Thousands of nonviolent federal prisoners eligible for early release under a promising Trump-era law remain locked up nearly four years later due to inadequate implementation, confusion and bureaucratic delays, prisoner advocacy groups, affected inmates and former federal prison officials say.
Even the Biden administration’s attempt to provide clarity to the First Step Act by identifying qualified inmates and then transferring them into home confinement or another form of supervised release appears to be falling short, according to prisoner advocates familiar with the law.
The Department of Justice was tasked with carrying out the law through the federal Bureau of Prisons, but the bureau director, Michael Carvajal, a Trump administration holdover, announced his retirement in January amid criticism of a crisis-filled tenure marked by agency scandals. No replacement for Carvajal has been named, and criminal justice advocates contend that for the bureau to allow even one person to be incarcerated beyond what is permitted under the First Step Act exposes ongoing failures.
“It shouldn’t be this complicated and it shouldn’t take this long,” said Kevin Ring, president of the nonprofit advocacy group FAMM, also known as Families Against Mandatory Minimums. “Here we are, four years later, and it’s maddening.”
The Justice Department published a final rule in January that implements an integral feature of the law in which inmates can earn so-called time credits, which are obtained through participation in prison and work programs and calculated as part of the process of getting out early.
The problem, advocates say: They are identifying inmates whose time credits aren’t getting applied, and in some cases, the inmates aren’t getting released as early as they should be.
Courtney Curtis, a former Missouri state lawmaker who was sentenced last year to 21 months in federal prison for wire fraud related to the misallocation of campaign funds, said in a letter shared with NBC News that his time credits have not been adequately counted after participating in programs such as “Be Successful,” “Drug Education” and “Talk to your Dr.”
Curtis, 41, who is being held in the Federal Correctional Institution Elkton in Ohio, said he hasn’t had his time credits added since January, and if they were, he believes he would have been released in early June. His current release date is Oct. 22.
“As one of the many inmates that benefit from the FSA,” he wrote, referring to the First Step Act, “I’ve made strides to take classes, work and stay productive, but the BOP and its systemic way of operating inefficiently have stymied my ability to take the most amount of classes in an orderly fashion as prescribed in the FSA or to release me as soon as I should’ve been … I can only wonder if this is by design, and what the total extent of impacted inmates is.”
The Justice Department declined to comment on Curtis’ case, citing privacy reasons.
Data provided by the Bureau of Prisons shows that as of June 18, more than 8,600 inmates have had their sentences recalculated and are slated for release with the application of their time credits. But it’s unclear how many qualified inmates are entitled to have been released early but remain incarcerated.
In a response, bureau officials said “We have no data which suggests inmates had their release dates delayed.”
But with the bureau’s own data identifying about 66,600 inmates who are eligible to earn time credits, some industry experts disagree.
“We estimate that there are thousands of inmates who will not receive the full benefit — days off of their federal prison sentence — of the First Step Act simply because the agency is uncertain how to calculate these benefits,” said Walter Pavlo, president of the consulting firm Prisonology LLC, whose experts include former Bureau of Prisons case managers, wardens and sentence computation professionals.
Calculating time credits
Holly Harris, a longtime Republican strategist who pushed for passage of the First Step Act as head of the nonpartisan Justice Action Network, said the change in administrations is no excuse for a slow rollout.
“Not only that, but the Biden administration ran on criminal justice reform, and now we can’t get answers for anything,” she said, adding that she hopes Carvajal’s replacement will “dig in quickly and prioritize those individuals who are just languishing in prison needlessly to the unnecessary expense of the taxpayer.”
In 2018, then-President Donald Trump signed the bipartisan First Step Act as a way to reduce recidivism and ease the federal prison population, which has fallen in recent years but still includes more than 140,000 inmates currently in custody. In particular, the law’s supporters believe it can cut particularly harsh sentences for nonviolent drug offenders and lessen the racial disparities affecting people of color in the criminal justice system.
Within the law’s first year, more than 3,000 inmates were released from prison early, according to the Justice Department, with the total now more than 7,500 inmates. An inmate’s eligibility is measured by an algorithm known as the Prisoner Assessment Tool Targeting Estimated Risk and Needs, or PATTERN, scoring them in different categories, including their history of violence and whether they’ve been involved in serious incidents while incarcerated, to determine if they might re-offend. In order to collect time credits for early release under the First Step Act, inmates must be at a “minimum” or “low” risk of re-offending and not have been convicted of certain serious crimes.
