When the U.S. Department of Justice published a rule finally spelling out how the federal Bureau of Prisons (BOP) would implement the First Step Act of 2018, the headlines trumpeted that thousands of people in federal prisons were now eligible for release. The news spread quickly among the 153, 053 Americans incarcerated in federal prisons, first sparking hope and jubilation, then quickly followed by disappointment and confusion.
I know, because I live behind bars in one of the U.S.’s 122 federal prisons. And while I am among the fortunate ones who will (hopefully) be released early to the community where my four kids and numerous nephews, nieces and cousins live, the anticipation is bittersweet. I look around and see so many other good men who deserve a second chance, yet are denied because the First Step Act (FSA) was written to specifically exclude them. So, while it’s good news that the BOP stopped its foot-dragging and is finally moving to enforce this critical aspect of the act, what we really need is a second look at the law itself.
Passed by Congress during the administration of former President Donald Trump, at first glance, the FSA did seem to address some of the “tough-on-crime” prison and sentencing laws that ballooned the federal prison population and earned the U.S. the highest incarceration rate in the world. To name just a few of the benefits of the act: It eased the harsh sentences required for individuals convicted of drug crimes, made it easier for prisoners to petition for compassionate release, and required the Federal Bureau of Prisons to offer rehabilitation programs and link them to an opportunity for early release and other privileges.
However, the devil, as they say, is in the details. And the details, along with the BOP’s reluctant, fitful and arbitrary implementation, have turned the FSA into, at best, a measure of relief for a select few. At its worst, the First Step Act is a mechanism for further reinforcing the discriminatory nature of the U.S. criminal legal system.
A long list of individuals is excluded from the FSA’s offer of release to home confinement or community halfway houses in recognition of their participation in rehabilitation-related activities and a low risk-assessment score. According to the independent review committee mandated by the FSA itself, more than half of the BOP population is disqualified from participating, even though no significant differences in recidivism risk have been documented between those who are eligible and those who aren’t.
Thus, for example, anyone convicted — often decades previously — of virtually any type of act classified as violent, or who is charged with being an “organizer, leader, manager or supervisor of others” when distributing three of the most common street drugs in use today (fentanyl, heroin and methamphetamines) is ineligible. They aren’t even given a chance to demonstrate that they ready to return to their children or parents. Forty-five percent of people held in federal prisons are incarcerated for drug-related offenses, and as a Black man who is one of them, I can attest to the lax meaning of the “leader” accusation. All it takes is for one other person to claim that you “directed” them to carry some drugs or make a call to get stuck with a charge of being a leader. (Very often, people make these claims as part of a bid to reduce their own penalties.)
I qualify for FSA earned-time credits simply because I was charged with conspiracy to sell cocaine (based solely on the claim of a cooperating witness), instead of one of the other three drugs. Yet one of my friends, who was just 18 when he was sent to federal prison as a first-time “offender,” is shut out, simply because his charges involved methamphetamines and a gun. On what rational basis am I granted the chance to demonstrate rehabilitation and he is not?
Even those of us who win this “lottery” are struggling to figure out how to meet the act’s other requirements. Earned-time credits are received in return for completing approved rehabilitation programs or “productive activities.” But the availability of approved courses varies widely from institution to institution, and due to COVID and staffing shortages, the waiting lists for what is on offer are long. I just asked about education and was told by staff the only courses available are GED and ESL classes. As for jobs, the only FSA-eligible positions at my institution are offered by UNICOR, a for-profit arm of the government that manufactures items for sale, from uniforms to license plates. Yet other prison jobs — duties like janitorial work and food services, which keep the prisons themselves running (and for which workers are paid abysmally low wages) — don’t qualify for earned-time credit.
So, yes, the fact that the Bureau of Prisons finally did what it should have done more than two years ago is good news for those of us who fit into one of the act’s arbitrary categories and manage to jump through the other hoops. But for too many others, it is an excruciatingly small first step. Now, Congress needs to listen to the independent review committee — and to incarcerated people and advocates around the country — and implement broader and more meaningful measures to release people from prison.