The 2018 First Step Act—the first major federal criminal justice reform legislation in nearly a decade—established earned time credits (ETCs) to provide early release opportunities for people incarcerated in the federal Bureau of Prisons (BOP).
But to date, implementation of the ETC program has fallen short of expectations. No one has been released early via ETCs, it remains unclear how many—or if any—have actually received any ETCs, and BOP’s proposed rules for accruing and applying credits are restrictive and incomplete.
Though the COVID-19 pandemic has interfered with ETC implementation plans by severely disrupting available programming, without changes now, the outlook for ETCs having a meaningful impact on opportunities for early release is bleak.
How is the ETC system designed to work?
The ETC system aims to provide incentives for completing evidence-based programming targeted to individual risks and needs. As people complete programming designed to reduce their risk of recidivism, they earn credits. Under certain circumstances, these credits can be applied toward early transfer out of BOP institutions into less restrictive settings, such as halfway houses, home confinement, or supervised release.
The First Step Act defined who would be eligible to earn the credits based on offense of conviction and risk level, directed BOP to create a risk and needs assessment system that could help determine risk level and target programming, instructed BOP to identify evidence-based programming and productive activities, and charged BOP with developing the rules and mechanisms governing the new system. The statutorily established Independent Review Committee (IRC) would provide expert advice and guidance.
How could we improve the ETC system?
Although the progress so far has been disappointing, we suggest three ways to maximize the ETC system’s impact. The first would require congressional action; BOP could make the other two changes on its own.
Expand eligibility for ETCs. The First Step Act severely restricts who is eligible to earn time credits based on offense of conviction. As highlighted in an IRC report, more than half the BOP population is disqualified from participating, though the same report found no significant differences in the overall recidivism risk profiles of those who qualify and those who don’t.
Despite this evidence, at the end of the last administration, the US Department of Justice recommended further expanding the list of exclusions. Paring back the list of offenses instead would provide more people with the opportunity to earn time credits and increase the law’s impact.
Regularly reassess the risk scoring for the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN) to ensure the tool accurately identifies people who could be safely released. Under First Step, risk level determines how much time an eligible person can earn and whether accrued credits can be redeemed for early release. PATTERN, the risk assessment tool developed by BOP, was released in 2019, has since been modified, and is expected to undergo further revisions in the future. The Urban Institute’s interactive tool simulates how risk scores are calculated under the most recent version of PATTERN.
Only people at low or minimum risk are eligible to apply their time credits toward early release. Currently, this means that to be eligible, someone must have about a 30 percent or lower risk of general recidivism and about a 10 percent or lower risk of violent recidivism over a three-year period.
Setting aside that BOP’s definitions of general and violent recidivism may be overly broad, early results show that fewer than 2 percent of people scored as low risk by PATTERN have recidivated so far. Although this recidivism rate is not based on the full follow-up period and may not be representative of people who would be released under the ETC program, it’s likely that the three-year recidivism rate will be less than the 30 percent predicted by PATTERN.
This would suggest the cutoffs could be adjusted to provide more people with the opportunity for early release without changing the absolute risk criteria (that is, less than 30 percent risk of general recidivism and less than 10 percent risk of violent recidivism). Monitoring recidivism rates over time and regularly assessing them against the eligibility criteria for applying early time credits toward early release would help maximize the benefits of this program.
- Increase the amount of credit associated with particular programs. First Step dictates that an eligible person can earn either 10 or 15 days of credit toward their sentence for every 30 days of completed programming, depending on their risk level. The law left BOP to identify approved programs and the associated number of credits (in hours) for each approved program (PDF).The conversion rate from hours to days for purposes of the law is currently proposed as eight hours of programming equals one day of credit (PDF).
BOP’s list of approved programming includes one program that receives 240 hours for completion and 15 programs that receive 500 hours for completion. The remaining 64 programs earn fewer. It is unclear how BOP determined the number of hours associated with each program, but even the most intensive programming would result in minimal credits.
By completing a 240-hour program, a person could receive up to 15 days of ETC. The Residential Drug Abuse Program (RDAP), listed by BOP as a 500-hour program, could yield a maximum of one month of ETCs. For comparison, Congress has separately granted up to one year off for successful completion of RDAP.
Reconsidering and increasing the amount of credit associated with approved programming (suggested by the IRC and other stakeholders), could bolster the benefits of the credit and expand opportunities for early release.
Although other provisions of the First Step Act have already led to the early release of thousands of people housed in BOP facilities, the ETC program has yet to be fully designed and implemented. A course correction could expand the impact of the ETCs and enable more people who complete evidence-based programming to earn meaningful credits that can reduce time spent in BOP facilities and facilitate their return to the community.
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