Thousands of prisoners expecting to go home under the First Step Act are stuck behind bars indefinitely due to an apparent drafting error, frustrating families and leaving policy advocates pushing for a White House fix.
The bill, President Trump’s biggest bipartisan policy achievement, passed in December, but a key provision retroactively expanding “good time” credit landed in a section that could delay implementation by seven months.
Three sources who work closely with lawmakers and administration officials say it’s their understanding that the White House is looking for an administrative fix.
White House Counsel Pat Cipollone met with advocates in mid-January to discuss the issue, which is affecting roughly 4,000 people who expected to go home immediately.
“I think [Cipollone] really understood the intent,” said a person with direct knowledge of the meeting. “I think they understood this was a key provision. … This was a key part of [legislative] negotiations.”
Present at the meeting were David Safavian of the American Conservative Union and Jessica Sloan of #Cut50, a bipartisan activist group that aims to lower incarceration levels in all 50 states.
Trump unveiled a near-final draft of the bill in November, calling its bundle of sentencing, prison, and prisoner re-entry reforms “the right thing to do” before prodding Senate Majority Leader Mitch McConnell, R-Ky., to allow a vote when intra-GOP objections darkened its outlook.
The bill expands days off for good behavior from 47 to 54 for each year served. For people serving decades, seven additional days means release months early.
Most provisions were not written to apply retroactively. The “good time” expansion was an exception, as was a provision allowing crack cocaine convicts to be resentenced. The crack change was implemented quickly.
It became clear, however, that an immediate “good time” expansion would not happen. The provision was placed in a part of the law that created “earned time” sentence reductions, allowing early transfer to a halfway house or home detention after anti-recidivism classes. The “earned time” provision allows the Justice Department up to 210 days to set up a risk assessment system, which will judge the requirements to participate.
“I think it was just an oversight,” said Kevin Ring, president of Families Against Mandatory Minimums. “People were focused on making sure the good time got increased and that it was retroactive. It ended up getting put in the section with ‘earned time.’”
A few fixes are being discussed. The easiest would be for the White House to order the Justice Department to apply the 54 days of “good time” credit immediately. Other fixes would require legislation — either a unanimous consent motion or a spending bill provision — but legislative gridlock amid a partial government shutdown makes neither likely.
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“I don’t think it’s something that gets cleared up quickly,” said Sloan, who declined to comment on the White House meeting but said it’s her position that existing law allows 54 days of good time if the administration decides it does.
“I’m hopeful the White House will issue some sort of directive to the DOJ, which will issue a directive to BOP, but there are a lot of administrative [steps] there,” Sloan said.
“The recalculation of ‘good time’ credit is simply a data entry,” agreed Amy Povah, founder of the Clemency for All Non-Violent Drug Offenders, or CAN-DO, Foundation. “That should take 15 seconds.”
The White House and Federal Bureau of Prisons did not respond to requests for comment.
Justice Department spokesman Wyn Hornbuckle said guidance has not yet been issued to the BOP, calling the law “complex.”
“We know that inmates and their families are particularly interested in the changes regarding ‘good conduct’ time. While changes in the First Step Act may result in additional credit for inmates, we note that the changes are not effective immediately nor are they applicable to all inmates,” Hornbuckle said.
For people in prison, the delay is a major blow.
“He’s ready to come home,” said Veda Ajamu, whose brother Robert Shipp, 46, has served 25 years and expected near-immediate transfer to a halfway house or home confinement, as is typical toward the end of sentences.
“We’re talking now 25 years, 4 months, and 10 days for him. It makes me really sad, because I can’t do anything. For a person who’s been in prison so long, that’s a hard pill to swallow,” Ajamu said.
Charles “Duke” Tanner, who has served 14 years of a 30-year sentence, does not expect to get out immediately but said other people are anxious to leave.
“My cellie was all excited because he was looking at an immediate release. Some men even gave away their property because they thought they were out the door,” Tanner said.
“I have faith President Trump will fix this,” he added.
