement or at halfway houses. Over the past 2 weeks, populations of those on home confinement and halfway house show thousands of people released from custody while the BOP populations have remained steady. Look for that trend to reverse as those in prison make their way to halfway houses and home confinement .. or release from prison.
One concern is that there does not appear to be a consistent way these ETCs are being calculated at each institution. Case managers, who have been keying in classes that prisoners have taken over the past two years, seem to have a liberal way of calculating ETC and those who I have spoke to about their release have no idea how their release date was calculated. As one man told me, “I was just happy to be released and don’t care how they calculated it.” However, for the man or woman sitting in prison, it makes a huge difference.
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Many advocates may be giving one another high-fives, but, as history has demonstrated, the BOP somehow finds a way to mess up a good thing. The law. already has flaws as there are a number of exceptions carved out to prevent some offenses from being ineligible from earning ETC. Look for those to be challenged in court.
National Association of Criminal Defense Lawyers (NACDL) President Martín Antonio Sabelli issued a statement; “The First Step Act reflects a commitment to redemption and rationality in the criminal legal system. We welcome BOP’s long overdue implementation of a rule designed to make our communities safer by reducing recidivism and by treating people caught in the system with humanity. 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 which allow incarcerated people to prepare to re-join their families and communities.”
We will see how long this momentum last.
