By Belen Avelar and Vaiva Utaraite
WASHINGTON, DC – The U.S. Government Accountability Office (GAO) this week released the latest report on the Department of Justice (DOJ) and Federal Bureau of Prisons (BOP) with the implementation of the First Steps Act and their efforts to help with the needs assessment system and application of the First Step Act time credits for people incarcerated.
In 2021, according to the DOJ and BOP, more than “35,000 people (were released) from federal prisons in the U.S. after serving their sentences.”
And, “approximately 45 percent of people released from federal prison are re-arrested or return to a federal prison within three years of their release,” stated BOP.
In efforts to help reduce recidivism and re-entry to prisons in 2018, “The First Step Act” was introduced by DOJ and BOP.
In order to proceed with the implementation of The First Step Act, according to the GAO, “the Attorney General is required to develop a risk and needs assessment system to be used by BOP to assess the recidivism risk of all incarcerated people in federal prisons and to place these individuals in programs and activities that may help reduce this risk, among other things.”
According to GAO, with “The First Step Act, those incarcerated and who are eligible to earn time credits for their participation and successful completion of the programs and activities are able to earn credits for every 30 days of completion which gives them an opportunity to have their sentence reduced for the amount of time spent in Federal Prison.”
The GAO report and The First Step Act includes three requirements that GAO required DOJ and BOP to implement in order to proceed with the process requirements and that is first “the need to implement and validate the risk and needs assessment system, second identification and evaluation of the programs and third the application of time credits,” as noted by GAO.
As DOJ and BOP efforts in The First Step Act efforts to improve the program to be successful, GAO stated that “BOP must make sure it meets with the incarcerated population needs, including collecting all data necessary, ensuring its evaluation plan has goals and clear milestones, having monitoring mechanisms, and tracking unstructured productive activities.”
The Timeline of the DOJ and BOP concurred with six recommendations for the implementation of the First Step Act Time Credit Procedure, starting with the First Step Act enacted on Dec 21, 2018.
“The risk and needs assessment system is used by the BOP staff to determine the type and amount of programming appropriate for each incarcerated person and to assign recommended programming based on the incarcerated person’s specific needs,” according to the GAO report and the requirements needed in 2018 for the First Step Act.
The risk assessment system is composed of two parts, according to DOJ, which are “the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN) and the Standardized Prisoner Assessment for Reduction in Criminality (SPARC-13).”
In the GAO report, “PATTERN is DOJ’s risk assessment system which means that BOP staff use to analyze factors that can change an incarcerated person over time and factors an incarcerated person cannot change while looking at the risk of recidivism.”
As a result, BOP uses PATTERN to keep track of recidivism amongst those prisoners who are released or return to custody and violent recidivism, which means those who are arrested for committing an act of violence following release.
The second First Step Act procedure was on January 15, 2020, which called for the procedures for initial assessments required for BOP to complete. According to BOP, “staff are required to conduct the initial risk and needs assessments for incarcerated people in conjunction with the initial classification meeting,” adding “that these meetings are to occur within 28 days of the incarcerated person’s arrival at their designated BOP facility.”
The Third First Step Act procedure began on November 25, 2020, which called for the DOJ and BOP to implement the time credit rule for the First Step Act. According to GAO, “in preparation for the First Step Act time credit rule, BOP tracked data on incarcerated person’s program participation to align with the proposed rule.”
“The proposed rule stated that only eligible incarcerated people may earn time credits for participation in evidence-based recidivism reduction programs or productive activities that they successfully complete on or after January 15, 2020,” added GAO.
The First Step Act Time Credits final rule awards “eligible incarcerated people First Step Act time credits based on a presumption of participation for the time that they were incarcerated from December 21, 2018, through January 14, 2020,” since there was no data regarding program participation in Dec. of 2018 the GAO included.
According to GAO, every month, the BOP interim procedure identified eligible groups of incarcerated individuals based on those who were “First Step Act eligible, did not have a detainer, were within 24 months of their projected release date, had a minimum or low PATTERN risk level, and when they are designated to a BOP facility.”
“Within 10 days of the First Step Act Time Credits final rule being published (between January 19, 2022, and January 29, 2022), BOP applied the interim procedure and subsequently transferred 1,090 incarcerated people to supervised release and 117 incarcerated people to prerelease custody,” according to BOP documentation.
The BOP’s website stated, “By October 2022, BOP released 10,239 eligible incarcerated people under the First Step Act.”
On Sep. 6, 2022, the “BOP implemented its automated calculation application,” which allowed “eligible incarcerated people to earn time credits based upon their ‘earning status,’ regardless of the number of evidence-based recidivism reduction programs or productive activities that they participate in, or agree to participate in, each day,” stated the GAO.
After the automated system launched, it ran into some “technical issues” that were fully resolved by Oct. 24 all issues were resolved. In Nov. of 2022, “BOP officials stated that all incarcerated people had their First Step Act time credits calculated.”
According to BOP officials, “unlike the interim procedure, the automated-calculation application accounted for programs that incarcerated people refused or declined, as well as missing needs assessments. This includes incarcerated people who may not have had all 13 needs assessed but were still able to earn First Step Act time credits under the interim procedure. Incarcerated people eligible to earn First Step Act time credits must have a risk level and have completed all need assessments before earning time credits, beginning January 15, 2020.”
First Step Act time credits will first be applied to “eligible incarcerated people’s projected release dates, then towards placement in pre-release custody,” said GAO.
For individuals with a medium to high risk of recidivism “must satisfy certain First Step Act requirements and petition the warden to transfer to prerelease custody or supervised release and have the petition approved to apply earned First Step Act time credits,” stated GAO.
According to BOP data, as of Jan. 29, 2022, “39,394 incarcerated people who were eligible to earn First Step Act time credits were not able to have their First Step Act time credits applied because of their medium or high-risk level status.”
To ensure successful reentry, “BOP must assess an incarcerated person’s risk and needs prior to recommending evidence-based recidivism reduction programs and productive activities for which the person can subsequently earn First Step Act time credits,” stated GAO.