Bureau Of Prisons’ Video On First Step Act Lays Out Program

WASHINGTON - Bureau of Prisons Director Colette Peters testifies as Justice Department Inspector ... [+] General Michael Horowitz listens during the Senate Judiciary Subcommittee on Criminal Justice and Counterterrorism hearing. (Bill Clark/CQ-Roll Call, Inc via Getty Images)

Federal Bureau of Prisons (BOP) Director Colette Peters had a new video released in an attempt to clarify the rules under which First Step Act credits are earned and applied toward a term of incarceration. It represents a leap in transparency by explaining both the rewards prisoners can earn to get home sooner and the complexities of the First Step Act, which was signed into law under President Donald Trump in December 2018. A full transcript of the video is available here.

The BOP’s video demonstrated both how far the Agency has come in implementing the First Step Act but it was also an effective way to communicate to both prisoners and staff about the attributes of the law. This video comes after a report by NBC News about how many prisoners are being left in prison longer than necessary. Case managers, who are on the front line of implementing this law, are encountering problems because of own their interpretation of the law and halfway house capacity issues. It is a complaint I often hear from prisoners who feel that they are not getting the full benefits of First Step Act.

In 2013, the BOP issued guidance on the challenges they had with capacity at halfway houses across the country. The memo, written 5 years prior to the First Step Act which requires even more halfway house space, stated “The Bureau's RRC resources continue to be limited and must be focused on those inmates with the greatest need and the highest risk of recidivism.” The criteria for halfway house placement of prisoners is to consider community safety and the need to provide supervision to those who need the services, such as housing, as they transition back into the community. Even with the advent of the First Step Act, halfway house capacity is still a problem and there will growing demand as the law will place more people in halfway houses for longer periods of time.

Counter to the BOP’s guidance to place those with needs in halfway houses, the primary beneficiaries of First Step Act sentence reduction and extended halfway houses are those who have minimum or low chance of recidivism or violence, which is measured by the BOP through the use of a PATTERN score. The lower the PATTERN score, the lower the chances of future violence or a return to prison. However, the 2013 guidance and other BOP program statements mention that halfway house placement should not be given to those least likely to reoffend because “... research indicates that inmates with low needs and a low risk of recidivating who are placed in an RRC [halfway house] do not benefit from the placement and could become more likely to recidivate than if they received no placement.” I could find no citation for research that would explain how those prisoners who have been identified the least likely to commit another crime become more likely to do so if given the benefit of being in the community at the end of their sentence. One former BOP executive stated that the reasons for such a claim could be because both high security prisoners mix with lower security prisoners and influence negative behavior. Again, there is no research to corroborate this claim.

Case managers in the BOP are on the front line of implementation of the First Step Act but it takes others in the BOP to work in conjunction with them to get the outcome that many prisoners were promised. As prisoners near the end of their sentence, case managers submit a referral to Residential Reentry Managers (RRMs) who coordinate the flow of prisoners from institutions to the community (halfway house or home confinement). These RRMs reply back to case managers with a date that states when the prisoner will leave the institution for prerelease custody. However, many prisoners tell me that the BOP could do more to return them to the community sooner, something that lawmakers considered when they passed the First Step Act.

One benefit that prisoners are looking for is the ability to get benefits of the First Step Act along with those under the Second Chance Act, which was signed into law by President George W. Bush. The Second Chance Act allows prisoners to spend up to a year in prerelease custody (6 months of halfway house and 6 months of home confinement) during the last year of their sentence. Many refer to the practice of using both the First Step Act and Second Chance Act as “Stacking,” allowing prisoners to get the benefits of both laws that will place them in the community sooner.

The BOP video explicitly stated that the BOP does ‘stack’ both acts. According to Dr. Jason Gabel, North Central Regional Office Regional (NCRO) Psychology Services Administrator and Jeremy Cooper, NCRO Correctional Programs Administrator, who conducted a Town Hall at FCI Englewood, stacking is encouraged. Mr. Cooper stated, “Yes .... in short, yes, we can we stack them [First Step Act and Second Chance Act]. So you have your Second Chance Act home confinement eligibility date. That's either six months or 10% of your sentence, whichever is shorter, right? So we would take that and then add your FTCs towards it, and you can go to that entire portion to home confinement.” According to many prisoners, this is not happening across the BOP.

Cooper added that the BOP does have challenges in assessing when someone would leave the institution. “It’s one of the hardest things for case managers to do right now. So we [BOP] don't currently have a projected or a calculator in there for case manager to see how much time credit you're going to earn towards halfway house,” Cooper said. With no calculator, there can be no stacking to determine when a person should be placed in home confinement and this calculator has been promised for months.

The BOP currently front loads other credits such as Good Conduct Time (54 days/year) and credits for the Residential Drug Abuse Program (up to a 12 months off of a sentence) prior to the actual earning of these credits. They do this so that they can plan for a person’s return to society. Implementation of a calculator to predict when an prisoner will leave an institution to begin life in prerelease custody is imperative but sorely lacking.

Even though Cooper went on to talk about the use of ‘stacking’ he did not address the underlying problem of the calculator. Cooper said, “Let's say your unit team is reviewing you for consideration of pre release placement under the provisions of the Second Chance Act and recommend 180 day placement. You have also earned 400 days of FTCs toward pre release you would then be referred for a 580 day pre release placement. As you can see, FTC eligible adults in custody that meet all the requirements can earn a significant number of FTCs.” It is clear as to the BOP’s intent, but there is no calculator to assist case managers in moving men and women out of institutions sooner.

Dr. Gabel went on to emphasize that “It’s important for you to know that you can seek review of any FTC related issues through the administrative remedy process, and we would encourage you to do so.” However, the administrative remedy process is not as effective as Dr. Gabel stated. Prisoners are telling me that case managers simply are not fully aware of all of these rules and the remedy process is broken as it relates to First Step Act because many staff do not understand the nuances of the law.

One prisoner, Seth Johnston, has been in prison at FCI Butner satellite camp for years and has not only earned First Step Act credits toward reducing his sentence but hundreds of more credits toward home confinement. His current release date from the BOP is February 22, 2029, but he will earn enough credits toward home confinement that could have him released in July 2026. If given the full amount of Second Chance Act that would mean leaving the institution in July 2025. Since nobody has spoken to Johnston about leaving for home confinement in the coming year, he was concerned and asked his case manager about the total number of credits he will earn and when he might be leaving the institution. The response he received to his question, which was part of an administrative remedy, was that “Central Office advised they have no update or info regarding when the second application [projected date of leaving the institution] may be available. So Johnston, like many prisoners, has no where to go for answers as to when he will go home.

Dr. Jason Gabel closed the town hall in Englewood by saying, “The whole reason we are here is because we need everyone to be on the same page so everyone can reach the maximum benefits of the FSA as it's written today.”

The video is a great start to allowing staff and prisoners to have a conversations about a prison term and the rights of prisoners under the First Step Act. Another good use of the video is to have it played at Town Halls around the BOP so that prisoners can begin to have a dialogue to one simple questions, “When will I be going home?”

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