Looking Back, Looking Forward: The First Step Act and the Art of the Possible Free

Abstract

December 2024 marked the sixth anniversary of the First Step Act (FSA), the most significant federal criminal justice legislation enacted in decades. Not to diminish FSA’s “front-end” changes, the weight of the landmark legislation fell squarely (and heavily) on the federal Bureau of Prisons. Since then, the bureau has made significant strides implementing many of the statute’s provisions. Comparatively, the FSA only modestly impacted U.S. Probation and Pretrial Services (USPPS) and federal court operations. In this article, the authors share some of what they have learned about the bureau’s FSA progress, with particular emphasis on the efforts to evaluate program effectiveness, to bolster programs in areas of need, and to assess more thoroughly the individual needs of those whom the bureau now refers to as “Adults in Custody,” or AICs. The authors then look back on the FSA’s impact on the judiciary to date and look forward and encourage USPPS, federal judges, and other stakeholders to take complementary steps to further advance the spirit of the FSA. The article concludes by recommending that the judiciary imagine the “art of the possible,” where, in a post-Booker era, validated assessment tools are incorporated into the pre-sentence process for more just sentencing.

Background

The bipartisan 2018 First Step Act (FSA) brought sweeping changes to the federal criminal justice system, both at the “front end” (i.e., sentencing) and at the “back end” (i.e., prison and reentry). While multiple efforts at correctional reform during the previous decade had failed to materialize results—typically due to partisan disagreement—passage of the FSA came almost as a shock. Major federal reform suddenly became possible. The legislation was very wide ranging, but the most sweeping and complicated provisions targeted Bureau of Prisons operations directly. In many ways the FSA forced the bureau to make recidivism reduction its priority, or at least put rehabilitative efforts on par with institutional safety. From some perspectives, the FSA may be perceived as Congress micromanaging federal corrections. On the other hand, arguably, the FSA might not have been needed had the bureau been less resistant to earlier reform efforts.¹ For decades the bureau’s overriding emphasis had been security; rehabilitative programs, except for those statutorily dictated, were an optional opportunity for those interested. In fairness, the dominance of the bureau’s security culture should not be surprising, given the glut of federal incarceration that followed the draconian drug laws of the late 1980s and early 1990s. From 1990 to its high point in 2013, the bureau’s population climbed from 64,936 to 219,298, an increase of 238 percent. The population now stands at 158,501 as of June 2024.² The bureau managed that untenable, prosecution-driven increase, but something was perhaps lost along the way.

For the Bureau of Prisons, the FSA could not have come at a worse time. Within a month or two of the FSA’s enactment, there was a major government shutdown that lasted for months. The COVID-19 pandemic, the first in a century, followed soon after. The pandemic, and all its associated challenges, fueled a major loss of staff, from which the bureau still has not recovered. It has been during this tempest that the bureau—never considered a nimble, transparent organization—has labored to transform its operations as dictated by Congress, which imposed very strict time frames and specified deliverables under the FSA. Simultaneously, the bureau is also now reckoning with other crises, including crumbling infrastructure, high-profile reports of sexual assaults by staff, and the belated recognition of an excessive reliance on solitary confinement (i.e., restrictive housing) to address all manner of misconduct. It is not the best of times for the bureau, but it seems that current leadership intends to wholly transform its culture and operations.³

In 2024, the U.S. Senate Judiciary Committee held a hearing titled “Five Years of the First Step Act: Reimagining Rehabilitation and Protecting Public Safety.” The hearing focused on various ways to reimagine rehabilitation and public safety, highlighting the bureau’s progress as well as implementation challenges to date. Additionally, the U.S. Sentencing Commission (USSC) announced its priorities for its 2024 amendment cycle, the first of which was “assessing the degree to which certain practices of the Bureau of Prisons are effective in meeting the purposes of sentencing as set forth in 18 U.S.C. §3553(a)(2) and considering any appropriate responses including possible consideration of recommendations or amendments.”⁴ This priority is particularly noteworthy in the post-Booker environment, wherein the United States Sentencing Guidelines are “merely advisory.”⁵ We agree that reimagining rehabilitation in the federal system is a good idea, a very good idea. So is being fully informed about what happens within the bureau, particularly for those charged with fashioning a just sentence. This article aims to advance both being well informed and reimagining. Several of us are retired from the U.S. Probation and Pretrial Services (USPPS) system but have continued to work and to learn more about the FSA and bureau operations generally. And one of us brings lived experience from within the confines of the bureau. As we look both back and forward, we want to expand upon some of what has been done to date, to help overcome the challenges, and to work collaboratively toward achieving the FSA’s full intent and potential. What might USPPS and the judiciary do to help fulfill the FSA vision? We have some thoughts on how to move forward.

Below we first share a few details that provide context in which to understand the genesis of the FSA, followed by an admittedly short-shrift presentation of what is in fact a very complex and expansive statute. We follow this with an educational effort that explores (1) some of the bureau’s efforts to assess the efficacy of their current programs and to follow Congress’s directive to learn from other correctional systems; (2) steps taken to improve current bureau programs and to increase program capacity; and (3) how the bureau currently assesses the risk and responsivity factors that inform FSA programming for “adults in custody” (AICs), as the bureau now refers to them. There follows a brief review of the FSA’s impact on the USPPS and the judiciary. We conclude with a discussion of whether the USPPS and judges might enhance the pre-sentence process by leveraging current bureau assessment tools to inform the Court and parties prior to sentencing. This we refer to as “the art of the possible.”

