The Bureau of Prisons (BoP) has been evading the implementation of the First Step Act of 2018 through false justifications, false narratives, and semantics. Core provisions of the First Step Act, including time credit incentives have not been implemented according to the plain language of the First Step Act, a clear violation of Congressional intent.
How are they Doing This?
Numerous provisions of the First Step Act were drafted vaguely, and some key words are undefined. Some of these terms were susceptible to either conservative or liberal constructions. The BoP was quick to recognize this fact, and the BoP chose the most conservative approach possible. For example, the definition they chose for productive activity incentive programming and recidivism reduction have completely changed the meaning of the act, resulting in little effect for inmate time-credit incentivization. To make matters worse, any provision in the First Step Act that is vaguely written has been completely diluted by the BoP, resulting in little practical result for key provisions of the Act.
Vaguely drafted provisions have effectively been muted by the BoP, through their subsequent administrative rulemakings, promulgated to define the undefined terms in the First Step Act. The BoP’s reading of the First Step Act’s provisions have been preposterous, completely ignoring Congress’s intent and the plain meaning of the words. Now, the Court must step in to correct the false narratives utilized in the application of the First Step Act.
Failed Court Decisions
District Courts have failed to consider and squash the false narratives pushed by the BoP. There has been a widespread failure amongst District Courts to consider the Congressional intent of the First Step Act, instead buying into the semantics pushed by the BoP. Many District Court opinions fail to utilize any legal analysis, instead arguing in circles before giving the benefit of the doubt to the BoP’s arguments.
Why is this Happening?
The First Step Act time credit provisions, if read according to the plain meaning with regard for Congressional intent, would result in tens of thousands of time credit provisions being filed across the United States. This would result in the early release of thousands of prisoners. The BoP seems to have promulgated their administrative rules to keep this from happening. Those in power at the BoP disagree with the First Step Act politically and are attempting to keep the Act from being implemented as a result.
District Courts on the other hand generally try to avoid embracing these types of issues head on. Traditionally, when these courts have been faced with such a substantial change, they stick with the status quo, likely for fear of being overturned by a higher court. For the First Step Act, this presents a substantial problem: by the time the Act is embraced and implemented, tens of thousands of prisoners are harmed by the delay.
For more information regarding federal sentencing reform, including that relating to the First Step Act, see the premier First Step Act – Time Credit Programs book authored by the Federal Sentencing Alliance and criminal defense attorney Ralph S. Behr.