It has been over eight months since the First Step Act of 2018 was enacted. I have consistently written about the First Step Act since it was adopted. But many people still have questions, and I have been repeatedly asked to provide a First Step Act summary. Fortunately, the Bureau of Prisons (“BOP”) finally released a series of Frequently Asked Questions concerning the First Step Act. I have reproduced the BOP’s First Step Act summary in its entirety below. The BOP’s First Step Act summary is important because it gives the agency’s interpretation of its obligations under the First Step Act. I hope you find this information helpful.
First Step Act Summary
What is the First Step Act?
The First Step Act (FSA) is a law, signed on December 21, 2018, with provisions that impact Federal Bureau of Prisons (BOP) inmates and their families. The law:
- gives judges greater latitude in imposing mandatory minimum sentences,
- allows inmates to earn increased good conduct time,
- increases BOP recidivism reduction programming to address inmate’s needs,
- offers earned time credits for completion of recidivism reduction programs and/or productive activities, and
- expands opportunities for inmate placement into residential reentry centers or home confinement.
Do military or state offenders benefit from any of the provisions of the FSA?
The Risk and Needs Assessment system will be used to assign all inmates to a recidivism risk category and their needs will be assessed, however, military code and state offenders will not be eligible to earn time credits as the law applies to U.S. (federal) code offenders only. Additionally, the Second Chance Act Home Confinement Pilot Program and the changes to 18 U.S.C. § 3582 related to the compassionate release program only apply to U.S. (federal) code offenders.
However, the BOP will consider military or state offenders for pre-release custody in accordance with existing BOP release preparation policies.
General BOP policies which address management of the inmate population, such as prohibitions against restraining pregnant offenders, the provision of sanitary products to female offenders, providing assistance for release preparation in obtaining identification, and increased privileges for inmate participation in programs and productive activities will be applied to all persons in BOP custody, including military and state offenders.
How did compassionate release change under the FSA?
Under the FSA, an inmate may now file a motion for a Reduction in Sentence (RIS) also known as compassionate release directly with the court 30 days after making a request to the BOP or after exhausting their administrative remedies.
What are the options for a terminally ill offender?
A terminally ill offender may apply for compassionate release. Additionally, an eligible offender may apply to the Second Chance Home Confinement Pilot program to be placed on home detention until the expiration of their prison term.
How can an inmate apply for compassionate release?
Inmates who meet the eligibility criteria may apply for compassionate release consideration by making a request to their Unit Team. The request will be reviewed by the Warden and, ultimately, the BOP Director will determine whether approval of the request is appropriate.
Additionally, under the FSA, an inmate may now file a motion for compassionate release directly with the sentencing court 30 days after making a request to the BOP or after exhausting their administrative remedies.
How is BOP making sure all inmates are within 500 miles from home?
The FSA requires the BOP to designate an inmate to a facility as close as practicable to the prisoner’s primary residence and, to the extent practicable, in a facility within 500 driving miles of that residence.
The BOP’s determination is based on variety of factors including: bed availability, the inmate’s security designation, the inmate’s programmatic needs, the inmate’s mental and medical health needs, any request made by the inmate related to faith-based needs, recommendations of the sentencing court, and other security concerns of the BOP.
The BOP will consider inmates for transfer even if they are already within 500 driving miles of their release residence. It is important to note the BOP’s designation decisions are not reviewable. See 18 USC § 3621(b).
Can inmate families make requests to have an inmate moved closer to their primary release residence?
Requests for transfer must be initiated by an inmate. The BOP is required by the FSA to consider the inmate’s preference for staying at his or her current facility.
How can an inmate obtain early release or additional community custody time (home detention or halfway house) under the FSA?
- An inmate may file a motion with the court and receive a reduced sentence under the Fair Sentencing Act provisions included in the FSA.
- An inmate may earn time credits for completion of Evidence-Based Recidivism Reducing Programs and/or Productive Activities if they were not convicted of a non-qualifying offense.
- An inmate may be approved for a compassionate release, also known as a Reduction in Sentence (RIS), based on extraordinary or compelling circumstances such as a diagnosis of a terminal illness, debilitation, or other criteria.
- An inmate may request participation in the Elderly Offender Pilot based upon their age and length of term served.
Is Good Conduct Time (GCT) used to calculate eligibility for the Elderly Offender (home confinement) Pilot program?
An inmate is considered eligible for the elderly offender/home confinement program if he/she has served 2/3 of “the term of imprisonment to which the offender was sentenced.” This is calculation does not include the application of Good Conduct Time.
How do I apply for an early release under the Fair Sentencing Act provisions of the FSA?
The Fair Sentencing Act provisions of the FSA authorize the defendant, the BOP Director, the prosecution, or the sentencing court to move to reduce an inmate’s sentence if the offender’s offense is covered under the Fair Sentencing Act of 2010. Defendants are not eligible if they previously had a sentence imposed or reduced under the Fair Sentencing Act of 2010 or had a prior motion denied on the merits under the provisions.
