Maureen Baird
Maureen Baird

Three federal sentencing and prison specialists, Maureen Baird, Mark H. Allenbaugh, and Alan Ellis, assess whether or not the First Step Act, a bipartisan piece of legislation passed in 2018, is beneficial. They argue that, in view of the ongoing pandemic and the high number of Covid-19 deaths in federal prisons, earned time credits, which allow for early release for low-level criminals, should be used more frequently.

After passing unanimously on December 18, 2018, the First Step Act (FSA) is a bipartisan sentencing reform measure that has a direct impact on federal inmates in the custody of the Bureau of Prisons who are serving a federal prison sentence (BOP). In order to improve conditions within the Bureau of Prisons (BOP), it was aimed to lower the number of people incarcerated who received excessively harsh sentences.

FSA for inmates not universally enforced

The prison bureau began releasing thousands of offenders from residential reintegration centers (RRC) and those who were on home confinement on January 13, 2022, according to the latest available information. Within a week, the RRC population had decreased by more than 4,000 people, and the number of people under home confinement had decreased by more than 3,000 people.

However, as of January 19, 2022, the number of inmates detained in Bureau of Institutions prisons has only marginally decreased. The number of people returning to live in their own homes, on the other hand, has marginally grown, possibly as a result of the awarding of earned time credits (ETCs).

Global Covid 19 Death Toll Mounts To 270537 May 9 How Inmates Can Get Early Release Under The First Step Act

The FSA helps to lower the jail population by offering more avenues for some defendants to avoid being sentenced to a mandatory minimum sentence that would otherwise be imposed. Most offenders have the potential to significantly decrease their sentences by successfully completing certain programs that are intended to lessen the likelihood of recidivism. ETCs are awarded to the offender for completing the program successfully.

Inmates eligibility for Earned Time Credits Program

In order to be eligible for ETCs, inmates must meet both of the following requirements: (1) have a pattern score that is at or below a certain threshold (the FSA’s risk assessment instrument used by the BOP), and (2) not have a conviction for a disqualifying offense (terrorism, espionage, human trafficking, sex offenses, and other crimes determined to be violent).

Pre-release custody, such as a halfway house or home confinement, must also be available to offenders who meet the requirements. ETCs are not available to deportable non-citizens, inmates with a medium or high pattern risk assessment score, or offenders who have committed any of the disqualifying offenses, among other things.

ATCs can be earned by engaging in and successfully completing particular BOP programs and/or work assignments by inmates who meet the eligibility requirements. Each 30 days of continuous programming is worth 15 days in ETCs, which is calculated at a rate of 15 days per 30 days. ETCs can be used to pay for additional community-based programs (like as halfway houses and home confinement) or to help an offender complete his or her term.

In addition to allowing eligible convicts to be released from BOP custody into community-based programs (such as halfway houses or home confinement), ETCs allow eligible inmates to begin their period of supervised release earlier than would otherwise be possible (up to 12 months earlier). Prior to the passage of the FSA, offenders were only eligible for up to 12 months in a halfway house and six months of home confinement, not to exceed 10 percent of their sentence, whichever was the lesser of the two options.

The ETC program, on the other hand, is not available to inmates with a medium or high pattern score, non-citizen offenders, or those who have committed a disqualifying offense. Others perks and privileges, such as extra visits, additional phone or email minutes, and additional commissary benefits and privileges, may be available to them as a result of their work assignments and participation in specific programs.

Because nearly half of BOP facilities are operating at or above their rated capacity, not employing ETS to its full potential was particularly harmful in the wake of the Covid-19 pandemic. In addition, at least 94 of the BOP’s 192 facilities are operating at or over 100 percent of their rated capacity.
This overcapacity has likely contributed to the exceptional number of Covid-19 inmate deaths, which has reached an all-time high. As the graph above demonstrates, there were only 102 inmate deaths by accident between 2001 and 2018, 182 homicides, and 167 deaths due to AIDS over that time period.

Covid-19, on the other hand, has murdered at least 288 convicts in less than two years, according to official figures (not including seven staff and 18 inmates in private facilities).


The fact that the BOP is finally granting FSA ETCs to inmates couldn’t have arrived at a better time. Unfortunately, it appears that this effort is moving more slowly than anticipated, which could not come at a worse moment given the fact that the virus is still raging throughout the BOP’s institutions.

Increasing the use of FSA ETCs can, without a doubt, make a significant difference in reducing, if not completely eliminating, the BOP’s inmate population. For the Bureau of Prisons to combat the spread of COVID-19 within its many facilities, reducing the number of inmates is likely to be the most effective method available. This allows for greater social distancing, reduces the number of transmission vectors, and reduces the impact on the BOP’s healthcare infrastructure during subsequent surges.

Source : bloomberglaw