The former BOP Director, Hugh Hurwitz offers advice concerning the First Step Act. This prison-reform legislation influenced every person in federal prison. It makes sense to understand how the BOP interprets the FSA. See our follow-up interview with Director Hurwitz on prison designations and other subjects.
BOP Director Advice on First Step Act
Hugh Hurwitz built his career with the Federal Bureau of Prisons. He served in various capacities, and he retired from government service as the director of the nation’s prison system. In our first interview, the former director spoke with us about the Bureau of Prisons implementation of the First Step Act. The bullet points below reveal our discussion topics, with a link to where I offer commentary. The timestamp for the video shows that segment of our discussion.
- How does the BOP train staff members receive on reentry?
- How did the First Step Act change BOP policy?
- What are Custody and Classification / Risk-Assessment tools?
- https://youtu.be/2hSkshHn6Hc?t=1125What should a person know about Static and Dynamic Factors in the Bureau of Prisons?
- How will the BOP expand access to programs for Earned Time Credits?
- How will the Bureau of Prisons leverage technology for Earned Time Credits?
- What factors influence decisions on early release?
- What differentiates compassionate release under the CARES Act and First Step Act?
- How much liberty can a person expect while on home confinement?
- How did the First Step Act improve upon the Second Chance Act?
- What mechanisms exist for people who want to transfer to home confinement from a halfway house?
- What is the Elderly Offender Program in the Bureau of Prisons?
1. How does the BOP train staff members on reentry?
BOP staff members begin their training on reentry at the start of their careers. Their training includes insight into the reality that most people in the federal prison system return to society. It’s in the community’s best interest if people return to society with skills and resources that position them for success as law-abiding, contributing citizens.
Under Charles Samuels, a previous director, the Bureau of Prisons began shifting more emphasis to reentry services. With support from Sally Yates, a former leader in the Department of Justice, Charles Samuels established the reentry division. Before becoming director of the Bureau of Prisons, Hugh Hurwitz led the reentry division.
I began serving my sentence in 1987 and didn’t conclude the sentence until 2013. At the start, I set a goal of working to prepare for success upon release. I wanted to earn academic credentials, develop a more robust support network that could help me upon release, and build a record of community contribution. Back then, regardless of how hard a person worked to reconcile with society, administrators told me throughout my journey that they did not care anything about a person’s life after release. Their emphasis, they said, would be on preserving the institution’s security.
The First Step Act expanded the BOP’s scope. Besides focusing on security, staff members also had to work toward preparing people for success upon release. The First Step Act required the Bureau of Prisons to retool its position on reentry.
Despite changes in the BOP, people going into the system should understand the importance of documenting their efforts to prepare for success upon release. A person with outstanding documentation will have better resources to self-advocate in prison. Self-advocacy can lead to an earlier release date and a more successful transition into society.
2. How did the First Step Act change BOP policy?
The First Step Act brought fundamental changes to the Bureau of Prisons, beginning with how the agency defined success. Historically, administrators emphasized preserving each institution’s security. The First Step Act required the BOP’s more than 35,000 staff members to undergo more training. The new training would place more emphasis on the importance of preparing people for success upon release.
Previously, the BOP used risk-assessment tools such as BRAVO. The BRAVO tool endeavored to measure a person’s likelihood of committing disciplinary infractions while serving the sentence.
The First Step Act tasked the BOP with creating new assessment tools:
- PATTERN risk assessment: administrators could use this tool to assess the likelihood of an individual recidivating, and
- SPARK 13 needs assessment: administrators could determine what the person would need to lower those risk levels
The tools measure many factors, including the person’s criminal history and the seriousness of the offense. Administrators use the risk assessment to score each person upon their entry into the Bureau of Prisons; case managers reassess the people each year. If the person participates in positive programming, the person can influence a better score, showing lower risk levels.
The First Step Act makes it more critical than ever for people in prison to document their personal journey. Although the BOP will record a person’s adjustment, everyone should work hard to memorialize his efforts to prepare for success.
In Earning Freedom: Conquering a 45-Year Prison Term, I show the steps I learned from leaders about documenting a pathway to success upon release. The better a person can show his deliberate adjustment pattern, the stronger he becomes at opening opportunities and self-advocacy.
With the First Step Act, each person should think about creating the tools, tactics, and resources that would persuade decision-makers of the individual’s worthiness as a candidate for leniency.
