First Step Act - What's the Hold Up?

Federal prison inmate awaiting release

In 2018, former President Donald Trump signed the bipartisan First Step Act as a way to reduce recidivism under convicted offenders and to ease the federal prison population. The Justice Department implemented a key feature of the law in which inmates can earn so-called time credits. However, the Bureau of Prisons has been slow in implementing the program due to staff shortages, attempts to address COVID-19 in prisons and poor leadership has resulted in men and women remaining in prison well beyond what their release dates would be under FSA.

In order to collect time credits for early release under the First Step Act, inmates must be at a “minimum” or “low” risk of reoffending and not have been convicted of certain serious crimes. Time credits are granted based on an inmate’s participation in prison and work programs over a 30-day period related to anger management, mental health, financial literacy and other topics that seek to address behavior and instill personal skills. Once the credits are calculated and it is determined those credits equal the time left on the sentence, the inmate can be transferred out of prison into “pre-release custody,” such as a halfway house or home confinement. Some may also be eligible for supervised release like probation.

Nevertheless, thousands of nonviolent federal prisoners eligible for early release under this new law remain locked up nearly four years later. Prisoner advocacy groups, affected inmates, and former federal prison officials say the majority of the inaction is because of inadequate implementation, confusion, and bureaucratic delays. The problem, advocates say: They are identifying inmates whose time credits aren’t getting applied, and in some cases, the inmates aren’t getting released as early as they should be.

Data provided by the Bureau of Prisons shows that as of June 18, more than 8,600 inmates have had their sentences recalculated and are slated for release with the application of their time credits. But it’s unclear how many qualified inmates are entitled to have been released early but remain incarcerated.

In a response, bureau officials said, “We have no data which suggests inmates had their release dates delayed.” But with the bureau’s own data identifying about 66,600 inmates who are eligible to earn time credits, some industry experts disagree.

“We estimate that there are thousands of inmates who will not receive the full benefit — days off of their federal prison sentence — of the First Step Act simply because the agency is uncertain how to calculate these benefits,” said Walter Pavlo, president of the consulting firm Prisonology LLC, whose experts include former Bureau of Prisons case managers, wardens and sentence computation professionals.

Even the Biden administration’s attempt to provide clarity to the First Step Act by identifying qualified inmates and then transferring them to home confinement or another form of supervised release appears to be falling short, according to prisoner advocates familiar with the law.

“It shouldn’t be this complicated and it shouldn’t take this long,” said Kevin Ring, president of the nonprofit advocacy group Families Against Mandatory Minimums, or FAMM. “Here we are, four years later, and it’s maddening.”