Thousands of Federal Prisoners Aren’t Getting Mandated Time Credits Because Prison Officials Won’t Negotiate

This week’s Department of Justice Report explains how certain components of President Donald Trump’s criminal justice reform bill haven’t been implemented because of labor union negotiations delays. This has meant that thousands of federal inmates have not seen the sentences reduced promised by the bill.

Trump’s biggest success was the passage of The FIRST STEP Act. Federal criminal justice reform legislation helped inmates by retroactively applying sentencing changes to crack cocaine sentences that more closely matched the sentences for powder cocaine. Federal judges also have more power to alter mandatory minimum sentences for drug offenders. An estimated 7,000 individuals were able to benefit from the FIRST STEP Act’s effects last year by being released sooner or having their sentences reduced.

Not all federal prisoners who are eligible for benefits under the FIRST STEP Act receive them. The Department of Justice’s Office of the Inspector General published a memorandum on Tuesday detailing the difficulties in labor negotiations that have prevented the implementation of the rest of the FIRST Step Act.

Collective bargaining must be used to negotiate changes in prison policies. This is regardless of any federal laws like the FIRST STEP Act, which was mandated under the Civil Service Reform Act (1978). OIG reports that there have been no labor negotiations. For the last 20 months, there have not been any policy changes. The problem is that although the BOP wants negotiations to take place remotely, COVID-19 has made it clear that they will insist on negotiations in person.

Michael E. Horowitz, Inspector General, slams the BOP here for their logjam. He notes that the federal COVID-19 guidelines allow for official travel to essential functions, and many prison workers have worked in person during the pandemic due to the work line.

Many of the less well-known policies that were made by FIRST STEP Act are still unaffected three years later. There are also new methods for inmates earning time credits to participate in productive activities such as programs that reduce recidivism. Federal prison inmates are not allowed to use the parole system if they have been convicted since 1987. This is due to the 1984 Sentencing Reform Act (cosponsored by Joe Biden). Inmates who want to lower their sentences must be able to get time credits.

The OIG report states that there are approximately 60,000 federal prisoners who could be eligible for the new program’s time credits. However, they aren’t yet earning these credits because it is still being implemented. The attorney general’s report last year to Congress noted that these credits were not implemented. However, it argued that this was because Congress had approved the return to the community of thousands nonviolent prisoners as part of an urgent COVID-19 bill. This attempt to prevent the spread of the disease inside prisons.

The OIG reviewed the matter and found that it was not.

We identified 50 inmates not to have benefitted from the participation of their BOP facility minimum- and low-risk inmates. This was in addition to our March 2021 review. [FIRST STEP Act] programming. This group of 50 prisoners earned an average of 31 day credits in time and was projected to be released within six months. As of March 27, 20,21, however, none of the inmates were transferred to community.

In addition, the FIRST STEP Act requires that the BOP incentivize prisoners to take part in time credit programs. These incentives could include additional visitation and phone privileges, as well as transfers to facilities near their home. These incentives haven’t yet been implemented due to the impediments in negotiations.

BOP Director Michael Carvajal responded that he refused to meet with unions in accordance with federal guidelines. He states that he won’t implement any recommendations for meeting in person with the prison union, except if it is authorized by Centers for Disease Control and Prevention guidance. But he also says that they may resume these meetings by December. The agency may not have developed formal policies for many of the reforms in the FIRST STEP Act, but it did implement many other changes via guidance and memos.

Carvajal admits that inmates were not receiving time credits, but he states that that information is being tracked. This is not helpful, if the credits are not being used. The OIG noted this in its reply to Carvajal.

This entire dispute is an example of the horrible way that COVID-19 has been used by the federal government to excuse institutional failures. OIG notes in its memo that there are many more recommendations left from previous reviews, some dating back to years prior to the pandemic. People could end up in longer prison sentences because of disagreements among federal employees about how meetings should be conducted.