According to prisoner advocacy groups, former federal prison officials, thousands of federal prisoners who are eligible for early release under the Trump-era law, but are not violent, remain locked up almost four years later. This is due to insufficient implementation, confusion, and bureaucratic delays.
According to prisoner advocates, even the Biden administration’s attempts to clarify the First Step Act by identifying qualified prisoners and then transferring them to home confinement or another type of supervised release seems to be failing.
The federal Bureau of Prisons was the Department of Justice’s task. However, Michael Carvajal (a Trump Administration heir) announced his resignation in January amid criticism of his chaotic tenure that was marred by scandals at the agency. Criminal justice advocates claim that the bureau’s refusal to let even one person be held beyond the First Step Act’s limits exposes its ongoing failures.
Kevin Ring, president and CEO of FAMM (Families Against Mandatory Minimums), stated that “it shouldn’t be so complicated” and that it shouldn’t take too long. It’s frustrating to see where we are four years later.
In January, the Justice Department published a final ruling that implemented an integral part of the law. Time credits are earned by inmates through participation in work and prison programs. These credits can be used to help them get out of jail early.
Advocates say the problem is that they are not identifying prisoners whose time credits aren’t being applied and, in some cases, aren’t releasing them as soon as they should.
Courtney Curtis was a former Missouri state legislator who was sentenced to 21 months federal prison last year for wire fraud in connection to misallocation campaign funds. In a letter shared to NBC News, Curtis stated that his time credits had not been properly counted after he participated in programs like “Be Successful,” and “Drug Education.”
Curtis, 41 years old, is currently being held at the Federal Correctional Institution Elkton, Ohio. He stated that he has not had his time credits increased since January and that if they were, he thinks he would have been released around June. His release date for now is Oct. 22.
He wrote that he was one of many inmates who has received FSA benefits. “I have made great strides to study, work, and be productive. But the BOP and its systemic inefficiency have prevented me from taking the required classes or releasing me when I should’ve been. I wonder if this is intentional and how many other inmates are affected.”
The Justice Department refused to comment on Curtis’ case due to privacy reasons.
According to data from the Bureau of Prisons, more than 8,600 prisoners had had their sentences recalculated by June 18 and were slated for release after applying their time credits. It is not clear how many qualified prisoners are eligible to be released early, but still remain in prison.
Bureau officials responded that they did not have any data suggesting that inmates were delayed with their release dates.
Industry experts disagree with this assertion, despite the fact that the bureau has data on approximately 66,600 prisoners who are eligible for time credits.
Walter Pavlo, President of Prisonology LLC and founder of the consulting firm Prisonology LLC said that “we estimate there are thousands of prisoners who will not get the full benefit — days of their federal prison sentence — of The First Step Act simply because they are uncertain how to calculate this benefits.” He added that former Bureau of Prisons case managers, wardens, and sentence computation professionals were among the experts at Prisonology LLC.
Holly Harris, a Republican strategist, was instrumental in securing passage of the First Step Act. She is the head of the nonpartisan Justice Action Network and said that the change of administrations does not excuse a slow rollout.
“Not only that but, the Biden administration ran criminal justice reform and now we can’t get answers for anything,” she stated. She also said that Carvajal’s replacement “dig in quickly” and “prioritize those individuals who are just languishing behind bars unnecessarily to the excessive expense of the taxpayer.”
The bipartisan First Step Act was signed by then-President Donald Trump in 2018 to decrease recidivism, reduce federal prison population and improve conditions. Although the number of federal prisoners has declined in recent years, it still holds more than 140,000. The law’s supporters claim it can reduce particularly harsh sentences for nonviolent drug offenders, and decrease the racial disparities that affect people of color in criminal justice.
According to the Justice Department, over 3,000 prisoners were released early from prison within the first year of the law. The total number is now more than 7,500. The Prisoner Assessment Tool Targeting estimated Risk and Needs (or PATTERN) is used to assess an inmate’s eligibility. It scores them in various categories including their history of violence, and whether or not they have been involved in serious incidents while in prison. This information helps determine if they will re-offend. To be eligible for time credits under the First Step Act, prisoners must have a minimum or low risk of reoffending and not been convicted of serious crimes.
