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March 23, 2021

ABA Criminal Justice Section releases report on First Step Act implementation

WASHINGTON, March 23, 2021 — The American Bar Association Criminal Justice Section has released a report from its Task Force on the Implementation of the First Step Act that includes three concerns surrounding the implementation of the criminal justice reform law that was enacted in 2018.

The report has not been approved by the ABA’s House of Delegates or the Board of Governors and therefore may not be construed as representing the policy of the American Bar Association.

The First Step Act (FSA) criminal justice reform bill was passed with bipartisan support from Congress and signed into law on Dec. 21, 2018, by former President Donald J. Trump. The bill, among other changes, reforms federal prisons and sentencing laws in order to reduce recidivism and decrease the federal inmate population.

The Criminal Justice Section created the task force shortly after the bill’s passage to monitor the progress of realizing the goals of the law. The task force includes a diverse cross section of defense attorneys, prosecutors, academics and judges.

The three concerns of the task force are:

  • The need for greater transparency. The data underlying the development and validation of the risk and needs assessment system should be disclosed. Why have some of the factors been so significantly changed in the January 2020 revision of Prisoner Assessment Tool Targeting Estimated Risk and Need (PATTERN)? When and how will we know whether PATTERN is resulting in racially disparate impacts? What additional suggestions of the Independent Review Committee have not yet been implemented?
  • The need for a needs assessment tool. Measuring risk is only the first step under the FSA; the critical next step is to evaluate the needs of prisoners and develop and provide programs and activities to meet those needs. By ignoring this piece, the DOJ is making the assumption that existing programming will reduce a person’s risk of recidivism. But in reality, unless the person’s criminogenic factors – those needs that relate to reoffending and that can be addressed through intervention – are addressed, there is no evidence to suggest that a person’s risk to reoffend will actually be lowered. The DOJ’s work must continue until it has completed a Needs Assessment Tool of the kind “Congress appears to have had in mind.”
  • The removal of obstacles and parsimonious implementation choices. Numerous choices have been made in the implementation of the FSA that are unduly parsimonious and should be revisited. Too many prisoners are disqualified from eligibility. There are not enough eligible programs available, and the Bureau of Prisons’ proposed time credits rule would dramatically reduce the benefits for participation in the programming and activities that are available. The PATTERN tool has been devised in a manner that is unduly parsimonious and unnecessarily eliminates a further swath of prisoners from having any early release benefits to show for their rehabilitative efforts.

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