The First Step Act was enacted in December 2018. One of the major components of the First Step Act was the establishment of a risk and needs assessment system at the Bureau of Prisons along with the opportunity for inmates to earn time credits for recidivism reduction program participation. The Congressional Research Service prepared “The First Step Act of 2018: An Overview” that explains the components of the Act and explains the earned time credits for program participation in this way:
Under the act, prisoners who successfully complete recidivism reduction programming are eligible to earn up to 10 days of time credits for every 30 days of program participation. Minimum and low-risk prisoners who successfully completed recidivism reduction or productive activities and whose assessed risk of recidivism has not increased over two consecutive assessments are eligible to earn up to an additional five days of time credits for every 30 days of successful participation. However, prisoners serving a sentence for a conviction of any one of multiple enumerated offenses are ineligible to earn additional time credits regardless of risk level, though these prisoners are eligible to earn the other incentives and rewards for program participation outlined above. Offenses that make prisoners ineligible to earn additional time credits can generally be categorized as violent, terrorism, espionage, human trafficking, sex and sexual exploitation, repeat felon in possession of a firearm, certain fraud, or high-level drug offenses. Prisoners who are subject to a final order of removal under immigration law are ineligible for additional earned time credits provided by the First Step Act.
You may be wondering what constitutes a “violent” or “high-level drug” offense that would make an inmate ineligible for the earned time credits through the recidivism reduction programming. All of the excluded offenses can be found at 18 U.S.C. § 3632 (d)(4)(D). Notably, it appears that most inmates with drug offenses other than those involving “N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide, or any analogue thereof” would qualify unless “death or serious bodily injury resulted from the use of such substance” or “if the sentencing court finds that the offender was an organizer, leader, manager, or supervisor of others in the offense, as determined under the guidelines.”
For example, methamphetamine offenses are very common in the Western District of Missouri. In 2015, methamphetamine offenses made up 47.1% of all drug offenses in the Western District of Missouri compared to methamphetamine comprising 28.5% of federal drug offenses nationwide. An inmate convicted of conspiracy to distribute methamphetamine who was not the leader of the conspiracy would likely qualify for earned time credits (with a few exceptions such as inmates subject to deportation).
If inmates are serving sentences for one of the disqualifying offenses listed in 18 U.S.C. § 3632 (d)(4)(D) such that they cannot earn time credits, they can still earn other incentives and rewards for participating in the recidivism reduction programming. These include but are not limited to phone and visitation privileges, transfer to an institution closer to the inmate’s release residence, increased commissary opportunities, and extended email access.
An interesting part of the Act is that inmates will now be screened for dyslexia and “[t]he Attorney General shall incorporate programs designed to treat dyslexia into the evidence-based recidivism reduction programs or productive activities required to be implemented under this section.” 18 U.S.C. § 3632 (h).
Finally, according to the Department of Justice, certain inmates are excluded from participating in recidivism reduction programs or productive activities. Such circumstances include when inmates are: placed in a Special Housing Unit; in designation status outside the institution (e.g. for an outside medical trip, an escorted trip, etc.); in the custody of another jurisdiction (e.g. on state or federal writ; transfer to state custody for service of sentence; transfer to ICE, etc.); under medical/mental health/psychiatric holds; in detention as a material witness or for civil contempt; under Adam Walsh or other civil commitment; and refusing to participate in programs.
If you have questions about the First Step Act or other legal matters, contact the attorneys at Carver, Cantin & Mynarich today.