The U.S. Department of Justice published a final rule describing how the federal Bureau of Prisons would implement the First Step Act of 2018. It was headline news that thousands of federal prisoners were now eligible for release. The news quickly spread to the rest of the nation. 153, 053 Americans incarcerated in federal prisons, first sparking hope and jubilation, then quickly followed by disappointment and confusion.
I know, because I live behind bars in one of the U.S.’s 122 federal prisons. And while I am among the fortunate ones who will (hopefully) be released early to the community where my four kids and numerous nephews, nieces and cousins live, the anticipation is bittersweet. I look around and see so many other good men who deserve a second chance, yet are denied because the First Step Act (FSA) was written to specifically exclude them. So, while it’s good news that the BOP stopped its foot-dragging and is finally moving to enforce this critical aspect of the act, what we really need is a second look at the law itself.
Passed by Congress during the administration of former President Donald Trump, at first glance, the FSA did seem to address some of the “tough-on-crime” prison and sentencing laws that ballooned the federal prison population and earned the U.S. the highest incarceration rate in the world. The act had many benefits. It reduced the harsh sentences for drug-related convictions, made it easier to petition for compassionate release, and required that the Federal Bureau of Prisons offer rehabilitation programs to help them get early release and other privileges.
The devil, however, is in the details. And the details, along with the BOP’s reluctant, fitful and arbitrary implementation, have turned the FSA into, at best, a measure of relief for a select few. The First Step Act, at its worst is a mechanism that further reinforces the discriminatory nature U.S. legal system.
A long list of individuals is excluded from the FSA’s offer of release to home confinement or community halfway houses in recognition of their participation in rehabilitation-related activities and a low risk-assessment score. According to the FSA’s independent review committee, more than half of the BOP population is disqualified from participating, even though no significant differences in recidivism risk have been documented between those who are eligible and those who aren’t.
Thus, for example, anyone convicted — often decades previously — of virtually any type of act classified as violent, or who is charged with being an “organizer, leader, manager or supervisor of others” when distributing three of the most common street drugs in use today (fentanyl, heroin and methamphetamines) is ineligible. They aren’t even given a chance to demonstrate that they ready to return to their children or parents. Forty-five percent of people held in federal prisons are incarcerated for drug-related offenses, and as a Black man who is one of them, I can attest to the lax meaning of the “leader” accusation. All it takes is for one other person to claim that you “directed” them to carry some drugs or make a call to get stuck with a charge of being a leader. These claims are often made to reduce their own penalties.
FSA earned-time credits are available to me simply because I was accused of conspiracy to sell cocaine, based only on the claim of an cooperating witness. Yet one of my friends, who was just 18 when he was sent to federal prison as a first-time “offender,” is shut out, simply because his charges involved methamphetamines and a gun. What basis can I have to believe that he is able to prove rehabilitation?
Even those of us who win this “lottery” are struggling to figure out how to meet the act’s other requirements. Earned-time credits are received in return for completing approved rehabilitation programs or “productive activities.” But the availability of approved courses varies widely from institution to institution, and due to COVID and staffing shortages, the waiting lists for what is on offer are long. I asked staff about education, and was told that only ESL classes and GED are available. UNICOR is the for-profit arm government that manufactures everything from license plates to uniforms, and the only FSA-eligible jobs at my institution. Yet other prison jobs — duties like janitorial work and food services, which keep the prisons themselves running (and for which workers are paid abysmally low wages) — don’t qualify for earned-time credit.
So, yes, the fact that the Bureau of Prisons finally did what it should have done more than two years ago is good news for those of us who fit into one of the act’s arbitrary categories and manage to jump through the other hoops. It is a small step, however, for many others. Now, Congress needs to listen to the independent review committee — and to incarcerated people and advocates around the country — and implement broader and more meaningful measures to release people from prison.
