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 First Step Act Early Release 

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Michael Santos

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MY EARLY RELEASE UNDER THE FIRST STEP ACT

The journey through the federal criminal justice process has many ups and downs. I recently experienced one of the highest of highs a person in federal custody can enjoy: immediate release!

Like thousands of others, on January 13, 2022, I received my immediate release from the custody of the federal Bureau of Prisons (BOP) to supervised release (federal probation). My release came about four months earlier than was scheduled because the Department of Justice (“DOJ”) recalculated my sentence and applied earned time credits under the First Step Act of 2018

By engaging in certain “productive activities” while serving my sentence at a federal prison camp in 2019 and 2020, I earned “time credits” that I could convert into additional days off my time in custody, at a halfway house, or on probation.

Since the First Step Act passed in 2018, people in federal custody have been trying to understand the meaning of the law and how the BOP would implement it. The way people serving time read it, for every 30 days of engaging in qualified, productive activities, a person could earn up to 15 days to put in a bank of time that they could later cash out. 

However, what the BOP would consider as a productive activity has been shrouded in mystery and debate. Moreover, from the outset, the BOP slow-rolled the law’s implementation, taking a very long time to answer these and other essential questions. 

Still, with the promise of accumulating earned time credits towards a possible early release out there, people like me in federal prisons across the country signed up for courses, jobs, and apprenticeships full bore. 

We kept ourselves busy, seeking every opportunity to demonstrate our desire to return to our communities and become productive members of society again as soon as possible. Participating in programming and productive activities was one decisive way to demonstrate to prison case managers and counselors that we were worthy of early release under the law. 

The message of the First Step Act is precisely what the team at Prison Professors has been teaching people inside the criminal justice system for years. If they want a better outcome, people who work with Prison Professors learn how to use their time in prison productively, create a new record, and continually push towards earning their release. That is the sort of approach that the First Step Act rewards with early release opportunities.

In my case, I completed more than 25 courses while serving time and also completed the Residential Drug Abuse Program (“RDAP”) and other drug education programs available. My federal prison camp required that everyone maintain a job, and while there, I worked in the  Education Department, the Library, and the Recreation Department.

I should note that the benefits of the First Step Act do not apply to every inmate, and there are eligibility criteria. While still in prison, I learned that I was eligible for earned time credits under the First Step Act because I was a nonviolent, first-time offender with the lowest risk of recidivism score, also known as the PATTERN score

Under the First Step Act, some benefits are only available to people with the very lowest PATTERN scores. PATTERN is a scoring mechanism designed to identify people the BOP believes have a very low risk of re-offending.

PATTERN stands for Prisoner Assessment Tool Targeting Estimated Risk and Needs, and the First Step Act requires that the BOP assess every federal inmate under PATTERN. 

PATTERN calculates two separate scores: a person’s risk of reoffending in general and their risk of reoffending with an act of violence. These scores determine whether someone is in a minimum-, low-, medium-, or high-risk category for reoffending.

In my case, even though I was eligible for earned time credits based on my PATTERN score of “minimum,” I went from prison to home confinement in March 2021 without knowing how they would ultimately calculate my time credits or how much time I had earned. 

In other words, the BOP had yet to implement a system for letting people like me know how many days’ worth of “early release” they had  earned through their productive activities in prison. 

When I left prison, I knew that many criminal justice organizations were challenging the BOP’s lack of sustained efforts to properly implement the First Step Act. For one, without an acceptable formula to award people their earned time credits, no one would use them to get released sooner. The BOP was content dragging its feet. 

Nonetheless, while the First Step Act earned time credits were not able to help me get out of prison early, I held on to the hope that at some point, I would be able to apply my accumulated time credits towards an early release from probation or supervised release.

Fast forward to today. While still on home confinement with electronic monitoring, I got the call about my immediate release from custody based on the First Step Act. 

The day started like any other day on federal home confinement. A call came from the control booth at a halfway house in my federal district, which monitors federal home confinement inmates.

A person on federal home confinement under the CARES Act like me typically receives at least one “accountability call” each day, sometimes more. The calls come at random times each day and are designed to confirm that the person is indeed at home. When the call comes, a staff member asks for the person’s registration number or inmate number. Sometimes, they also ask for the name of the person’s case manager. These accountability calls come on top of the fact that the person is likely wearing an ankle monitor, and a monitoring company can tell if they are, in fact, home or not. 

Of course, finishing my prison sentence on home confinement rather than in prison is something to be grateful for in my mind. 

In any event, after a morning accountability call, I was not expecting another call from the halfway house, and getting another call that morning seemed odd. It was the halfway house director calling to tell me that the Attorney General had recalculated my sentence “under the First Step Act.” I froze. Being around people a little beaten down by the system, including myself, I instantly became fearful of negative news. Rather than bad news, however, the news was incredibly fortunate for a change: my release date changed from May 2022 to May 2021, and therefore my ankle monitor would come off immediately, and I would go on supervised release. 

When trying to obtain benefits that the law already provides, people within the federal prison system face many obstacles, especially when it comes to early release

For example, for years, the Second Chance Act has allowed the BOP to provide eligible inmates with up to 12 months of time in a halfway house when they are towards the end of their prison term. The purpose of a year of halfway house time is to help people begin the process of reintegrating into the community, especially people that need more time to get back on their feet after prison. 

My federal prison camp is one of the most notorious for denying 99.9% of people’s requests for more than 6 months halfway house time, let alone 12 months. If anyone in a large prison housing 1000 women on average got 9 months or more of halfway house time, it made headline news that spread like wildfire. That’s how rare it was for anyone to get more than 4 to 6 months, even though Congress had long allowed and encouraged it.

Against that backdrop, imagine my shock at getting the unexpected call about my immediate release. My heart warmed at the thought of others possibly receiving similar calls. 

Anyone who has spent time in custody knows that word of immediate release is every inmate’s dream. When almost anyone gets immediate release granted, word travels quickly. Everyone cheers at the sight of one more person getting another chance outside prison walls.

On the day of my immediate release, I went to the halfway house to return the ankle monitor that had dominated my life for the last 8 months and sign release paperwork. I ran into other people returning their ankle monitors too. I learned that about 30 people from the same halfway house received similar “it’s over” calls. 

All of us were elated but also a bit dismayed. In many cases, our new “BOP release dates” had changed by as much as a year. 

Does that mean that had the BOP implemented the law promptly and in good faith from the outset, many of us would have moved on to supervised release a year ago, and been able to enjoy Christmas with loved ones, attend graduations, or accept new job offers, free from the restrictions of prison or home confinement? Maybe. Maybe not. 

For me, the answer to this question matters, and here is why: 

My new BOP release date indicates I should have been released in early May 2021. At the end of May 2021, my son graduated college. One of my big goals while in prison was to make it out for his graduation. I did not make it.

Moving forward, it’s my hope that the full benefits of the First Step Act begin to flow to more and more people who meet the criteria and do the work the law encourages them to do. When people do what the system asks them to do, they should not have to miss out unnecessarily.  

Signed,

A Friend of Prison Professors

Prison Professors, an Earning Freedom company, works alongside (not in place of) civil and criminal defense counsel to help clients proactively navigate through investigations and prosecutions. Our team also helps clients prepare mitigation and compliance strategies.

If you have any questions or are uncertain about any of the issues discussed in this post, schedule a call with our risk mitigation team to receive additional guidance.

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