First Step Act Of 2018 - Recidivism Reduction Programs & Productive Activities The Rights & Remedies
One of the major provisions of the First Step Act Of 2018 enables inmates convicted of certain non violent offenses to earn prison program and activity time credits for earlier release. The new system is intended to reward model inmates that want to help themselves.
The “time credit” provision of the First Step Act Of 2018 is now codified into 18 U.S. Code § 3632 (2019), that 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.
What does that mean?
1. A prisoner with a non-violent qualifying offense(s), who receives a recidivism risk assessment and is deemed to have a low or minimum risk of recidivism, can sign up for “productive activities” and get a 10 day time credit for every 30 days successfully spent engaged in productive activities while incarcerated. That same prisoner after receiving a second consecutive low or minimum risk of recidivism assessment, can up their time credits from 10 to 15 days for every 30 days successfully spent engage in productive activities.
2. A prisoner with non-violent qualifying offense(s), who receives a recidivism risk assessment and is deemed to have a medium or higher risk of recidivism, can sign up for “evidence based recidivism reduction programming” and still get the same 10 day time credit for every 30 days successfully spent engaged in recidivism reduction programs, while incarcerated. That same prisoner would also have incentive with hard work toward achieving two consecutive low or minimum recidivism risk assessments, in order to be aptly rewarded by earning an additional 5 days of time credits per 30 days spent successfully engaged in those continued programs; and to open the door for the same 15/30 time credits available spent successfully engaged in productive activities.
These are some pressing questions for those who could be taking advantage of time credit programs now, but are waiting for time credit programs to become fully operational:
1. How long will it take to get a recidivism risk assessment?
2. How long will it take the BOP to implement sufficient recidivism reduction programs for everybody that needs them?
3. Are there provisions for continuous recidivism reduction programs and/or
productive activities at all facilities?
4. How long will it take to get the maximum time credits available under the law?
Although not written, it appears that many inmates who could benefit from prison time credits under the Act, either will not benefit from them, or will not benefit fully, due to the inherent time lags at the Bureau Of Prisons implementing and expanding the programs necessary to comply with the Act’s mandates.
The First Step Act Of 2018 was signed on December 21, 2018 by President Trump and became law on that date.
The Bureau Of Prisons was given authority to immediately react to the Act’s provisions for preparing the infrastructure and programming necessary to implement the Act’s program time credits; 18 U.S. Code § 3621 (h)(4) was amended to include immediate authority:
“(4) Preliminary expansion of evidence-based recidivism reduction programs and authority to use incentives.—
Beginning on the date of enactment of this subsection, the Bureau of Prisons may begin to expand any evidence-based recidivism reduction programs and productive activities that exist at a prison as of such date, and may offer to prisoners who successfully participate in such programs and activities the incentives and rewards described in subchapter D.” Id. [Use of the term “may” means that it is not mandatory that the BOP “begin” to expand it’s programs as of December 21, 2018.]
Indeed, it is not “mandatory” for the Bureau Of Prisons to “begin” to expand any evidence based recidivism reduction programs and productive activities, until January 15, 2020, pursuant to 18 U.S. Code § 3621(h)(1), infra.
Mandatory Timing Of First Step Act Implementation Dates:
The Attorney General’s Office First Deadline Date:
1.) 18 U.S. Code § 3632(a) that says that the Attorney General has 210 days from December 21, 2018 to publish a Website titled: "risk and needs assessment system", being on or before, July 19, 2019.
The Bureau Of Prisons Deadline Dates:
1.) As stated above, 18 U.S. Code § 3621(h)(1) gives the Bureau Of Prisons through January 15, 2020, 180 days from July 19, 2019, to implement and complete the initial intake of risk and needs assessment for each prisoner; and to begin to "expand" and to "add" any new “evidence based recidivism reduction” and "productive activities" programs "necessary to effectively implement the system".
2.) Next, 18 U.S. Code § 3621(h)(2) gives the Bureau Of Prisons through January 15, 2022 to make sure that all prisoners get the maximum benefit of recidivism reduction and productive activities programming; and to have inmates reassessed for recidivism as necessary to achieve the maximum credits available.
In sum, the First Step Act Of 2018 gives the Bureau Of Prisons through January 15, 2022, to make recidivism reduction and productive activities programming fully operational for the maximum achievable benefit for all inmates endeavoring to enter into these programs full time to earn time credits for early release.
Rights Without Solid Remedies?