3. What are Custody and Classification / Risk-Assessment tools?
Long before I began serving my sentence in the Bureau of Prisons, the agency used a tool to assess where the agency should confine a person. The Bureau of Prisons has many security levels. Policymakers recognized that it would not be appropriate to incarcerate a person serving a sentence for a tax offense with a violent, predatory person.
Higher security prisons require more staff to operate and more intense security. They are limited resources, reserved to hold people that threaten public safety. Lower security prisons require fewer staff members to operate, and they confine people that do not have a history suggesting that they need the highest level of security.
The custody and classification system provides an objective scoring system. Theoretically, it measures the level of security that a person requires. The Custody and Classification scoring system counts many factors, most of which would be historical, such as a person’s criminal history records, offense level, and propensity for violence.
Our website offers tools that will help readers understand the custody and classification system. Visit the “Resources” section of our website. The search tool in the sidebar features links to many articles that explain the Bureau of Prisons policy. We encourage readers to invest time to learn about the system so they can architect a successful self-advocacy strategy.
Based on our interview with former Director Hugh Hurwitz, we will create and publish new resources to help people understand the PATTERN risk-assessment tool and the SPARK 13 needs-assessment tool. The person who wants to prepare for the best outcomes should anticipate that obstacles will come. If a person memorializes the journey, the individual will stand a better chance of overcoming those obstacles.
4. What are Static and Dynamic Factors in the Bureau of Prisons?
The Bureau of Prisons measures static and dynamic factors to assess a person’s custody level, eligibility for program participation, and readiness for release. In the past, administrators put all the emphasis on static factors. No one can influence or change static factors. They are objective. For example:
- A person’s age is a static factor.
- A person’s criminal history is a static factor.
- A person’s type of offense is a static factor.
Nothing will change the historical record, regardless of how hard a person works. Those static factors will influence how administrators in the Bureau of Prisons assess a person.
The new risk assessments allow administrators to weigh dynamic factors. With a good plan, a person can influence dynamic factors. Administrators recognize that if a person participates in programs, the person may build skills that make him more likely to succeed upon release. By understanding how administrators use the risk assessments, a prudent person will take proactive measurements to improve his score. A person can improve the risk-assessment score by:
- Avoiding disciplinary infractions,
- Completing educational programs,
- Completing vocational-training programs.
In my experience, a person should anticipate obstacles. Some staff members may resist a person’s efforts to prepare for success upon release. As Director Hurwitz said, the BOP employs more than 35,000 people. Many staff members have difficulty embracing the changes that came with the First Step Act. Some people cling to the old BOP mantra, “You’ve got nothin’ comin’.”
It’s up to each person to build a record showing why he or she is a worthy candidate for relief, or favorable consideration when things are not going right. In Earning Freedom, I show the obstacles I faced, and the way that the record I built persuaded some staff members to intervene and advocate on my behalf. We encourage members of our community to build a record that will convert stakeholders into advocates
Again, we encourage people to position themselves for success. They must expect obstacles and succeed anyway. To self-advocate effectively, a person must prepare. To overcome the barriers, learn how to document the journey. A person should build a record to show that he has:
- Defined success,
- Developed a plan that will lead to success,
- Put priorities in place,
- Created tools, tactics, and resources,
- Executed the plan, and
- Shown personal accountability.
Memorialize the journey well to overcome obstacles that will likely surface at various stages of the journey.
5. How will the BOP expand access to programs for Earned Time Credits?
The BOP will expand access to Earned Time Credits by using technology to distribute more programs and inviting contractors to create programs that prepare people for law-abiding, contributing lives upon release. When Congress passed the First Step Act, BOP administrators had to begin documenting the programs that would lead to Earned Time Credits. That major shift required retraining. Director Hurwitz told us that administrators created a catalog of all programs that would qualify for Earned Time Credits.
The Bureau of Prisons retained a subject-matter expert to assess potential courses. The expert would determine whether the course met evidenced-based criteria or whether the course would qualify as a productive activity.
An evidence-based course takes longer to develop. Evaluators need to determine whether the course lowers recidivism levels. To get such a measurement, a person must complete the course successfully, finish the sentence, and refrain from reverting to crime. Then, the evaluator must compare that person with someone who did not go through the course. If the evaluator can show that the course leads to lower recidivism rates, it may qualify as an evidence-based course.
A Productive Activity (PA), on the other hand, must show that it promises to reduce recidivism, and a team of subject-matter experts agrees that the course may lead to lower recidivism rates.