Inmates covered by the Fair Sentencing Act include those convicted under:
- 21 U.S.C. § 841(b)(1)(A),
- 21 U.S.C. § 841(b)(1)(B),
- 21 U.S.C. § 960(b)(1), and
- 21 U.S.C. § 960(b)(2).
To apply for an early release under the Fair Sentencing Act, an inmate should file a motion with the sentencing court.
Is the Fair Sentencing Act retroactive?
Yes, the FSA made the Fair Sentencing Act of 2010 retroactive, which means that inmates whose offense was committed prior to August 3, 2010 may be eligible for a sentence reduction as if the Fair Sentencing Act was in effect at the time they committed their offense.
How does the FSA expand inmate employment through FPI?
The FSA authorizes FPI (or trade name UNICOR) to sell its products to four new markets:
- Public entities for use in penal or correctional institutions;
- Public entities for use in disaster relief or emergency response;
- The District of Columbia government; and,
- For products other than office furniture, to tax-exempt non-profit organizations (501(c)(3), (c)(4), or (d) organizations.
These new authorities will help UNICOR increase inmate employment skill-building opportunities.
Will BOP increase the number of jobs available through FPI/UNICOR?
The expanded authorities under the FSA are expected to assist UNICOR to increase inmate employment.
How did the FSA change the calculation of good conduct time?
Prior to the FSA, qualifying inmates earned up to 54 days of good conduct time for each year served and, in accordance with 18 USC 3624(b), the BOP pro-rated the amount of good conduct time earned for the final year of service of sentence.
Under the amendments made by the FSA, qualifying inmates will be eligible to earn up to 54 days of good conduct time for each year of sentence imposed by the court.
Will an inmate still earn good conduct time if they are not eligible for time credits?
Yes, all inmates convicted of a federal offense committed after November 1, 1987 are eligible to earn up to 54 days of good conduct time.
When are the good conduct time changes effective?
The amendments made to good conduct time took effect on July 19, 2019 – the date the Department of Justice published the risk and needs assessment system.
Are the changes the FSA makes to the calculation of good conduct time retroactive?
Yes, the changes to the calculation of good conduct time are retroactive, which means they apply to inmates who committed their crime prior to the enactment of the FSA on December 21, 2018.
However, only inmates convicted of a federal offense committed after November 1, 1987 and inmates convicted of DC Code felony offenses committed on or after August 5, 2000 are eligible to earn up to 54 days of good conduct time.
Are there BOP inmates who are ineligible to benefit from the good conduct time changes under the FSA?
Yes, not all BOP inmates are eligible for the changes in how good conduct time is calculated.
Only inmates convicted of a federal offense committed after November 1, 1987 and inmates convicted of DC Code felony offenses committed on or after August 5, 2000 are eligible to earn up to 54 days of good conduct time.
Note: pursuant to DC Code § 24-403.01, inmates convicted of DC Code felony offenses committed on or after August 5, 2000 have good conduct time calculated in the same manner as federal inmates.
Are there statutory limits on home confinement?
Yes, generally inmates who are ineligible to earn qualifying time credits may only be placed into home confinement for the shorter of 10 percent of the term of imprisonment or six months.
Inmates participating in the Second Chance Act Home Confinement Pilot program may only be placed on home confinement if they have served two-thirds of their sentence.
What is BOP doing to ensure inmates receive identification before they release from prison?
BOP policy already directs staff to assist inmates in obtaining identification prior to release. Specifically, inmates are provided reasonable assistance in obtaining a social security card, a driver’s license or other official photo identification, and a birth certificate.
What criteria are currently used to screen inmates for inclusion in the MAT program?
Inmates are screened for the MAT Program if they are within six months of transfer to an RRC and if they meet one or more of the following criteria:
- Diagnosis of Opioid Use Disorder (ICD9 or DSM5),
- History of opioid use noted on the Mental Health Intake,
- Positive urinalysis for opioids,
What does a Naltrexone injection do to the patient?
A Naltrexone injection is an extended release injection that blocks opioid receptors in the brain, interfering with the pleasurable feelings associated with taking opioids. It can significantly enhance the ability of individuals to resist opioid-seeking behaviors.
Does the RRC MST naltrexone program require counseling as well as medication administration?
Yes, the RRC MAT Naltrexone Program requires ongoing counseling for the duration of treatment. Counseling and medication administration are integral parts any individualized treatment plan.
Does the FSA change RDAP in any way?
The BOP’s RDAP was not changed by the FSA.
Can an inmate benefit from both the early release due to RDAP participation under 3621(e) and the changes to good conduct time?
Yes, an inmate’s projected release date will first be adjusted due to application of the Good Conduct Time changes. The BOP will review inmates participating in RDAP to determine the amount of sentence reduction that would be appropriate.
What is the risk and needs assessment system intended to do?
