Debunking More Myths About the FIRST STEP Act and Recidivism

Originally published on Wednesday, May 30, 2018. Last updated on Monday, June 18, 2018.

Before the passage of the FIRST STEP Act, H.R. 5682, opponents of the bill began making misleading, if not completely false, claims about the bill. The opponents of the bill are, in most instances, the very same people who railed against modest sentencing reforms in the 114th Congress that were a part of the Sentencing Reform and Corrections Act of 2015, S. 2123.

The FIRST STEP Act is focused on prison reform, which is one part of criminal justice reform. The bill would require the development of a risk and needs assessment to determine the intensity of programming for the prisoner based on his or her risk of recidivism.

The bill would also provide a modest incentive structure to eligible prisoners to earn time credits for successfully completing this programming and showing concrete progress toward reducing their risk of recidivism. Certain offenders — such as those who committed violent offenses, sex crimes, and other specific offenses — are ineligible for time credits.

We’ve already addressed some of the criticisms of two provisions of the FIRST STEP Act. The claims made about these two provisions, the 500 driving mile provision and the restoration of congressional intent for truth in sentencing law, were either egregiously false or misleading. We’ve also taken a look about the claims about violent crime rates and the reasons people deal drugs, which include addiction and a lack of economic opportunity.

Unfortunately, there are more claims being made about the FIRST STEP Act or other wild claims made that are part of an attempt to undermine the bill. Those making these claims, including those mentioned above, appear to care little about accuracy.

Illegal immigrants make up 32 percent of the federal prison population.

This claim is false. According to statistics published by the Federal Bureau of Prisons, as of May 26, 2018, almost 80 percent of inmates were United States citizens. Nearly 13 percent were citizens of Mexico. Less than 1 percent each were from Columbia, the Dominican Republic, and Cuba. Nearly 5 percent were from other countries or their citizenship is unknown.

The provision that would have required that illegal immigrants eligible for pre-release custody to be transferred to Immigration and Customs Enforcement was removed before the passage of the FIRST STEP Act in the House.

It’s true that the provision no longer appears in the text of the FIRST STEP Act, but there’s a good reason for that. Keep in mind that the Prison Reform and Redemption Act, H.R. 3356, was the precursor to the FIRST STEP Act. Under the Prison Reform and Redemption Act, an eligible illegal immigrant could earn time credits to serve part of his or her sentence in pre-release custody. Rather than being transferred to home confinement, a halfway house, or community supervision, illegal immigrants would have been transferred into the custody of Immigration and Customs Enforcement (ICE).

The original version of the FIRST STEP Act also included the provision. This appears to have been a drafting error. It was removed in the amendment in the nature of a substitute (ANS) that was passed by the House. Both the bill as introduced and the version of the bill that passed the House doesn’t allow “an inadmissible or deportable alien” to earn time credits, rendering the absence of the provision moot because the ability to use time credits for placement in pre-release custody simply doesn’t exist.

But Section 402 requires that minimal- and low-risk prisoners be placed in home confinement. This includes illegal immigrants.

Taylor Millard recently wrote about this in a blog post at Hot Air, in which he thoroughly debunked this claim made by opponents of the FIRST STEP Act, with an assist from John Koufos of Right on Crime. Under current Bureau of Prisons’ regulations, a prisoner who is subject to an ICE detainer wouldn’t be eligible for placement in home confinement.

Detainers are defined in BOP Program Statement 5800.15 as such: "A formal request from a Federal, state, or local jurisdiction for an inmate’s custody upon completion of a term of imprisonment. This definition includes requests for criminal and non-criminal charges (e.g., material witnesses, deportation, probation/parole violator warrants, child support, etc.)." A federal agency such as ICE would be given priority over state or local detainers.

A separate regulation, BOP Program Statement 7310.04, makes it clear that "detainee inmates" — that is, a prisoner subject to a detainer — isn’t eligible are excluded from placement in Community Corrections Centers. Other limitations, including a limitation on "[i]nmates who are assigned a ‘Deportable Alien’ Public Safety Factor," also apply. Another regulation, BOP Program Statement 7320.01, CN-2, excludes inmates with public safety factors from placement in home confinement.

A recent report from the Bureau of Justice Statistics found that 83 percent of prisoners released from state prisons in 2005 were rearrested within nine years. This shows that efforts to reduce recidivism at the state level haven’t worked.

Recidivism can be measured in different ways, including the rearrest rate. But the rearrest rate may not be a good guide. A former prisoner who was arrested may not have been convicted and incarcerated. A better measure may be the reconviction rate or the reincarceration rate.

The Bureau of Justice Statistics (BJS) did recently release data on the rearrest rates of prisoners from 30 states. These prisoners were released in 2005 and tracked through 2014, a nine-year time period. The report shows that 68 percent of these former prisoners were rearrested within three years, 79 percent were rearrested within six years, and 83 percent were rearrested within nine years. Reconviction and reimprisonment rates are not included in the latest BJS report, although the 2014 version did include such data.

Those who oppose criminal justice reform, even prison reform, which is the lowest hanging fruit, are using the BJS data to argue that efforts to reduce recidivism won’t work. But using this data in such a way is misleading, again, because rearrest may not be a fair measure and because the reform movement in the states isn’t captured by the data.

Criminal justice reform is a fairly recent movement at the state level. More than 30 states have passed criminal justice reforms, although some more comprehensively than others. Texas was one of the early states, beginning its reforms in 2007. South Carolina passed reforms in 2010. Georgia didn’t adopt legislation until 2012. These states, as well as others, are seen as successes.

Prisoners tracked in the BJS data wouldn’t have been exposed to the recidivism reduction programming offered as a result of the reforms in these states prior their release in 2005. Moreover, the measure of recidivism by BJS is rearrest rates. Another measure is reincarceration. Texas, for example, had a three-year recidivism rate — as measured by reincarceration — of 21 percent among prisoners released in 2013.

Similarly, South Carolina had a three-year recidivism rate — measured by reincarceration — of 23.1 percent in 2013. Georgia’s three-year recidivism rate — measured by reconviction — was around 27 percent in 2014. Although it’s unclear, these figures may not include reincarceration as a result of technical violations, which could lead to the reimprisonment of former prisoners. Technical violations can include a failure to meet with a parole officer or failing a drug test.