FIRST STEP Act: 500 Driving Mile Rule and Restoring Congressional Intent to Truth in Sentencing Law

Last week, the House Judiciary Committee approved the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person (FIRST STEP) Act, H.R. 5682, by a 25 to 5 vote. Four Democrats voted against the measure because the bill doesn’t have any sentencing reforms. Only one Republican voted against it. Approval by the committee sets the stage for a floor vote, likely in the coming weeks.

The crux of the bill is that it would require the implementation of evidence-based recidivism reduction programming in federal prisons and allow eligible offenders to earn time credits to serve part of their sentence in home confinement, halfway houses, or community supervision. It also has other long overdue provisions, mostly related to prisoner re-entry into society. The bill is modeled after the reforms in more than 30 states, including Georgia and Texas, to reduce recidivism and enhance public safety.

Generally referred to as “prison reform,” the bill is the lowest hanging fruit of criminal justice reform. Efforts in the states have passed with little to no opposition because there is universal agreement that reducing recidivism, or offenders’ likelihood of reoffending, is the key to promoting public safety. Incentives like time credits matter because an offender will likely work hard to reduce his or her risk in exchange for leaving a prison cell to enter into some form of pre-release custody.

Still, some are taking aim certain provisions of the FIRST STEP Act, particularly the “500 driving mile” requirement and the retroactive application of the good time credit fix. Opponents of these provisions are making claims either by making wild claims about their effect or misrepresenting them.

Section 401 amends 18 U.S. Code 3621(b) to require the placement of prisoners in facilities within 500 driving miles of their primary residence. Close family ties are proven to reduce recidivism, yet many prisoners are incarcerated unreasonable distances from their spouses and children. Evidence shows — such as a 2006 study by the Western Criminology Review and another from the Ohio Department of Rehabilitation and Correction — that prisoners are less likely to reoffend when they are closer to their loved ones.

In an interview with the Marshall Project, which pointed to the aforementioned studies, Kevin Kempf of the Idaho Department of Correction said, “Any time you move inmates away from the people who can support them, away from where they’re going to actually re-enter society, I have to say it is flat-out correctional malpractice.”

Section 401 provides the Bureau of Prisons, which is part of the Department of Justice and oversees federal correctional facilities and prisoners, latitude to depart from the 500 driving mile rule if the facts of the individual case warrant departure. It makes the requirement “subject to bed availability, the prisoner’s security designation, the prisoner’s programmatic needs, and the prisoner’s mental and medical health needs.” In short, prisoners, such as Dzhokhar Tsarnaev and Zacarias Moussaoui, who have a higher security designation or point range, aren’t leaving ADX Florence. Well, that’s not entirely accurate, Tsarnaev will eventually be transferred to USP Terre Haute, where he will be executed.

Moreover, 18 U.S. Code 3621(b) has other qualifiers, such as the “the nature and circumstances of the offense” and statements or recommendations of the court related to placement.

Another aspect of the FIRST STEP Act that has been criticized is Section 102, which amends 18 U.S. Code 3624(b) to clarify initial congressional intent for truth in sentencing laws. Prisoners are able to earn “credit toward service of sentence for satisfactory behavior,” or “good time credits,” of up to 54 days per year. However, it leaves the calculation of these time credits up to the Bureau of Prisons. The agency has interpreted language that requires prisoners to serve 85 percent of their time to exclude the sentence time taken off by good time credits, resulting in a maximum of 47 days of good time per year, instead of the intended 54.

Section 102 would simply alter the language of 18 U.S. Code 3624(b) to ensure that prisoners may receive “up to 54 days for each year of the prisoner’s sentence imposed by the court,” as was the original intent of the law. The Bureau of Prisons’ creative math to limit the scope of good time credits has flown in the face of congressional intent for years.

An amendment adopted unanimously in committee markup further clarifies that this intent would apply retroactively, providing the intended time credits to prisoners who have earned them and still retaining full compliance with truth in sentencing law.

It is true that prisoners who have earned these time credits fairly but have been improperly denied them by the Bureau of Prisons and are currently being held longer than Congress intended will be released as their 54 days of good time credits instead of 47 days are applied. The Supreme Court did uphold the Bureau of Prisons’ interpretation of the 18 U.S. Code 3624(b) in Barber v. Thomas (2010), allowing the Bureau of Prisons to continue applying the good time credits toward the term of imprisonment rather than the sentence imposed.

The proposed change in the FIRST STEP Act is merely a congressional response to an executive agency blatantly and intentionally misinterpreting congressional intent. In what was so evidently a power grab by the agency to force prisoners to serve longer than the 85 percent truth in sentencing law standard requirement, the Bureau of Prisons hoped that Congress would not act to right this wrong.

Now, however, clarified language closes this power-grab loophole for the Bureau of Prisons, which will now be directed by Congress to apply the law as it was intended. Those who will benefit are only the best-behaved prisoners who have, as current law states, “displayed exemplary compliance with institutional disciplinary regulations.” This is far from the reckless jailbreak that alarmist opponents of prison reform claim it to be.

Such offenders deserve application of the law as it was intended, no matter when they entered the federal prison system. Additionally, they are more likely to return to society upon release as compliant citizens, as they were compliant with authorities as inmates. This is what second chances in America are all about.

Alarmist rhetoric singling out common-sense, broadly supported, and even unanimously agreed-to provisions of the FIRST STEP Act fail to hold up to even minimal scrutiny. These efforts are misleading and dishonest. The goal of prison reform is to increase public safety, and these provisions tie into this goal.

They would minimize the risk of recidivism by keeping inmates near the society they will re-enter when practicable and maximize the use of prison resources and space not on those who have shown exemplary good behavior while incarcerated, but instead on those who pose real threats to society. These provisions, alongside Title I of the FIRST STEP Act that creates an incentive structure for prisoners to participate in evidence-based recidivism reduction programming, would produce notable improvements to public safety and lower crime rates across the country.

Sarah Anderson contibuted to this post.