Time credits are awarded based on the inmate’s participation during a 30-day period in prison and in work programs related to anger management and financial literacy. Other topics that address behavior and instill skills in individuals include mental health and financial literacy. After the credits have been calculated and the sentences are completed, the inmate may be released from prison to “pre-release custody,” which could include a halfway house or home confinement. Others may be eligible for supervised freedom, such as probation.
Prisoner advocacy groups claim that the availability of rehabilitation programs varies depending on where they are located. This means that some inmates can’t get enough earned time credits. Due to the Covid pandemic, staffing shortages have made matters worse.
Some inmates also claim that even though they have taken the right classes, their time credits don’t get regularly calculated. This could delay their release sooner.
Final rule by the Justice Department allows time credits to retroactively be counted for all prison and work programs that inmates took part in after the First Step Act was passed in 2018. Pavlo stated that the Bureau of Prisons did not have the necessary mechanisms to track inmates’ participation. He is concerned that the agency is “not facilitating the timely calculation of and application of time credit in accordance to the final rule and forcing inmates to serve custodial sentences longer than required.”
He said that he had seen prisoners in prison for six months to one year, and could have been released earlier or placed in pre-release custody.
Pavlo stated that the biggest problem was that no one on the frontlines seems to be able to grasp the new rule. Pavlo stated, “There should be a taskforce on this.”
After concerns from advocates that certain risk categories the algorithm examines could lead to increased racial disparities, the Justice Department stated that it will continue to evaluate the use of the PATTERN algorithm. According to agency statistics, about 55% of white inmates were deemed “minimum” or low risk of recidivism in November’s data. This compares with just 28% of Black inmates.
The Justice Department stated in its 2022 annual report on the effectiveness of the First Step Act that it would be implementing an updated version of PATTERN to “attenuate against various racial or ethnic disparities associated prior risk levels.”
Jim Felman, a Florida criminal defence attorney, has reviewed the First Step Act and said that more transparency is required about how the algorithm works to ensure that prisoners aren’t left behind, especially since Blacks and Latinos continue to be overrepresented in U.S. jails.
He said that the federal government had “shown the rest of the world how we lead in prison, but also how we can lead in getting people out.” “Why shouldn’t we allow every mathematician to see our data, so that we can assess how racist any new version might be?”
In an email, the Bureau of Prisons stated that Attorney General Merrick Galrland had “directed the continued investigation of the tool in order to improve the efficiency, predictive validity, and equitability of the risk assessment system.”
Former prisoners, such as Dianthe Brooks (52), who pleaded guilty to wire fraud in an $1,000,000 kickback scheme, have felt the frustration.
She claimed she was moved from Danbury, Connecticut to home confinement in 2020 after she was released from prison early. This was because of underlying medical conditions that could make her more vulnerable to Covid. Her ankle monitor was only removed after her time credits were recalculated under renewed Biden administration efforts in January. Based on her time credits, she believes that this would have occurred in June 2021 if the program had been operating as it was intended.
Brooks now advocates for Danbury inmates and other prisoners across the country, to make sure they know their rights.
She said that it was still unclear how they calculate time. “Nobody can give a guideline for which classes are eligible, how much credit you will get, and how to apply them. It doesn’t exist. How can I know if my time has been calculated correctly?
Alice Phillips, a former Danbury prisoner and prisoner advocate, stated that she was shocked to discover that manual labor, which she had done in the prison grounds crew’s yard crew, didn’t qualify her for time credits. She claimed that she received no guidance from the prison other than the December 2019 announcement that she was a First Step Act minimum-risk offender.
Phillips, 56, received a two year sentence in 2019 for wire fraud in connection to a real-estate scheme. She was also released from home confinement in 2020 under the Coronavirus Aid, Relief and Economic Security Act. Phillips claimed that she worked in prison-approved jobs while she was at home, but these time credits weren’t counted. This meant her probationary period would have ended in 2024 instead of 2023.
Officials at Danbury prison declined to comment on specific allegations against inmates, but stated in a statement that they communicate essential information in many ways, including via computer announcements and one-on-one program reviews appointments, and that each inmate’s release date is calculated according to federal statutes.
Phillips isn’t convinced that the First Step Act has lived up to its promises for everyone.