The Bureau of Prisons has developed a process to invite more course contractors to create courses that can lead to inclusion in the catalog. Those courses will open opportunities for people in prison to build a bank of Earned Time Credits.
6. How will the Bureau of Prisons leverage technology for Earned Time Credits?
Former Director Hugh Hurwitz told us that the Bureau of Prisons recently signed a contract with a vendor to provide tablet-based computers to people in the Bureau of Prisons. In June of 2022, the project is in development. The BOP will strive to give every person in federal prison a tablet-based, iPad-like device. Those tablet-based computers will include courses. People can access lessons, irrespective of whether they can attend class. They can learn despite being locked in segregated housing units without access to teachers. The tablets will allow people to work toward preparing for success. Their progress may result in the accumulation of more Earned Time Credits.
This commitment to technology represents a massive shift in the Bureau of Prisons from the time that I served my sentence. The more we understand the Bureau of Prisons, the more we can be deliberate in architecting an adjustment strategy that will lead to success upon release.
The First Step Act changed many factors in the Bureau of Prisons. A person going inside should think about how he can use this information to build a stronger case for self-advocacy. To get many examples, I encourage people to read about the different strategies I used to climb through 9,500 days in prison. Leaders taught me, and through Prison Professors, our team strives to teach others. It’s the way we can be the change we want to see in the world. The strategies we teach worked for the members of our team, they worked for me, and we believe they can work for others. Specifically:
- Define success by identifying values,
- Set goals that align with the definition of success,
- Show a 100% commitment, reflecting the right attitude,
- Visualize the best possible outcome, with aspirations of the life you will lead upon release.
- If you know what success looks like, act in ways that show you’re taking the incremental steps necessary.
- Create your accountability tools that reveal your commitment to success.
- Stay aware of the opportunities around you, and make others aware of your commitment to succeed.
- Build a record that will show your authenticity, which will convert adversaries into advocates for. you.
- Celebrate every incremental achievement, with confidence that little wins lead to new opportunities.
- Show your appreciation for the blessings that have come your way, being the change you want to see.
We offer fully developed modules on each of those lessons in video, audio, and text in various areas of our web properties. And we encourage anyone going into the system to understand how they can use those tools to help themselves.
7. What factors influence decisions on compassionate release?
Many factors influence a person’s eligibility for compassionate release. For this reason, I encourage people to listen to Director Hurwitz’s response to my questions and make their own assessments.
To provide more context, I write commentary below that goes beyond my conversation with the Director; I rely upon my experience of serving 26 years and interviewing thousands of people.
Many people confuse “compassionate release” with “early release” and other mechanisms that could lead to a transition from prison to home confinement, or even to an earlier release date. The term “compassionate release” existed when I started my sentence, back in 1987, long before the First Step Act. I remember the provision well. As a young person with a lengthy sentence to serve, I read the appropriate sections of the Code of Federal Regulations (CFR) and the statutes that influenced BOP decisions.
Title 18 of the USC Code, Section 4205(g) holds as follows:
A sentencing court, on motion of the Bureau of Prisons, may make an inmate with a minimum term sentence immediately eligible for parole by reducing the minimum term of the sentence to time served.United States Code, Title 18, Section 4205(g)
That law applied to me because it existed when my judge imposed the sentence. Since then, the law changed. When the new law took effect—for offenses after November 1, 1987—the US Parole Board did not factor into the equation of compassionate release. Since there would not be a parole board, Congress revised the above law:
A sentencing court, on motion of the Director of the Bureau of Prisons, may reduce the term of imprisonment of an inmate sentenced under the Comprehensive Crime Control Act of 1984.
The Bureau uses 18 USC section 4205(g) and 18 USC 3582(c)(1)(A) in particularly extraordinary or compelling circumstances which could not reasonably have been foreseen by the court at the time of sentencing.Bureau of Prisons Program Statement Number 5050.50, January 17, 2019
An important takeaway from this change is that prior to the First Step Act, the Director of the BOP had to file a motion with a sentencing court for a person to receive compassionate release. The First Step Act removed that barrier of needing a motion from the Director of the Bureau of Prisons.
With the First Step Act, to petition for compassionate release, a person must make the first request with the warden. The person can initiate the administrative remedy process, which opens an opportunity for the warden to respond to the request. Three possibilities may follow:
- Possibility 1: The warden agrees to support the request for compassionate release.
- Possibility 2: The warden does not answer the request for compassionate release within 30 days.
