The First Step Act – Q1 2024 Facts & Findings

The First Step Act was a bipartisan criminal justice reform bill that was signed into law by President Donald J. Trump on December 21, 2018. The act has had meaningful impacts on non-violent incarcerated offenders in the federal prison system and their families. This act encourages and assists offenders to earn additional time off their sentence for completing approved programs as assigned by the act. The act, which is an acronym for Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person, was intended to reduce prison populations and prison sentence lengths for non-violent offenders, to promote programs aimed at assisting offenders with returning to society, and to lessen chances of recidivism.

A summary report prepared for members and committees of Congress by Nathan James, an analyst in crime policies (2019), provides that the act has three major components:

  1. Correctional reform via the establishment of a risk and needs assessment system at the Bureau of Prisons (BOP),
  2. Sentencing reform via changes to penalties for some federal offenses, and
  3. The reauthorization of the Second Chance Act of 2007. The act also contains a series of other criminal justice-related provisions.

In this article, I would like to focus on the first component of the First Step Act and how the Bureau of Prisons incorporated this new law to provide the inmate population with the resources and information to take advantage of the incentives provided.

The First Step Act requires the Department of Justice (DOJ) to develop a risk and needs assessment system to be used by the Bureau of Prisons to assess the risk level of recidivism of inmates and to place inmates in programs and productive activities to reduce the risk. Inmates who complete the programs and productive activities as indicated on their risk and needs assessment can earn additional time credits for pre-release custody (home confinement or residential reentry centers, commonly known as halfway houses) sooner than they were previously sentenced. The First Step Act established Federal Time Credits (FTCs), which inmates can earn through their completion of Evidence-Based Recidivism Reduction (EBRR) programs and Productive Activities (PA). 28 C.F.R. § 523.42 (2018)

Inmates must meet eligibility criteria to earn and apply for Federal Time Credits under the First Step Act. Congress also created a list of disqualifying offenses that will deem an inmate ineligible to earn FTCs and disqualify them from the program. When an inmate is eligible for the FSA program and eligible to earn FTCs, there are additional eligibility criteria that must be met for an inmate to apply those earned time credits. Application of earned time credits is not automatic. The First Step Act required the Attorney General to develop, for use by the BOP, a recidivism risk instrument that would objectively assess an inmate’s current level of risk for becoming a repeat offender. This is considered the Prison Assessment Tool Targeting Estimated Risk and Need (PATTERN) score and, to apply those credits that have been earned through programming, their PATTERN score must be low or minimum while incarcerated for two consecutive program review assessments. These assessments are done quarterly by BOP staff. As the inmates continue to complete approved programming courses, those programming days continue to accrue until they have met the eligibility requirements to apply those credits per policy near their pre-release custody dates. Id.

Under the act, the BOP implemented a system to guide the type, amount, and intensity of recidivism reduction programming and productive activities to which each prisoner is assigned. The program includes information on which programs inmates should utilize based on their criminogenic needs and the way that BOP can tailor programs to the specific needs of each inmate to reduce their risk of becoming repeat offenders. The act also requires BOP to take steps to screen inmates for dyslexia and to provide programs to treat inmates who have it. BOP is required to expand the capacity of recidivism reduction programming and productive activities so that all inmates have the same opportunity to participate in risk reduction programs within two years of BOP completing the initial risk and needs assessment for all inmates. During this two-year period of expansion of programming, inmates who are nearing their release date are given priority for placement in such programs. Id.

BOP is required to provide all prisoners with the opportunity to participate in recidivism reduction programs that address their specific needs or productive activities throughout their term of incarceration. High- and medium-risk inmates are to have priority for placement in recidivism reduction programs, while the program focus for low-risk prisoners is on participation in productive activities. Inmates who successfully participate in programming are required to be reassessed not less than annually, and high- and medium-risk inmates who have less than five years remaining until their projected release date are required to have more frequent reassessments. If the reassessment shows that an inmate’s needs or risk of recidivating have changed, the BOP is required to reassign the inmate to programming that matches those changes. Id.

The First Step Act, while serving many purposes, gives inmates rewards and incentives and promotes programming by allowing those eligible to earn up to 10 days of time credits for every 30 days
of program participation. Inmates who are scored as a minimum or low risk, who have completed recidivism reduction or productive activities, and whose assessed risk of recidivism has not increased over two consecutive assessments are eligible to earn an additional five days of time credits for every 30 days of successful programming. The act also requires BOP to develop guidelines for reducing time credits earned for inmates who violate institutional rules or rules of the programming courses. The guidelines must also include a description of a process for inmates to earn back any time credits lost due to misconduct. Id.

The act prohibits inmates convicted of any one of dozens of offenses from earning additional time credits. Offenses that make inmates ineligible to participate in the First Step Act program can generally be categorized as violent, terrorism, espionage, human trafficking, sex and sexual exploitation, repeat felons in possession of firearms, certain fraud offenses, or high-level drug offenses. Other criteria that will deem an inmate ineligible to earn Federal Time Credits under this program are inmates who are subject to a final order of removal under immigration law, military inmates, federal inmates in state custody, and inmates sentenced under the Code of the District of Columbia (DC Code). Id.

The implementation date for programming was December 21, 2018, when the act was signed into law, and inmates cannot claim earned time credits prior to that date. In order to earn the time credits, they must be enrolled and successfully participating in the programming. Programming may begin as soon as they are incarcerated and are eligible for the program. Application of the earned time credits is done once the criteria are met. Those inmates who are out on hospital visit furloughs, out on federal or state writs, or not programming do not earn while in non-earn status. Inmates who refuse any programming course as outlined based on their needs assessment also do not earn time credits.

The implementation of the First Step Act required the DOJ to develop and administer a training program for BOP staff on how to use the risk and needs assessment system and how to properly decipher eligibility for inmates for them to begin programming and earning. To this day, training still takes place for BOP staff to ensure that the system is being utilized appropriately and consistently. The DOJ conducts annual audits on the system’s use. The First Step Act was a challenge at first but, with the dedicated staff at the BOP, implementation has come a long way, and the act has fulfilled its purpose and will continue to do so throughout the continued efforts for criminal justice reform.

Author Biography:

Amy L. Landers, CP, ALP, has been a paralegal for four years and is currently a paralegal for the US Department of Justice in Yazoo City, Mississippi. Amy specializes in habeas corpus and Bivens litigation with a strong emphasis on the First Step Act (FSA) and the Federal Tort Claims Act (FTCA). Amy earned her BS in paralegal studies at Mississippi College and serves on the board of the Mississippi Paralegal Association as the Vice President. Amy received her CP® credential from NALA in 2022 and her ALP credential from NALS in 2021.