Under the First Step Act, you can earn time off your prison sentence by participating in programs and activities. You can earn 15 days off your sentence for every 30 days of participation in “evidence-based recidivism reducing programs and productive activities.”
But which programs and activities actually qualify? So far, the answer to that question isn’t entirely clear.
What kinds of programs and activities does the First Step Act require?
The First Step Act says that prisoners can earn time of their sentences for participation in “evidence-based recidivism reducing programs and productive activities.” Federal law, specifically 18 U.S.C. § 3635 defines both terms.
Evidence-Based Recidivism Reducing Programs
It defines “evidence-based recidivism reducing programs” as “a group or individual activity” that does three things.
First, the program must have “been shown by empirical evidence to reduce recidivism or is based on research indicating that it is likely to be effective in reducing recidivism.”
Second, the program must be “designed to help prisoners succeed in their communities upon release from prison.”
And third, the program “may include” the following:
- “social learning and communication, interpersonal, anti-bullying, rejection response, and other life skills;”
- “family relationship building, structured parent-child interaction, and parenting skills;”
- “classes on morals or ethics;”
- “academic classes;”
- “cognitive behavioral treatment;”
- “substance abuse treatment;”
- “vocational training;”
- “faith-based classes or services;”
- “civic engagement and reintegrative community services;”
- “a prison job, including through a prison work program;”
- “victim impact classes or other restorative justice programs; and”
- trauma counseling and trauma-informed support programs.”
It defines the term “productive activity” as “a group or individual activity that is designed to allow prisoners determined as having a minimum or low risk of recidivating to remain productive and thereby maintain a minimum or low risk of recidivating….”
The law also states that the activity “may include the delivery of the programs described” above.
Are prisoners getting time credits for these programs and activities?
Federal prisoners should get credit for participating in these programs and activities. But they might not get that credit now. And it’s too soon to tell whether the BOP will give it to them in the future or not.
To begin with, the BOP has taken the position that it doesn’t have to award time credits until Jan. 15, 2022. As BOP officials claim, the First Step Act does give them until Jan. 15, 2022 to “phase in” these programs and activities.
But that date is the absolute latest they can do it. The BOP officials’ choice to wait until then simply because they can is deliberate. Additionally, it prevents incarcerated people from rehabilitation that whole time.
But the government is doing more than delaying the start of these programs and activities. It is also fighting prisoners in court who want credit for their participation.
Over and over again, the Department of Justice has argued that certain programs and activities don’t count—even though you’d think they would. Interrogating Justice recently analyzed Cazares v. Cooper. That is a court case where the DOJ argued that classes on anger management and substance abuse shouldn’t count.
This probably sounds like bad news. It probably is. But there is good news, too. Some BOP officials aren’t delaying the start of programs and activities. And they are counting the programs that should count. But it’s important to know that the First Step Act isn’t flawless despite what media reports may say.
The First Step Act included significant criminal justice reform measures. Some of them are working. But some of them aren’t. It seems that the First Step Act’s time credits for participation in “evidence-based recidivism reducing programs and productive activities” is an example of measures that aren’t working. At least not yet.
But this news isn’t all bad. Some BOP officials have awarded time credits just how the First Step Act tells them to. This is a good thing. Hopefully it won’t be long until every BOP official does the same.