DOJ Taps Conservative Think Tank to Help Implement FIRST STEP Act

Bill designed to reform federal prisons, reduce prison populations

San Quentin State Prison's Death Row
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April 10, 2019

The Department of Justice announced Monday that a vital component of the FIRST STEP Act would be designed under the direction of a right-of-center think tank, a move that may limit the breadth of individuals affected by it.

The bill, signed into law in December, was designed to both reform federal prisons and slightly reduce their populations. Its central component is the implementation of a new "time credit" system, which gives lower-risk prisoners 10 to 15 days of credit toward prerelease for every month of anti-recidivism training they have completed.

In order to implement the time credit system, however, the Bureau of Prisons will first need its own "risk assessment" tool to determine which people qualify as low or minimal risk. FIRST STEP does not specify what qualifies a person's risk level, but instead instructs the attorney general to consult with an "independent review committee" to design the system. (DOJ was meant to designate a host of the committee within 30 days of the bill's entry into law but was delayed by the December government shutdown.)

The Justice Department said Monday that the independent review committee will be hosted by the Hudson Institute, a right-leaning think tank based in Washington, D.C. Hudson will have the discretion to appoint committee members, who will work to advise on the shape of the final risk-adjustment tool.

Sen. Tom Cotton (R., Ark.) was a prominent conservative opponent of the bill. But his office told the Free Beacon that it views this latest decision as a strong call by the Justice Department.

"The Department of Justice made an outstanding choice by selecting the Hudson Institute to help implement the First Step Act," Cotton's office said. "The Hudson Institute is well equipped for this task."

The creation of the risk-adjustment tool may still be revving up, but other components of the FIRST STEP Act are already on their way to implementation. These include new guidelines on detaining juveniles and shackling pregnant women; work toward reports on need for medication-assisted drug treatment and dyslexia prevalence in the prison system; and pilot programs for youth mentoring and other reform efforts.

In addition, under the bill's sentence-reduction provisions, some 826 federal offenders have already seen their terms shortened, and 643 have been released early. This is thanks to the bill's retroactive application of the 2010 Fair Sentencing Act, which reduced the sentencing disparity between crack and regular cocaine—the individuals freed under retroactivity saw their sentences shortened as though they had been sentenced under the revised guidelines. A further 22 individuals have been released under new "compassionate release provisions" for the sick and elderly.

However, many more who expected release under the bill's early release provision are still waiting, thanks to a drafting error only identified in January. The bill clarified the preexisting federal "good time" credit system (different from the one newly added to the bill), ensuring prisoners received 54 days off their sentence per year of good behavior. This change, which added seven days to the Bureau of Prison's previous interpretation of the law, was expected to free some 4,000 federal offenders.

That said, the change's placement in the law meant that this release is delayed by months, until the DOJ has completed its implementation of a new program ostensibly unrelated to the "good time" credit change.

"Thousands of families believed the law would bring their incarcerated loved ones home immediately, but that hasn't happened because of a drafting error," Kevin Ring, president of the pro-release group Families Against Mandatory Minimums, said of the situation. "We know it was an honest mistake, but even honest mistakes must be corrected. Families should not have to suffer because Congress erred when drafting this reform."

Attorney General William Barr, who promised during his confirmation hearing to "faithfully implement" the FIRST STEP Act, reiterated that commitment Tuesday.

"The Department of Justice is committed to implementing the FIRST STEP Act," said Barr. "I am grateful to Hudson Institute for hosting this important committee, which will lead to better policies at the Department and, ultimately, better outcomes for prisoners reentering society."