Senators Durbin and Grassley have asked the Attorney General to reconsider a proposed federal regulation that would substantially affect the time credits for engaging in Evidence-Based Recidivism Programming (EBRR). We are going to take a look at the rule, the Judiciary Committee’s Letter and what this could mean for the incarcerated.
The First Step Act and the Evidence Based Recidivism Reduction Programming
As many of you know, the FIRST STEP Act was signed into law in December of 2018. The FIRST STEP Act did many things, among them being the creation of an Evidenced Based Recidivism Reduction Program. In this program, individuals who are either a minimum or low risk of recidivism who have been determined to have specific needs are allowed to take classes to both address those needs and to get credit that they can later use to get home earlier.
Specifically, as relevant here, inmates who complete 30 days of evidence-based recidivism reduction programs are awarded extra days of time credits:
‘‘(A) IN GENERAL.—A prisoner, except for an ineligible prisoner under subparagraph (D), who successfully completes evidence-based recidivism reduction programming or productive activities, shall earn time credits as follows:
‘‘(i) A prisoner shall earn 10 days of time credits for every 30 days of successful participation in evidence- based recidivism reduction programming or productive activities.
‘‘(ii) A prisoner determined by the Bureau of Prisons to be at a minimum or low risk for recidivating, who, over 2 consecutive assessments, has not increased their risk of recidivism, shall earn an additional 5 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.
The FIRST STEP Act did not define how much time credit a person had to take in order to get counted for a “day.” In other words, if a person gets 10 days of credit for every 30 days of participation in a course, then how many hours do they need? Is it 30 X 24= 720 hours? Is it 30 X 8=240 hours? Or is it some other number?
The Bureau of Prisons’ Proposed Regulations and Potential Impact in Time Credits
On November 25, 2020 the Bureau of Prisons submitted a proposed regulation concerning the evidence-based recidivism reduction program. This regulation, among other things, indicates that for purposes of the Evidence Based Recidivism Reduction Program, a “day” is eight hours. Further, FSA Time Credits may only be earned for successful completion of Evidence Based Recidivism Reduction Successfully Completed on Or After January 15, 2020.
These proposed changes are in the federal register, where they can eventually become official absent intervention such as withdrawal, revisions by the proponent of said rule or being voted down by congress.
The Senate Judiciary Committee and Their Response
The Senate Judiciary Committee, a committee charged with the duty of “providing oversight of the Department of Justice and the agencies under the Department’s jurisdiction (including the Bureau of Prisons)”, wrote a letter to the Attorney General on May 5, 2021 asking for changes. That letter, which is available here, identifies the following problems with the November 25, 2020 memorandum:
Restriction of Ability to Earn Time Credits
The letter realizes and concedes that “day” is not statutorily defined in this code section but reiterates that an inmate that participates in “one eight-hour period” of a completed EBRR completes a “day” of the course. The letter states “given the limited programs offered and the duration and frequency of programs, earning enough time credits to meaningfully reduce prison time would be nearly impossible under this definition.” Further in the letter it is confirmed that in order to get 10 days of credits a person must complete 720 hours of programming.
Restriction Penalizes Inmates for Courses Taken Before January 15, 2020 and Courses for Self-Identifying Needs:
The First Step Act does not require the BOP to limit earned time credits to completion of assigned programming. As such, inmates who self-identified needs and participated voluntarily in programming before January 15, 2020 would receive no benefit. This is in conflict with the FIRST STEP Act, which allows for credits based on all programming completed after the passage of the FIRST STEP Act in 2018.
Restriction Penalizing Individuals in Residential Reentry Centers:
The proposed rule excludes prisoners in residential reentry centers or home detention. This is true even though those persons are still in BoP custody and still are legally eligible to receive time for the programs.
Harshness of the Rule’s Penalties:
The rule proposes that inmates may lose earned time credits for violations of prison rules or requirements of an [Evidence Based Recidivism Program].” But these lead to severe outcomes. One absence from a work assignment could result in the loss of 30 days of earned credits when, under the rule, a person would need to complete 720 hours of work to earn the same amount.
This letter was signed by both the chair and the ranking member of the Senate Judiciary Committee.
Next Steps for Proposed Regulation:
From here, it is up to the Attorney General to determine what happens next. A federal regulation can be edited or amended, or it can be withdrawn. Indeed, Yale’s journal on regulation has a good example of a time when previously approved regulations were withdrawn.
While Attorney General Garland has explained much about his role he has not explained how prison reform will fit in. We hope that a withdrawal of this specific regulation happens quickly and that a new regulation is made that is more in line with the purpose of the FIRST STEP Act.