Implementing the First Step Act: Where Are We Now?

In the Fall of 2018, Prison Fellowship^® stood alongside an extraordinary range of partners in passing the bipartisan FIRST STEP Act (FSA). Now, after decades of unsustainable population growth and shortages in rehabilitative programming in federal prisons, change is coming.

While the historic law features a range of provisions, these reforms center on a common goal: making the federal prison system a constructive culture for the restoration of incarcerated men and women.

At House and Senate Judiciary Committee hearings this fall, Congress and the public reviewed where the FSA stands in implementation. Here's what they learned.

RISK AND NEEDS ASSESSMENT

During her October testimony before the House Judiciary Committee, Department of Justice (DOJ) Attorney Deputy General Antoinette Bacon emphasized her agency's commitment to the FSA's full implementation. She reviewed the DOJ’s development of a risk and needs assessment for the Bureau of Prisons (BOP), Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN).

This criminal justice tool is designed to evaluate the recidivism risks of a prisoner based on "fixed factors" and "dynamic factors." Fixed factors are things like a prisoner's sentence type or age at the time of arrest. Dynamic factors are those a prisoner can change through his or her own positive choices during incarceration.

Under the FSA, this assessment will create a system for appropriate programs to be identified for a specific federal prisoner. Depending on their conviction type and risk level, a prisoner may be eligible to complete more of their sentence at a residential reentry center. They may even have the chance to complete it under home confinement.

This July the DOJ released a summary of its initial draft of PATTERN. The summary identified key deadlines the DOJ faces heading into January 2020:

• First, PATTERN must be further refined based on public comment.
• Second, all BOP staff must be trained on how to use the assessment.
• Third, every federal prisoner must receive an assessment under PATTERN.
• Finally, the BOP must identify which programs qualify as evidence-based and can allow for changes in a prisoner's risk level.

MORE THAN 2,000 PRISONERS RELEASED

In her committee appearances, new BOP director Katherine Hawk Sayer identified BOP's work to ensure eligible federal prisoners benefited from the FIRST STEP Act's sentencing reforms. Thanks to the law's reduction of disproportionate punishments for drug offenses, more than 2,000 prisoners qualified for sentence adjustments. Among these is 2019 State of the Union guest Matthew Charles.

An additional 3,000 prisoners were released early this July through the legislation’s recalculation of "good time credits" to fully align BOP policy with earlier legislation. (Good time credits are used by the BOP to incentivize responsible conduct.)

Sawyer drew both committees' attention to the staffing challenges facing her agency. The BOP has over 3,300 vacancies, with far more expected given the looming retirement of older staff. The Bureau's efforts to attract a new generation of law enforcement professionals will be essential to meet the FSA's promise.

NEEDED: FUNDING AND SUPPORT

The BOP and DOJ cannot implement the FSA without continued, explicit funding from Congress. Both chambers of Congress have taken key steps for funding the law's execution in the next fiscal year. In funding bills for the DOJ, both the House and Senate Appropriations Committees included full funding for the legislation's implementation in fiscal year 2020. However, larger disagreements in the federal budget process make it unclear if and when this critical funding will emerge.

Meanwhile, the implementation process for the FSA has also made clear the urgency of far more constructive programming and productive activities in federal prisons. Most strikingly, in the sample population of 222,970 prisoners used to develop PATTERN:

• 49% of the population did not complete any programming.
• 82% received no technical or vocational education.
• Similarly, 57% completed no drug treatment during incarceration despite an indicated need.

IMPLEMENTING THE FIRST STEP ACT

Without access to meaningful programming, our incarcerated brothers and sisters cannot prepare for reentry or reach their God-given potential. Through funding and proper oversight, Congress must ensure more federal prisoners learn employable skills, overcome addiction, and confront the thinking and behavior that first brought them to prison.

The BOP should actively pursue more robust partnerships with nonprofit organizations, including faith-based institutions with a record of providing evidence-based programs. This goal was explicitly highlighted in FSA and reiterated in a November Senate Judiciary Committee hearing by Senators Chuck Grassley, R-Iowa; Joni Ernst, R-Iowa; and Chris Coons, D-Del. Nonprofits, including Prison Fellowship, can provide such needed programming, often without cost to the federal government.

Furthermore, the DOJ needs to address some key questions about PATTERN raised by criminal justice reformers and scholars. Observers express concern that PATTERN's definition of low risk level could be far too narrow. This would make it very difficult for federal prisoners who have participated in meaningful programming and pose little risk to public safety to complete more of their sentence outside of prison. Several researchers also question whether the tool's weight of "dynamic factors" could actually allow a majority of prisoners to reduce their risk level. Additionally, outside stakeholders have asked the DOJ to be attentive to racial disparities within PATTERN.

These issues should encourage DOJ officials to refine the PATTERN system to ensure the equitable treatment of all federal prisoners. However, they must encourage department officials to keep refining the system in order to make that possible.

THE CHURCH MUST ENGAGE

The past few months have demonstrated that the BOP and DOJ are actively pursuing a path toward making more transformative program opportunities available. However, we must remember that the passage of groundbreaking laws is only our "first step" as active citizens. For the FSA to truly change lives, Congress needs to make its stated commitments tangible through investment and oversight. Likewise, the BOP must engage in a process of meaningful institutional change.

Without public advocacy, inertia can allow the broken status quo to remain unfixed. This is why the Church in America cannot be content celebrating our role in the passage of the FIRST STEP Act. We must continue to engage in the details of implementation.

By doing so, Christians can ensure this law makes good on its promise to offer restoration and second chances for our incarcerated brothers and sisters in federal prisons.