Although the First Step Act Of 2018 confers early release rights to inmates, including the earned program time credits that are the subject of this Article, those rights are officially deferred, subject to the fully operational program date of January 15, 2022; and remain otherwise officially within the sound province of the Bureau Of Prisons. In fact the Bureau Of Prisons has the authority to cancel or reduce earned time credits as punishment. The First Step Act Of 2018 does not per se confer standing to an inmate to complain to any court for relief regarding the perceived misapplication of prison time credits to any sentence, or for any other prison program time credit complaint; however, the sentencing court may already have jurisdiction over the inmate, and may entertain the inmate's request for relief anyway.
The Nemazee Case:
Regardless of inmate's official standing conferred under the First Step Act Of 2018 to complain to a federal district court judge for early release, at least one federal inmate did so anyway in 2019, resulting in his early release. See United States Of America vs. Hassan Nemazee, United States District Court Southern District Of New York, Case No.: 1:09-cr-902-SHS. The Nemazee court made no ruling whether Nemazee had standing to file with the district court for early release, pursuant to the First Step Act Of 2018, or not. That issue was never reached, because the Bureau Of Prisons just agreed to release Nemazee while the Motion was pending. See Id. [DE 133][DE 149] In the Nemazee case, it may very well be that the district court did not have jurisdiction conferred by the Act, but did retain jurisdiction over Nemazee during the pendency of his continued sentence. Either way, Nemazee got what he wanted by filing for early release under the Act.
Although the Bureau Of Prisons is likely working on First Step Act Of 2018 time credit programming for recidivism reduction and productive activities implementation now, the Act gives the Bureau until January 15, 2022 to become fully up and running due to an extended phase in process. As previously stated, 18 U.S. Code § 3621(h)(4) gave the Bureau Of Prisons authority to start working on phase in processes as of December 21, 2018.
The pinnacle question is whether the Bureau Of Prisons will permit individual inmates to become part of these ground breaking processes, whether certain inmates are currently incarcerated, or about to be, for any particular facility; or whether all of these processes will be established without consideration of assets within the facility itself.
18 U.S. Code § 3635(5)(2019) grants the Bureau Of Prisons authority to utilize local inmate talent to “deliver” the programs earmarked for evidence based recidivism reduction programming within the discretion of the Bureau Of Prisons, as follows:
“(3) EVIDENCE-BASED RECIDIVISM REDUCTION PROGRAM.-The term "evidence-based recidivism reduction program" means either a group or individual activity that-
(A) has been shown by empirical evidence to reduce recidivism or is based on research indicating that it is likely to be effective in reducing recidivism;
(B) is designed to help prisoners succeed in their communities upon release from prison; and
(C) may include-
(i) social learning and communication, interpersonal, anti-bullying, rejection response, and other life skills;
(ii) family relationship building, structured parent-child interaction, and parenting skills;
(iii) classes on morals or ethics;
(iv) academic classes;
(v) cognitive behavioral treatment;
(vii) substance abuse treatment;
(viii) vocational training;
(ix) faith-based classes or services;
(x) civic engagement and re integrative community services;
(xi) a prison job, including through a prison work program;
(xii) victim impact classes or other restorative justice programs; and
(xiii) trauma counseling and trauma-informed support programs.” Id. At (3).
At first blush, it seems that some inmates may be able to present a program to the Warden of the facility where they happen to be incarcerated, and thereafter, become part of that facility’s programming to teach classes that fall within evidence based recidivism reduction programming at the facility. What better way to ensure receipt of maximum time credits under the First Step Act Of 2018 than to be an inmate who actually teaches the classes!
Outside Agencies And Third Party Vendors:
The Act does provide for the Bureau Of Prisons to interact with third parties for the establishment and implementation of recidivism reduction and productive activity programming, which opens the door to communication with individual facilities on these topics; and perhaps, even as these issues pertain to any particular inmate. These issues are all ground breaking and likely will be for quite some time. Although the First Step Act Of 2018 provides the shovel to break ground on these issues, any individual facility will still need to establish a network of people in the locale to implement the necessary programming and make it successful on a continuum; all before January 15, 2022.
There are no legal reasons why inmates themselves cannot be utilized in this process to deliver programs to other inmates in exchange for time credits earned for early release.
Federal Sentencing Alliance may be able to assist Attorneys facilitate program time credit processes on a case by case basis, depending on a review of the particulars in any given case. Please feel free to email Federal Sentencing Alliance to schedule a consultation.
This Article is for educational purposes only, to provoke critical thinking regarding the topical issues presented, and does not constitute legal advice. Please consult with an attorney to discuss the facts of your particular case.
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