The Struggles of Implementing the First Step Act (FSA)
Published on December 27, 2024 by InmateAid
Table of Contents
Introduction
The First Step Act (FSA), signed into law by President Donald Trump in December 2018, was a groundbreaking piece of legislation aimed at reducing recidivism and making the criminal justice system fairer. The law allows eligible federal prisoners to earn time credits through participation in recidivism-reduction programs and activities, with the ultimate goal of reducing incarceration and promoting community safety. However, nearly five years after its enactment, the Federal Bureau of Prisons (BOP) continues to face significant challenges in its implementation of the law, particularly the Earned Time Credit (ETC) provisions.
Initial Concerns and Challenges
Initial Concerns Raised by Congress
In November 2022, Senators Dick Durbin and Chuck Grassley wrote to BOP Director Colette Peters, expressing deep concerns about the agency’s failure to adequately implement the FSA. They noted that despite the law being in effect for almost four years, the BOP had yet to develop consistent and fair policies for awarding Earned Time Credits (ETCs). The senators emphasized that these delays undermined the FSA’s purpose of reducing recidivism and improving public safety.
Legal Challenges and Lawsuits
The BOP’s struggles have led to significant legal challenges, including a recent class action lawsuit filed by the American Civil Liberties Union (ACLU) on behalf of thousands of inmates. The lawsuit alleges that the BOP unlawfully treats FSA credits as discretionary, directly contradicting the law’s plain language. Individual prisoners have also successfully sued the BOP, with courts awarding credits in disputed cases. However, the agency has not updated its policies to reflect these rulings, nor has it appealed them, creating a lack of clarity for staff and inmates.
Problems with Initial Implementation
When the BOP issued the Final Rule for the FSA in January 2022, it introduced a method for calculating and awarding credits that left many prisoners without any credits, despite their participation in approved programs. Additionally, a lack of communication about the requirement to complete a “needs” survey caused further confusion, delaying the accrual of credits for thousands of inmates. While the BOP eventually retroactively awarded these credits, the delay caused significant frustration and hardship.
Challenges with Prerelease Custody
The FSA allows inmates with longer sentences to earn credits toward prerelease custody, such as placement in halfway houses or home confinement. This aspect of the law has been particularly problematic, as the BOP has interpreted it as discretionary rather than mandatory. This interpretation has prevented many eligible prisoners from transitioning to community custody, prolonging their incarceration and sparking legal action.
Capacity Constraints in Halfway Houses
A key issue in implementing the FSA is the limited capacity of halfway houses. Despite the law’s intent to increase community custody placements, the number of available beds in halfway houses has remained unchanged since 2018. This shortfall has hindered the BOP’s ability to move eligible inmates out of prison facilities, further complicating the FSA’s implementation.
Inmate Impact and Progress
Inmate Unrest and Protests
Frustration over the BOP’s handling of the FSA has led to unrest within federal prisons. In July 2023, the BOP released a video promoting its commitment to community placement under the FSA, along with “stacking” credits from the Second Chance Act. However, these promises have largely gone unfulfilled, leading to protests such as a food strike at FPC Montgomery. Reports from facilities like FCI Forrest City indicate that inmates continue to face miscalculations and limited access to programming, further exacerbating tensions.
Impact on Inmates
The BOP’s failure to fully implement the FSA has had a profound impact on inmates. Many have served longer sentences than necessary due to delayed or miscalculated credits, while others believe they are being retaliated against for raising concerns. The administrative remedy process, meant to resolve disputes, often takes months, leaving inmates without timely recourse.
Signs of Progress
Despite these challenges, there are indications that the FSA is having a positive effect. The BOP has reported population decreases in minimum-security camps, leading to the closure of six federal prison camps as part of efforts to reduce incarceration costs. These developments suggest that the FSA is beginning to achieve its goal of decreasing prison populations.
FAQs About the First Step Act (FSA) and Its Implementation by the Bureau of Prisons (BOP)
1. What is the First Step Act (FSA)?
The First Step Act (FSA) is a landmark criminal justice reform law signed into effect in December 2018 by then-President Donald Trump. It aims to promote public safety, reduce recidivism, and make the justice system fairer by allowing eligible federal prisoners to earn time credits through recidivism-reduction programs and activities.
2. Why is the First Step Act significant?
The FSA allows inmates to reduce their sentences by earning time credits and facilitates prerelease custody, such as placement in halfway houses or home confinement. These measures aim to help inmates reintegrate into their communities and reduce the burden on federal prisons.
3. What concerns have been raised about the FSA’s implementation?
Senators Dick Durbin and Chuck Grassley expressed concerns about the BOP's inadequate implementation of the FSA’s Earned Time Credit (ETC) provisions. Despite the law being in place for over five years, delays and inconsistencies in awarding credits have hindered its intended impact.
4. What are the specific issues with Earned Time Credits?
The BOP initially struggled with the ETC calculation process, leaving many inmates without the credits they had earned. Problems included a lack of clarity about required “needs” surveys, retroactive application of credits, and delays in awarding credits. These issues have left many inmates serving more time than necessary.
5. How has the BOP’s interpretation of the FSA created problems?
The BOP has treated some FSA provisions, particularly those related to prerelease custody, as discretionary rather than mandatory. This interpretation has led to lawsuits, including a class action filed by the ACLU, arguing that the BOP's practices violate the law and the rights of affected inmates.
6. What impact has this had on inmates?
Thousands of inmates who should qualify for community custody remain incarcerated due to miscalculations, lack of program access, or administrative delays. Many have reported retaliatory actions for raising concerns, while others have faced extended confinement due to inadequate capacity in halfway houses.
7. What steps has the BOP taken to address these issues?
The BOP has taken some measures, such as retroactively awarding credits and improving communication about requirements. It has also announced the closure of six federal prison camps due to reduced populations, reflecting the FSA’s impact in decreasing inmate numbers.
8. Why are halfway houses and community placement a challenge?
The BOP cites limited capacity in halfway houses as a key obstacle. Despite the FSA's goal of increasing community custody, the availability of bed space in halfway houses has not significantly expanded since the law was enacted in 2018.
9. What is the outlook for the FSA’s full implementation?
While the BOP has made some progress, significant challenges remain. The ACLU lawsuit and continued Congressional pressure highlight the urgency of addressing the remaining barriers to FSA implementation. Ensuring sufficient community custody placements and resolving administrative delays are critical to realizing the law’s full potential.
Conclusion
The First Step Act represents a critical step toward criminal justice reform, but its success hinges on effective implementation. The BOP must address persistent challenges, including proper calculation and application of earned time credits, expanding halfway house capacity, and improving transparency. With growing legal and public scrutiny, the path forward requires decisive action to ensure the FSA fulfills its promise of reducing recidivism and helping inmates transition back into their communities.