Editor’s Note: Michael Cohen, the former personal attorney to former President Donald J. Trump, is a podcaster and vocal advocate for prison reform. E. Danya Perry, a former federal and state prosecutor, is a Trustee of the Vera Institute of Justice and a founding partner of Perry Guha LLP. Joshua Perry was General Counsel at the New Orleans Public Defenders and Special Counsel for Civil Rights to the Connecticut Attorney General. He is Of Counsel with Perry Guha, LLP. The views expressed in this commentary are their own. Read more opinion on CNN.
Last week, the Federal Bureau of Prisons (BOP) announced that it will—finally—keep a key justice reform promise made in 2018’s First Step Act.
Thursday’s release of a new rule interpreting the act opened the door to community reintegration and family reunification for up to half of all the people in federal custody, according to data from the Department of Justice.
For a long time, under Donald Trump’s administration, the BOP seemed to slow-walk and even undercut the First Step Act’s reforms, resulting in a patchy and unjust application.
We know this personally. One of us (Danya Perry, along with the firm she co-founded, Perry Guha LLP) is a lawyer who took the BOP to court over its refusal to quickly and properly implement the First Step Act—and won. Another (Michael Cohen) was a federal inmate who took the BOP on by himself, making the same arguments that prevailed in Danya’s case—and lost.
The First Step Act passed with rare bipartisan supermajorities and was signed into law by then-President Donald Trump on December 21, 2018. It enacted a suite of modest but meaningful reforms to the federal criminal legal system, where more than 157,000 people are in post-conviction custody. The Act’s reforms ranged from retroactively lowering racially discriminatory sentences for certain qualifying crack cocaine convictions to expanding a “safety valve” that allows some people convicted of drug offenses to be sentenced below the mandatory minimum.
And, importantly, the act set up the “Time Credit” program, allowing people in custody who have been convicted of nonviolent offenses to earn up to 15 days of credit for every 30 days of participation in recidivism reduction programs or “productive activities” like prison jobs. Time credits don’t shorten your sentence, but they can make you eligible for earlier transfer to a halfway house, home confinement or supervised release. That’s a big deal. BOP data shows that about half of all people in federal custody—tens of thousands of people—are eligible to earn those credits and get an early start on reintegration and family reunification.
One problem was that the act never defined how much programming a person in custody must complete in order to earn a “day” of participation. And it wasn’t 100% clear about when the Time Credit program actually was to begin.
The act left those things to the BOP—part of the Department of Justice—to work out. And the BOP’s first draft of a rule—known in administrative law lingo as a “proposed rule”—released on November 25, 2020 in the waning days of the Trump administration, seemed to set people up to fail.
The proposed rule required people in custody to complete eight full hours of programming in a day in order to earn a day’s worth of credit—even though, as the act’s bipartisan authors pointed out in a public letter, “BOP programs do not run for eight hours per day.” And it refused to give credit for programming completed before January 15, 2022—even though untold numbers of people in custody worked countless hours in response to the act’s promise.
The proposed rule wasn’t law, of course. Rules are proposed before they’re finalized, to give affected people a chance to comment and push back.
And we did push back. In Goodman v. Ortiz, Perry Guha represented a client, who had earned enough Time Credit for immediate release, but whom the BOP refused to transfer to a halfway house or home confinement. A federal judge in the district of New Jersey granted the petition and ordered the BOP to follow the act and give the petitioner the credit that he’d earned, which resulted in his release to a halfway house. Michael, meanwhile, was held in a different jurisdiction. And when he applied for relief from a different federal court, he didn’t get it—despite having qualified in the same way as Goodman. Those are the kinds of unequal, arbitrary results you get when the law isn’t clear or evenly applied.
But that won’t happen going forward. The Biden administration final rule, released last week, fixed both of those problems with the Trump administration’s first draft. And now, as the DOJ announced, thousands of people in custody will be eligible for release—including some who will be released “immediately.”
Goodman v. Ortiz helped to establish that Congress, in passing the act, intended the BOP to move quickly to give out Time Credits. And the BOP admirably, listened to the court’s ruling, citing Goodman in explaining why its new rule would grant credits for programming completed from December 18, 2018 onwards.
That’s only fair: When the First Step Act passed, a lot of people in custody began working hard for Time Credits. They should be given what they had been promised and what they had earned. We can’t ask people to pay a debt to society while society refuses to make good on its promises to them.
The BOP also listened to the voices of directly-impacted people and to the act’s bipartisan authors in allowing up to 15 days of credit for every 30 day period of program participation—no matter how many hours per day the program runs. Again, that’s only fair. People in custody don’t decide how many hours of programming the BOP offers and they shouldn’t be penalized for the BOP’s programming decisions.
Let’s be clear: There is still a lot of work to be done. There are strong indications that the BOP is not offering enough high-quality programs to help support people in prison, particularly during the pandemic.
While unquestionably impactful, the act was indeed only a “first step” towards broader changes that are desperately needed to reduce our cruel and counterproductive overreliance on incarceration. And even this welcome development does not erase the needless suffering of too many people, while the BOP pushed back against inmates seeking time credit and initially proposed a rule that cut against Congress’ intent.
But, after years of frustration, this is an unmistakable win for incarcerated people and their families, for advocates and for a country that is still struggling to be rehabilitated from its chronic addiction to incarceration.
