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 What is the First Step Act? 

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Michael Santos

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On December 21, 2018, a monumental step was taken to end the systemic problem of over-incarceration in the United States federal prison system. The video, “What is the First Step Act?” provides insight from the team of Michael Santos and Larry Hartman of Prison Professors on the changes instituted by the First Step Act and the benefits gained by both current and future federal prisoners under the terms of the First Step Act.

The revolutionary reform instituted by President Donald Trump upon signing into law the First Step Act altered the nature of incarceration for inmates in the federal prison system. The First Step Act fundamentally changed the way the Federal Bureau of Prisons calculates the duration of a prison term for federal inmates. The law reforms the way the Bureau of Prisons calculated good behavior time for all inmates. More significantly the First Step Act required a shift in the attitude and training of the administrative staff in the Bureau of Prisons. The paradigm shift in thinking also requires the Bureau of Prisons to provide a direct means for a motivated federal prisoner to actively decrease the term of the sentence issued by the Federal Courts. In the Prison Professors video Larry Hartman, a Columbia Law school graduate and former prisoner in federal prisons discusses the application of the law and the implication the law will have on current federal prisoners.

As noted by Mr. Hartman the initial application of the First Step Act landed with a tremendous thud. The institutional and bureaucratic delay by the Bureau of Prisons in tandem with the outbreak of COVID -19 hampered the full implementation of the radical changes introduced by the First Step Act. However, as early as 2019 the Bureau of Prisons had begun to recalculate a prisoner’s good time based on the total term of the inmate’s sentence. 

Prior to the passage of the First Step Act, the administrators of the Bureau of Prisons had employed a technical trick emblematic of the Bureau’s attitude to ensure an inmate served the most time. Good time was calculated in a backward manner using the number of days a prisoner would serve if good time was earned. In essence, the maximum amount of good time an inmate could earn was twelve and three-quarters percent of their sentence. The resulting loss was seven days for each year of good time earned. The First Step Act restored the good time percentage to the fifteen percent as intended by Congress. The restoration of fifteen percent added seven days of eligible good time per year. The recalculation allowed a prisoner to receive a maximum of fifty-four days of good time per year. Importantly the restoration signified a seismic shift in attitude. The Bureau of Prisons would work together with properly motivated prisoners to facilitate earlier release dates.

As the COVID pandemic reaches a conclusion, the Bureau of Prisons is now ready to implement the extraordinary changes instigated by the First Step Act. As Michael Santos points out, before the First Step Act’s passage, the attitude of prison administrators was to deter, interfere with and deny any attempts by an inmate in the federal system to shorten a sentence. The training of prison staff focused on and reinforced a Bureau of Prison policy eliminating a prisoner access to any dynamic factors which might result in a prisoner transition back into society in a quicker time frame than their given sentences.

With the passage and implementation of the First Step Act, this policy of denial obfuscation toward prisoners has changed. Prisoners can have an active role in shortening the actual time they spend incarcerated. The new environment of federal incarceration makes it incumbent on a prisoner to take immediate action. An inmate should document and exercise a specific plan demonstrating their intent to effectuate and execute a positive design for reentering society. 

The First Step Act provides eligible inmates can gain Earned Time credits toward prerelease custody or early transfer to supervised release by successfully completing approved Evidence-Based Recidivism Reduction Programs or Productive Activities assigned to each inmate based on the inmate’s recidivism risk assessment. The extent an inmate can gain ‘earned time’ begins with a Bureau of Prison recidivism risk analysis called PATTERN. PATTERN stands for Prisoner Assessment Tool Targeting Estimated Risk and Needs. The PATTERN assessment takes into consideration fifteen factors in deciding an inmate’s risk for general recidivism and the risk of a violent act resulting in recidivism. The fifteen factors vary and include an inmate’s age, education, criminal history, the history of violence in the inmate’s past, the disciplinary history of the inmate while incarcerated, and the degree of inmate compliance with prison regulations and programs. All prisoners who do not have a disqualifying factor, i.e., use of gun, violence, terrorism, or sexual offense can receive up to ten days of earned time for every thirty days served. Prisoners who score in the Minimum or Low range for both risk factors can earn an added five days of earned time. The additional five days allow the Minimum and Low rated inmates to accumulate fifteen days of earned time for every thirty days served.

Surprisingly, the Bureau of Prisons has been very generous in the application of earned time credits for activities engaged in by inmates during the period between the passage of the First Step Act and the Bureaus’ official implantation measures of the law. Current inmates who were engaged in actions and endeavors similar to those sanctioned by the First Step Act can qualify for earned time credits. The post-facto inclusion of earned time credits emphasizes and reinforces the new attitude and reality of the United States Department of Justice and the Bureaus of Prisons. A new priority exists to acknowledge and reward inmates for efforts to prepare for reentry into society. For those individuals just starting upon the challenges of entering the American penal system the recognition by the Bureau of Prison of positive past action is a reminder to start preparing for your return to society before you even begin your term of incarceration. 

For either the current prisoner or the individual preparing to enter the penal system it is imperative to familiarize yourself with the First Step Act. Now is the time to act. Now is the time to prepare a plan. The individual who prepares will be rewarded by going home sooner.

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