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Federal Sentencing Alliance Letter to Congress RE: S. 1014 First Step Implementation Act of 2021

Updated: Aug 14

Federal Sentencing Alliance sent a letter of support to Senator Dick Durbin praising his efforts regarding this important legislation aimed at furthering First Step Act of 2018 and Second Chance Act of 2018 implementation, expanding inmate standing to complain, and expanding District Court jurisdiction and authorities. The text of the letter sent is cited in full below.


S. 1014 is in addition to other prison reform Bills being considered in 2021, as found HERE


Additionally, Federal Sentencing Alliance suggested two further amendments for consideration related to 18 U.S.C.§ 3582(c)(1)(A)(i) (compassionate release to home confinement) and to 18 U.S.C. § 3632(d)(4)(earning prison time credits for successful completion of recidivism reduction programs and other productive activities).


The text of the Federal Sentencing Alliance letter to Congress follows:


Federal Sentencing Alliance 2200 NW Corporate Blvd., Suite 404, Boca Raton, FL 33431 - 561-717-3000

July 28, 2021 Senator Dick Durbin 711 Hart Senate Building Washington, D.C. 20510 Dick@Durbin.Senate.gov RE: S. 1014 First Step Implementation Act of 2021 Dear Senator Durbin: We are following your progress on S. 1014 regarding several substantive implementation enhancements to the First Step Act of 2018 (“Act”). Thank you for your efforts in drafting this important legislation. Since the Act became law, our organization has published several books, including some critically analyzing certain provisions of the Act. We are taking this opportunity to point out two specific areas that you may consider incorporating into S. 1014. In the event we can be of service to your office in drafting the provisions for either one or both of the recommended amendments delineated below, we would be glad to do so.

Recommendation #1: Section 101, 18 U.S.C. § 3632(d)(4)- The Act enables certain qualifying inmates to earn early release (to home confinement) time credits for successful completion of approved recidivism reduction programs and approved productive activities. The intent of the Congress was to create incentives for inmates to be more receptive to modifying recidivist behaviors, and to better themselves, while rewarding those participants with a limited reduction of the incarcerative portion of their sentences. These incentives do not reduce a sentence imposed, per se, but rather, just provide for earlier release to home detention. The Operative Statute- 18 U.S.C. § 3632(d)(4)(2020) reads:

"(4) Time credits. (A) In general. A prisoner, except for an ineligible prisoner under subparagraph (D), who successfully completes evidence based recidivism reduction programming or productive activities, shall earn time credits as follows: (i) A prisoner shall earn 10 days of time credits for every 30 days of successful participation in evidence based recidivism reduction programming or productive activities.

(ii) A prisoner determined by the Bureau of Prisons to be at a minimum or low risk for recidivating, who, over 2 consecutive assessments, has not increased their risk of recidivism, shall earn an additional 5 days of time credits for every 30 days of successful participation in evidence based recidivism reduction programming or productive activities." Id.

18 U.S.C. § 3632(d)(4), as written, has not and will not result meaningful early release time credits earned by inmates, because the Bureau of Prisons interprets “one day” of successful participation in programming to really mean “24 hours” of successful participation in programming. Under the present scheme for awarding earned time credits, it is impossible to meaningfully reduce any incarcerative sentence, prior to expiration of the incarcerative sentence imposed by the Courts. Moreover, inmates presently have no standing to complain that earned time credits are not being applied properly. The lack of standing to complain makes those provisions ultra vires. It will not be long until inmates realize their actual incentive for engaging this programming is nil, which would also be disastrous for thousands of contractors providing recidivism reduction behavioral modification programs and other productive activities to facilities nationwide. 18 U.S.C. § 3632(d)(4)(A) should be amended as follows:

(i) A prisoner shall earn 10 days of time credits for every 30 days, or any part thereof, of successful participation in evidence based recidivism reduction programming or productive activities. (ii) A prisoner determined by the Bureau of Prisons to be at a minimum or low risk for recidivating, who, over 2 consecutive assessments, has not increased their risk of recidivism, shall earn an additional 5 days of time credits for every 30 days, or any part thereof, of successful participation in evidence based recidivism reduction programming or productive activities.

The additional language “or any part thereof” should help clarify the intent of Congress to award one day of earned time credit for every three days an inmate spends engaged in approved programming or productive activities to completion, e.g. for every day in the program, not just for actual classroom hours, per se. We have enclosed our publication ‘First Step Act of 2018: Early Release Earned Time Credit Disparities’, which elaborates on the need for awarding proper early release time credits, in Part II thereof, and why 2 ½ years later these provisions of the Act have not been meaningfully implemented. Recommendation #2: 18 U.S.C.§ 3582(c)(1)(A)(i)- Please consider amending this Subsection to read:

(i) extraordinary and compelling reasons, as determined by the policy statements of the United States Sentencing Commission, or other reasons that the court finds to be extraordinary and compelling reasons in defendant’s case; or”


During Covid-19 ninety four United States District Courts addressed whether the Courts had authority to Grant motions for compassionate release based upon other reasons not stated by United States Sentencing Commission policy statements.


District Court’s need authority to be able to find other reasons particular to any given case rising to the level of extraordinary and compelling reasons for compassionate release, regardless of whether those reasons are stated in United States Sentencing Commission policy statements or not. This is especially true, considering the void created by no present United States Sentencing Commission quorum issuing guidance pertinent to First Step Act provisions. The Courts have, and will, continue to fill the void in the interim. The Courts should have greater authority to fill this void.


During Covid-19 hundreds, if not thousands, of motions for compassionate release were granted by District Courts nationally, finding that they had authority to consider other reasons for compassionate release. It is time that 18 U.S.C.§ 3582(c)(1)(A)(i) be changed to actually grant District Court’s authority to make that determination, on a case by case basis.


The majority of United States Circuit and District Courts would welcome the authority to determine exactly what grounds constitute extraordinary and compelling grounds for compassionate release in their courtrooms and on a case by case basis.


We have invested thousands of hours analyzing these two provisions of the Act and clearly see the need for amendment now to make these two provisions more relevant and transparent.


We would like an opportunity to meet with you briefly in Washington to discuss these matters in greater detail, and provide you with any further documentation in our possession supporting the need for these changes recommended. Please advise whether you would consider embracing these additional changes as a supplement to S. 1014.


Thank you for your time and timely consideration of these very important matters.

Sincerely,

---


Federal Sentencing Alliance applauds the efforts of Senator Dick Durbin regarding S. 1014.


See also this November 19, 2019 Press Release by Senator Durbin regarding the First Step Act, some eleven months after the First Step Act became law in December, 2018.


Federal Sentencing Alliance will monitor the progress of this important Legislation and post any material updates thereto on its LinkedIn Page found Here.


Federal Sentencing Alliance © 2021



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