Time credits are granted based on an inmate’s participation in prison and work programs over a 30-day period related to anger management, mental health, financial literacy and other topics that seek to address behavior and instill personal skills. Once the credits are calculated and it is determined those credits equal the time left on the sentence, the inmate can be transferred out of prison into “pre-release custody,” such as a halfway house or home confinement. Some may also be eligible for supervised release like probation.
But prisoner advocacy groups say the availability of these rehabilitation programs varies widely depending on the prison, which means some inmates simply can’t access enough earned time credits. The situation has worsened because of staffing shortages amid the Covid pandemic.
In addition, some inmates say, even if they’ve taken the appropriate classes, their time credits aren’t being regularly calculated, potentially delaying their ability to get released sooner.
The Justice Department’s final rule also allows for time credits to be counted retroactively for any prison and work programs inmates participated in after the First Step Act became law in 2018. But Pavlo said the Bureau of Prisons never had the mechanisms in place to adequately track inmates’ participation and he is concerned the agency “is not facilitating the timely calculation and application of time credits in accordance with the final rule, forcing inmates to serve custodial terms longer than required.”
In the cases he’s reviewed, he said he has seen inmates in prison from six months up to a year who could have had either an earlier release or time in pre-release custody.
“The biggest problem is nobody on the front lines seems to understand the new rule,” Pavlo said. “There needs to be a task force on this now.”
Revising the algorithm
The Justice Department said it is continuing to evaluate its use of the PATTERN algorithm after concerns by advocates that some risk categories that the tool examines are believed to exacerbate racial disparities. The agency’s statistics published in November found that about 55 percent of white inmates were classified as “minimum” or “low” risk for recidivism compared to about 28 percent of Black inmates.
In its 2022 annual report examining the effectiveness of the First Step Act, the Justice Department said it was implementing another updated version of PATTERN “in an effort to mitigate against various racial and ethnic disparities associated with prior risk level categories.”
But Jim Felman, a Florida criminal defense attorney who has examined the First Step Act, said more transparency is needed about how the algorithm is being tweaked to ensure that prisoners of color aren’t at a disadvantage, particularly since Black people and Latinos remain overrepresented in U.S. prisons.
The federal government has “shown the world how we lead in imprisonment, but we can also show the world how to lead in getting people out,” he said. “Why wouldn’t we let every mathematician in the world see our data so we can evaluate how racist any new version of the tool might be?”
The Bureau of Prisons reiterated in an email that Attorney General Merrick Garland has “directed the continued study of the tool to improve the equitability, efficiency, and predictive validity of the risk assessment system.”
The frustration has been felt by former incarcerated prisoners like Dianthe Brooks, 52, who in 2018 received a four-year sentence after pleading guilty to wire fraud in a million-dollar kickback scheme.
She said she was released early from prison in Danbury, Connecticut, to home confinement in 2020 because she has underlying medical conditions that put her at higher risk for Covid. But it wasn’t until her time credits were recalculated in January under the Biden administration’s renewed efforts that her ankle monitor was removed. She believes that would have happened in June 2021 based on her time credits if the program had been running as intended.
Now, Brooks is advocating on behalf of other inmates at Danbury and across the country to ensure they understand their rights under the law.
“It’s still vague how they’re calculating time,” she said. “Nobody can give you a manual for here are the classes that qualify, the credit you’ll get and here’s how they’re applied. That doesn’t exist. So how do I even know if my time was calculated correctly?”
Another former Danbury inmate and prisoner advocate, Alice Phillips, said she was surprised to learn that after working in the prison grounds crew, the manual labor ultimately didn’t qualify for time credits. She said she was given no guidance by the prison, other than being told in December 2019 that she was a minimum-risk offender eligible under the First Step Act.
Phillips, 56, who received a two-year sentence in 2019 after she was convicted of wire fraud related to a real estate scheme, was also released to home confinement in 2020 because of the Coronavirus Aid, Relief and Economic Security Act. She said she continued to work during home confinement in prison-approved jobs, but those time credits were never counted as they would be now, leaving her probationary period to last until 2024, instead of 2023.
Prison officials at Danbury declined to comment about specific inmate allegations, but said in a statement that they communicate “essential information” in several ways, including through computer announcements, one-on-one program review appointments and town hall meetings, and “each inmates’ release date is calculated in accordance with federal statutes.”
But Phillips believes the First Step Act hasn’t lived up to its promise for everyone.
“I behaved. I did the work. I qualified for these credits,” she said. “I’m not free, but I could be free sooner.”