Report of the Independent Review Committee Report Pursuant to the Requirements of Title I Section 107(g) of the First Step Act (FSA) of 2018 (P.L. 115-391)

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A cautionary note about the data used in this report: It represents a snapshot in time taken a little more than nine months after initial implementation of FSA, a major reform of BOP custodial and reentry practices and administration. There is no long-term post-release recidivism data on which to base judgments about the effects of that reform. Moreover, during the first nine months of this year, COVID-mitigation efforts undertaken by the Department of Justice (DOJ) and BOP seriously interrupted or curtailed rehabilitative programming in federal prisons. DOJ reports that 20 of 29 BOP-designated Evidence-Based Recidivism Reduction Programs (EBRPs) have been “highly impacted” by the virus, including “some that have been shut down entirely since the outbreak began.” COVID-inspired intake slowdowns and early releases (e.g., more than 19,000 transfers to home confinement) have also affected the size and composition of BOP’s inmate population. In short, the data in this report, while useful for an examination of initial FSA implementation efforts, cannot be considered reflective of a “normal” year. With these qualifications in mind, the IRC offers the following summary findings:

  • Eligibility requirements for FSA’s earned time credit (ETC) program-participation incentives are currently quite restrictive: less than half of federal inmates are eligible. As of September 26, 2020, the federal prison population totaled 142,033, with73,246 inmates (51.5%) classified ETC-ineligible due to conviction offenses specified inTitle 18 §3632(d)(4)(d) as now amended by FSA §101(a).
  • A large majority of BOP’s currently ETC-ineligible inmates are ineligible due to sentences associated with a small cluster of related offenses. About 65% of ETC-ineligible inmates are in BOP custody for federal firearms violations; crimes involving the sexual exploitation, abuse, or trafficking of minor children; and high-level drug manufacturing or distribution. The remaining 35% of ETC-ineligible inmates are serving sentences for a wide range of other federal crimes.
  • There appears to be no significant difference in the collective recidivism-risk profiles of BOP’s ETC-eligible and ETC-ineligible inmate populations. As calculated by PATTERN—the risk assessment system required by FSA and subsequently implemented by DOJ and BOP—ETC-ineligible inmates captured in this report’s data are54.44% “high” (36.32) or “medium” (18.12) risk and 43.14% “minimum” (14.38) or“low” (28.76) risk. PATTERN classifications for FTC-eligible inmates are 55.11%“high” (36.67) or “medium” (18.44) risk and 44.62% “minimum” (17.21) or “low”(27.41) risk.
  • There does not appear to be any statistically significant racial or ethnic differences between the ETC-eligible and ETC-ineligible inmate populations. Demographically, the ETC-ineligible cohort roughly mirrors the BOP inmate population as a whole. More white inmates are ETC-ineligible than ETC-eligible, the only racial category for which this is true. And no obviously skewed distribution patterns are apparent within minority inmate communities. 40.5% of currently ETC-eligible inmates are Black and 28.5% areHispanic, while 35.08% of ETC-ineligible inmates are Black and 30.99% are Hispanic.
  • Program participation rates vary by age, race, ethnicity and gender. In both ETC-eligible and ETC-ineligible populations, older, Hispanic, and Black inmates are less likely to be involved in programming than younger inmates and members of other ethnic and racial groups.
  • Program participation rates appear to be significantly higher for ETC-eligible inmates. ETC-eligible inmates participated in programming during 2020 at a rate of30.8% (29% of eligible male inmates and 46.2% of eligible female inmates). By comparison, only 18.8% of ETC-ineligible inmates were involved in programming during2020 (18.2% of ineligible males and 37% of ineligible females). These statistics represent provisional evidence that Title I-established earned time credits do provide a program-participation incentive to federal inmates.
  • Based on our review of available data and discussions with staff at BOP, the IRC finds that even a full return to pre-COVID-19 BOP programming levels will not be sufficient to make available “evidence-based recidivism reduction programs and productive activities for all eligible prisoners” in Bureau custody by January 2022, as that quoted language from the text of FSA Title I requires. As IRC members have previously advised the House and Senate Judiciary Committees or their representative staff, the Bureau will require significant additional appropriations in order to muster the personnel and programming access necessary to achieve that goal.
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