- Possibility 3: The warden responds by denying the request for compassionate release.
If the warden does not respond within 30 days, the First Step Act authorizes a person to file a motion with the sentencing court. The motion will give jurisdiction to the judge, who may or may not grant compassionate release, pursuant to the First Step Act.
If the warden responds with a denial to the request for compassionate release, the person may need to advance the administrative remedy process. The next step would be to file an administrative remedy request with the region, on a form BP-10. Then, the person would file an administrative remedy request with Washington DC, with a form BP-11. The person should include supporting documentation to show why he or she is a worthy candidate for compassionate release.
If the Central Office responds unfavorably to the request or doesn’t respond at all within 30 days, then the person will have exhausted the administrative remedy process. At that stage, the person may file a motion for compassionate release with the sentencing court. The judge may or may not grant the motion for compassionate release.
Thanks to the First Step Act, BOP factors that would influence a decision for compassionate release have become less relevant. It’s much more relevant, however, for a person to architect a strategy that would advance his candidacy for being “extraordinary and compelling.” Although an extraordinary and compelling post-conviction adjustment is not sufficient to warrant an early release, judges will consider a prison adjustment together with other factors. A person going into the system should understand everything about the First Step Act, and then work to build a record that may warrant reconsideration from the sentencing judge in the months, years, and decades ahead.
As a final thought, it’s also crucial to differentiate the term “compassionate release” and “early release.” With the CARES Act, a person may transition to home confinement to serve a significant portion of the sentence. With compassionate release under the First Step Act, a person may be released from the BOP. With the CARES Act, the BOP may authorize a person to serve a portion of the sentence on home confinement—but the person will remain beholden to the rules of the BOP while on home confinement.
Again, I encourage the Prison Professors audience to listen to the Director’s explanation and to research the First Step Act on their own. Self-advocacy begins with a commitment to understanding.
8. What differentiates compassionate release under the CARES Act and First Step Act?
The CARES Act differs from the First Step Act in many ways. Specifically, the CARES Act responded to the global COVID pandemic. By citing the CARES Act, the Attorney General authorized the Bureau of Prisons to transfer more people from federal prison to home confinement. The people would still be in prison, but they would serve their sentence on home confinement rather than in federal prison.
Once we move beyond the COVID era, the president may stop the CARES Act. Once the CARES Act stops, the Bureau of Prisons may rescind a policy that it has been using to transfer people from prison to home confinement.
The First Step Act, in contrast, is a law. Both houses of Congress voted on the law, and a president signed the law. President Biden has expressed support for the law and for its policies. The First Step Act has broad bi-partisan support, and it would take an act of Congress to change the law.
Both the CARES Act and the First Step Act benefit people who can advocate for themselves successfully.
In response to the COVID pandemic, the BOP issued a series of memorandums that staff members would rely upon to determine whether a person could transfer to home confinement. If a person had a sentence of 19 months or longer, and the person served 50% of the sentence, and the person met specific criteria, staff members may recommend the person for a transition to home confinement. If the person had a sentence of 18 months or less, and the person served 25% of the sentence, staff members in the BOP may recommend the person for a transition to home confinement.
These recommendations were not automatic. In response to the CARES Act, the Bureau of Prisons transferred thousands of people from prison to home confinement. Thousands of other people filed administrative remedy requests with the Bureau of Prisons, seeking to transition to home confinement.
If the warden denied the request or did not respond to the request, those people had an option to escalate their request. After they exhausted their administrative remedy, the First Step Act authorized those people to file a motion with the sentencing court. The sentencing court could decide whether relief was warranted.
Neither the First Step Act, nor the CARES Act represent a get-out-of-jail-free card.
Each person had to advocate for himself. When it came to requests for compassionate release (different from CARES Act) under the First Step Act, the former director Hurwitz told us about the challenges. Of all the people who succeeded with a compassionate release request, the BOP only supported about four percent of the requests.
The remaining 96 percent took the next step after they exhausted their administrative remedy request at the BOP level; they submitted motions to the sentencing court and persuaded a judge to grant their motion for compassionate release. The Bureau of Prisons could have authorized compassionate release, but for whatever reason, the agency declined to support the request that a judge later granted.
People that could advocate for themselves successfully went through the appropriate process, at the appropriate time, and built a record that led to compassionate release. But there was never a certainty that they would succeed. In fact, to succeed, before granting a request for compassionate release, stakeholders will want to see an extraordinary and compelling case, that could not have been anticipated at the time of sentencing.