The risk and needs assessment system will be used to determine the risk and needs of inmates in BOP custody. Specifically, the system will be used to determine the recidivism risk of each inmate and assign a recidivism risk score of minimum, low, medium, or high risk. The system will also be used assess each inmate and determine, to the extent practicable, the inmate’s risk of violent or serious misconduct.
BOP staff will also use the system to determine the type and amount of evidence-based recidivism reduction programming that is appropriate for each inmate and assign recommended programming based on the inmate’s specific criminogenic needs.
What is the Second Chance Act Home Confinement Pilot program?
An inmate may apply for home confinement under the Second Chance Act Home Confinement Pilot program provisions contained in the FSA if they meet the eligibility criteria as an elderly offender or as a terminally ill offender. An inmate may initiate a request under either provision with their Unit Team.
What is the eligibility criteria for participation under the Second Chance Act Home Confinement Pilot program?
The criteria is as follows:
- Eligible elderly offender means an offender in the custody of the Bureau, who is not less than 60 years of age and has served 2/3 of the term of imprisonment to which the offender was sentenced;
- Eligible terminally ill offender means an offender in the custody of the Bureau who has been determined by a medical doctor approved by the Bureau to be:
- in need of care at a nursing home, intermediate care facility, or assisted living facility, as those terms are defined in section 232 of the National Housing Act (12 U.S.C. § 1715w); or
- diagnosed with a terminal illness.
Can an inmate go straight to elderly offender home detention? Do they have to go to a Residential Reentry Center (RRC) first?
Inmates approved by the BOP for the Second Chance Act Home Confinement Pilot program provisions of the FSA may be transferred directly from the institution to home confinement. They do not need to release first to an RRC prior to transitioning to home confinement.
Can an inmate apply for the Second Chance Act elderly offender pilot program before his actual eligibility date?
Inmates should apply to the pilot program when they are within six months of eligibility (i.e. have served two-thirds of their sentence). Applications made earlier than that date will be returned.
Who is eligible to earn time credits?
The FSA provides for eligible inmates to earn time credits if they participate in evidence-based recidivism reducing programs or productive activities. An inmate is eligible to earn time credits if:
- He or she was convicted of a U.S. (federal) Code offense; and
- He or she was not convicted of a disqualifying offense.
Note: Participation in these activities during pretrial custody does not count towards time credit participation.
Will deportable aliens be eligible to earn these time credits?
Yes, deportable aliens may earn time credits, but they will not be considered for pre-release custody to the community by the BOP if they are the subject of a final order of removal under any provision of the immigration laws.
Who is eligible to have time credits applied?
Time credits may be applied by the BOP to place an inmate in pre-release custody in the community or on supervised release if the inmate is assigned a minimum or low recidivism risk for their last two reassessments.
Inmates assigned high and medium recidivism risk scores may also be considered if the Warden requests the transfer after determining the inmate does not pose a danger to the community, is unlikely to recidivate, and has made a good faith effort to lower their recidivism risk through participation in recidivism reduction programs or productive activities.
The BOP Director may transfer an inmate to begin a term of supervised release at an earlier date, not to exceed twelve months, based on the application oftime credits under 18 USC 3632.
Can time credits be taken away / restored?
Yes, time credits can be taken away or restored. The BOP will develop guidelines describing when time credits will be taken away if an inmate engages in misconduct or violates the rules and requirements of the relevant evidence-based recidivism reduction program or productive activity. The BOP will inform an inmate of any loss of time credits in writing.
The BOP will only reduce time credits an inmate has earned as of the date of the misconduct or rule violation. The BOP will also develop guidelines to restore time credits an inmate may have lost as a result of a rule violation, based on the prisoner’s individual progress after the rule violation.
Which recidivism reducing programs/productive activities will qualify inmates to earn time credits?
The BOP will identify approved programs and activities in the near future for inmates to earn time credits, which may be applied by the BOP toward pre-release custody or supervised release.
Inmates will only receive time credits for participation in programs and activities directly assigned to them as qualifying evidence-based recidivism reduction programming or productive activities.
If an inmate is not eligible to earn time credits, are there other benefits to participating in programs and productive activities?
Inmates who are not eligible to earn time credits will still benefit from participating in evidence-based recidivism reducing programs due to their inherent value. Additionally, these inmates may be eligible for additional privileges such as increased phone minutes and visitation as well as other other incentives the BOP will describe.
Is there any way to get priority assignment in programs or activities?
During the 2-year period when the risk needs assessment system is being implemented and inmate risk scores are being assigned and needs assessed, the assignment of programs and activities will be prioritized based on an inmate’s release date.
Priority for participation in recidivism reduction programs will be given to medium-risk and high-risk prisoners, with priority access to productive activities given to minimum-risk and low-risk prisoners.
Yes, under the FSA, “faith-based classes or services” that otherwise meet the criteria for evidence-based recidivism reduction programming will qualify for time credits as approved by BOP in the same manner as other approved non-faith based programming.