WASHINGTON – U.S. Senate Majority Whip Dick Durbin (D-Ill.), Chair of the Senate
Judiciary Committee, and U.S. Senator Chuck Grassley (R-Iowa), Ranking Member
of the Senate Judiciary Committee, today urged the Department of Justice (DOJ)
to direct the Bureau of Prisons (BOP) to expeditiously revise the proposed rule
published on November 25, 2020, regarding earned time credits authorized by the
First Step Act of 2018 (FSA). In a letter to Attorney General Merrick Garland,
the Senators highlighted why the previous administration’s proposed rule would
undermine the FSA’s incentive structure, decrease program participation, and
ultimately undercut the effectiveness of the FSA.
“We ask that you reevaluate and amend the rule
consistent with the statute’s goals of incentivizing and increasing program
participation to reduce recidivism,” Durbin
and Grassley wrote. “Establishing
robust programming and a fair system to earn time credits is critical to
meeting the FSA’s goal of reducing recidivism.”
In their
letter, Durbin and Grassley said that the proposed rule greatly restricts the
ability to earn credits, allows credits to be earned only for programs that
were assigned and completed after January 15, 2020 (more than two years after
the FSA’s date of enactment), excludes prisoners in residential reentry centers
or home detention from earning credits, and imposes unduly harsh penalties on
inmates to lose credits.
Full
text of the today’s letter is available
here
and below:
May 5, 2021
Dear
Attorney General Garland:
We
respectfully request that you direct the Bureau of Prisons (BOP) to
expeditiously revise the proposed rule published on November 25, 2020,
regarding earned time credits authorized by the First Step Act of 2018 (FSA).
As proposed, the rule severely limits the incentive structure designed to increase
program participation and would undercut the effectiveness of the FSA. We ask
that you reevaluate and amend the rule consistent with the statute’s goals of
incentivizing and increasing program participation to reduce recidivism.
The
proposed rule undermines the FSA’s incentive structure in several
respects. First, by defining a day as eight hours of programming the rule
greatly restricts the ability to earn credits. Under the FSA, eligible inmates
“shall earn 10 days of time credits for every 30 days of successful
participation in evidence-based recidivism reduction programming [EBRR] or
productive activities [PAs].” While not statutorily defined, the plain meaning
of a day of participation is every calendar day during which a person
successfully participates in an EBRR or PA, with the length of participation
determined by the program. Instead, the proposed rule defines a day as “one
eight-hour period” of a completed EBRR or PA. Using this definition, an inmate
who participates in a program one hour a day for eight days would earn just one
“day” of participation under the FSA. 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.
Second,
the proposed rule allows credits to be earned only for programs that were
assigned and completed after January 15, 2020, more than two years after the
FSA’s date of enactment. The FSA does not require BOP to limit earned time credits
to completion of assigned programming. BOP’s inclusion of this
limitation in the proposed rule is particularly troublesome because BOP has not
developed an effective needs assessment, as required by the FSA. Under the
proposed rule, inmates would not be rewarded for self-identifying needs and
voluntarily participating in programming. The proposed rule also, without
authority or explanation, prohibits credits for programs completed before
January 15, 2020, when the FSA allows for credits based on all programming
completed after the statute’s enactment on December 21, 2018.
Third,
the FSA directs that all eligible federal prisoners in BOP custody shall earn
credits for program participation, but the proposed rule would exclude
prisoners in residential reentry centers (RRCs) or home detention. Because
prisoners in RRCs and home detention are in BOP custody, the rule is contrary
to the FSA. In fact, the FSA specifically anticipated that prisoners on home
detention would continue to participate in programming by listing program
participation as one of a few authorized reasons prisoners may leave home while
on detention.
Finally,
we are concerned that the proposed rule’s penalties are unduly harsh. The rule
proposes that inmates may lose earned time credits “for violations of prison
rules, or requirements and/or rules of an [EBRR or PA],” applying the same
procedures used for loss of good time credits. Especially when combined with
the time required to earn credits under the proposed rule, the penalty for violations
would be too severe. For example, one unexcused absence from a work assignment
could result in the loss of 30 days of earned credits, although earning those
credits would require completing 720 hours of programming. The rule also
imposes penalties for violations of program requirements, rather than just
violations of “prison rules or [EBRR or PA] rules,” as the FSA requires,
suggesting that failure to fulfill the requirements of a program not only could
result not only in a failure to earn time credits for participation, but also
the loss of credits previously earned.
While
losing hard-earned credits would be easy, the rule makes restoring credits too
difficult. The FSA simply requires “a procedure to restore time credits that a
prisoner lost as a result of a rule violation, based on the prisoner’s
individual progress.” However, the proposed rule would only allow for
restoration after “clear conduct for at least four consecutive risk and needs
assessments.” These assessments may only be completed annually, so it could
take a prisoner at least four years to restore lost credits, longer than the
average sentence.
For
these reasons, we ask that you direct BOP to expeditiously revise the proposed
rule consistent with the comments above. Establishing robust programming and a
fair system to earn time credits is critical to meeting the FSA’s goal of
reducing recidivism.
Thank
you for your time and consideration. We look forward to your prompt
response.
Sincerely,
-30-