Again, each person going into the system should learn about the First Step Act and learn how to build a record that would advance his candidacy for the best possible outcome. Although an attorney may help, both the CARES Act and the First Step Act require each person to become a master of self-advocacy.
9. How much liberty can a person expect while on home confinement?
A person that transfers from prison to home confinement will have a much higher level of liberty. While in prison or halfway house, administrators will dictate where a person sleeps, where or when a person eats, and much more. If a person transfers to home confinement, the person will be able to live in his residence with his family. Yet the person must still abide by the rules that govern all people in the Bureau of Prisons.
Rules of home confinement may require a person to wear an electronic monitoring device. They will require the person to abide by a strict schedule that administrators in a halfway house oversee. And they will require the person to lead a productive lifestyle, either working or striving to advance academic credentials or vocational skills. A person may attend worship services and medical appointments.
The level of liberty on home confinement exceeds that in prison. For this reason, every person going into prison should think about steps he can take to advance his candidacy for home confinement or release at the soonest possible time.
10. How did the First Step Act improve upon the Second Chance Act?
President George Bush signed the Second Chance Act into law back in 2008. Back then, I was in my 21st year of imprisonment. Among other factors, the Second Chance Act expanded access to community confinement, also known as Residential Reentry Centers. It authorized the Bureau of Prisons to transfer people to a halfway house for the final 12 months of the sentence.
Administrators in the halfway house could approve a person to spend the last six months—but no more than 10% of the sentence—in home confinement.
The First Step Act brought many improvements to the Second Chance Act law. Besides introducing the concept of Earned Time, the First Step Act authorized people to spend more time on home confinement.
With the First Step Act, a person could go to home confinement when the BOP or the sentencing judge decided to send the person to home confinement. The person would need to go through the appropriate process. First, the person must request an early release through home confinement from the warden. Then, if the warden did not give a favorable decision, or 30 days passed, the person could exhaust administrative remedies and file a motion with the district court. If the judge agreed that circumstances changed in an extraordinary-and-compelling way, the judge could authorize the person to transition to home confinement or authorize compassionate release.
The Second Chance Act and the First Step Act apply to people serving time for federal offenses—not state offenses. Further, each person in federal prison that wants to qualify for the maximum benefit should work to build an extraordinary-and-compelling record that would support the request.
It’s difficult to persuade judges or the Bureau of Prisons to grant mercy. For that reason, a person must plan and build a persuasive case.
11. What mechanisms exist for people who want to transfer to home confinement from a halfway house?
Director Hurwitz told us that mechanisms exist for administrators in the halfway house to transfer people to home confinement. The case manager should review the individual’s record. If the person meets the criteria, the case manager should recommend the person for home confinement. Some questions the case manager may consider:
- Does the person have a stable residence?
- Does the person have acceptable employment?
- Does the person pose a threat to the community?
If a person qualifies, the case manager should transfer the person to home confinement. Director Hurwitz told us that the halfway house does not receive as much payment if the person transfers to home confinement, but compensation should not influence the case manager’s decision.
If the person qualifies for home confinement but the case manager fails to make the recommendation, Director Hurwitz suggested that the person should initiate an administrative remedy process. He said that people in the Bureau of Prisons would then review the decision.
12. What is the Elderly Offender Program in the Bureau of Prisons?
Director Hurwitz told us that the Bureau of Prisons’ Elderly Offender Program has existed for many years. With the First Step Act, Congress mandated that the Bureau of Prisons reinstate its use. With changes in the First Step Act, a person can qualify for the Elderly Offender Program as follows:
- A person must be at least 60 years old.
- A person must have served at least two-thirds of the sentence.
- A person must not have a history of violence.
- A person must have a release date (not a life sentence).
- Administrators must assess that the person does not threaten the community.
The Elderly Offender Program allows this person to serve the final one-third of the sentence on home confinement. Consider the following possibility:
- A 61-year-old man has a 60-month sentence.
- The person meets all the qualifications.
- The person received good time for the time he served.
- The good-time credits reduced the term to 51 months.
- The two-thirds date would be 32 months.
Although only approximate, the person could—theoretically—transition to home confinement at 32 months. If he qualified for other benefits, such as RDAP, the person might transition to home confinement sooner.
Each person should invest time in learning about the First Step Act. The more a person knows, the more competent a person becomes in self-advocacy.