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First Step Act Earned-Time Credits are Coming ... Eventually and Only to Some Prisoners

by Dale Chappell

Even though we’ve passed the one-year anniversary of the First Step Act over a month ago, the portion of the bill giving federal prisoners more earned-time credits for completing certain programs is still on the distant horizon and, when it finally does begin, many prisoners will not qualify.

According to experts on the topic, impediments still exist to full implementation by 2022. It was expected that by January 2022, eligible prisoners would be provided recidivism reduction programming based on their needs.

According to a 2018 Congressional Report, the new programming will be designed to determine (1) a prisoner’s recidivism (and not security) level, (2) a prisoner’s risk of violence or “misconduct,” (3) the type of programming for each prisoner, (4) the needs for each prisoner periodically, and (5) when a prisoner is ready to “transfer into prerelease custody.”

An important point is that prisoners will not get more time off their sentence under the earned time credit program. Instead, they will only be eligible for more halfway house or home confinement time beyond the limits already in place: 12 months for halfway house and six months (or 10 percent of the sentence) for home confinement.

A prisoner can earn up to 15 days of credit for every 30 days of qualified programming. But “large categories” of prisoners won’t be eligible for these credits at all, the experts noted.

Some of those categories identified as excluded from the earned-time credits will be: (1) all sex offenders, (2) offenders who trafficked in fentanyl, (3) offenders who played a leadership role in heroin or methamphetamine cases, (4) violent offenders, and (5) immigration cases.

However, prisoners in these categories can earn other benefits, such as more phone and email time and more options at commissary. That’s if they have the money to take advantage of those “incentives.”

A major obstacle to implementing the earned-time credit programming is the risk assessment tool developed by the Bureau of Prisons called “PATTERN.” This tool has been criticized by experts because of its “racial bias and lack of transparency, fairness, and scientific validity.” The Department of Justice says that PATTERN “is currently undergoing fine-tuning.”

Another obstacle is the availability of halfway house beds. In certain parts of the country, there’s a shortage of halfway house beds for federal prisoners. The First Step Act did not address this or provide any funding to fix the problem.

Analysts of the new earned-time credit program say that because the PATTERN risk assessment tool hasn’t been put into place yet, programming done before the tool is finalized will not apply retroactively. This means that the programming in place at the moment will not qualify for earned-time credits until PATTERN is completed. And that’s not expected to happen for at least another two years. 

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Source: news.bloomberglaw.com

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