The Scale of the Problem

Before diving deeply into the complexities of FSA implementation, it is important to pause and acknowledge the scale of the U.S. carceral problem. The United States incarcerates a higher percentage of its population than almost any other country in the world; at the end of 2023, the United States had the highest number of incarcerated individuals worldwide, with almost 1.8 million in prison.⁶ It is followed by China, with 100,000 fewer. Additionally, particularly in the federal system, there are glaring racial disparities in rates of incarceration, driven by inequities in social environments, penalty structures, and prosecutorial practices.⁷ Despite these well-known facts, many Americans seem inured to our nation’s overreliance on incarceration and to its disparate racial and socioeconomic impact. Moreover, there is growing consensus, based on the empirical literature, that incarceration is iatrogenic, meaning it often exacerbates the very problems it is meant to address.⁸

The Bureau of Prisons is the largest prison system in the country, and people released from federal prison face tremendous obstacles. These obstacles include all the same barriers as those releasing from state and local facilities, but people releasing from federal prisons routinely face an additional challenge: attempting to reunify with their families and communities after being held in facilities far from home, perhaps several states away, or even across the country. Prosocial bonds, such as family visits, are further hampered by these practices, as is access to reentry service providers in the communities to which people will return. For example, an author of this article was incarcerated in Brooklyn, New York, and Lewisburg, Pennsylvania, despite residing and being sentenced in Maine.

Often the drivers of criminal behavior, referred to as dynamic criminogenic needs, and associated responsivity factors have not been addressed during incarceration, or they have been made worse. Currently, 89 percent of the federal postconviction population, supervised by U.S. probation officers, come by way of the bureau. Also, recidivism rates for the people under federal supervision remain stubbornly high. One report by the USSC found that the recidivism rate, based on rearrest for a new crime or for a violation of conditions, was 49.3 percent. Half as many (24.6 percent) were reincarcerated.⁹ A perhaps more accurate reflection of new criminal conduct or serious noncompliance of those on federal supervision was reported in September 2023. That study found “one in three individuals (35 percent) failed (i.e., was rearrested or revoked) within three years of starting a term of supervision. This rate is an increase from the supervision failure rate reported in fiscal year 2021 (34 percent). Failure rates are highest within the first 12 months of supervision (17 percent).”¹⁰ Both reports reveal that too many who return after leaving federal custody are not yet equipped to succeed in a free society. Some fail quickly and, at times, at great cost to public safety. Clearly, work remains to be done.

There is a belated but very welcome awareness among practitioners and the public at large of the need for criminal justice systemic reform at all levels of government, and it is refreshingly bipartisan. There has been some academic attention to the various structural, technical, bureaucratic, and cultural obstacles that, within the federal system, confound the creation of a truly seamless continuity of care for those releasing.¹¹ However, many of these obstacles will remain, absent major legislation and system restructuring.¹² Regrettably, restructuring federal reentry does not appear to be high up on anyone’s to-do list. We contend, however, that there are still opportunities to sentence more effectively, to improve service delivery and continuity within the federal criminal justice system, to help people rebuild their lives after imprisonment, and to achieve much needed reductions in recidivism. Given that the vast majority of those in the bureau’s custody will come under the judiciary’s authority and USPPS supervision, working better and more closely across branches of government just makes good sense.

The First Step Act (in a Nutshell)

As we explore the bureau’s efforts, keep in mind that, within the judiciary, the USPPS began the move toward evidence-based practices (EBP) nearly two decades ago. The implementation challenges were significant, and much remains to be done, but the Probation and Pretrial Services Office (PPSO) of the Administrative Office of the U.S. Courts (AOUSC) made landmark progress, including developing and deploying an actuarial risk assessment tool to inform pretrial service recommendations, an assessment tool to inform postconviction case planning (PCRA), and a federal version of core correctional practices for fostering behavior change for those on community supervision (Staff Training Aimed at Reducing Recidivism [STARR]). These were huge strides in establishing twenty-first-century evidence-based community corrections within the federal system. In recognition of the system’s EBP implementation challenges, the PPSO has launched a greater implementation effort to bolster the effective use of EBP within the USPPS.¹³

The bureau, in comparison, is barely six years into FSA implementation. The FSA directed the attorney general and the bureau to develop a risk assessment system that pushed beyond their traditional practice of assessing only risk of institutional misconduct, and to assess for risk of post-release recidivism. This, in effect, implied that the Department of Justice (DOJ) and the bureau would be judged based on the impact of their programs beyond the prison gates. In many ways, this ran counter to the bureau’s focus on safety and security in its institutions, where rehabilitative programming had long been available but rarely compelled. Indeed, some earlier bureau experts had argued that prisons should not even be expected to change the behavior of those in their care:

Fortunately, this perspective is wholly antithetical to the intent of the FSA and to the vision advanced by the bureau’s most recent director. But bureaucracies, especially those as sprawling and as complex as the Bureau of Prisons, do not change easily.¹⁵ Indeed, it may take a generation of committed leadership and staff to recast the bureau into what it deserves to be, a state-of-the-art, therapeutic custodial environment that assures the safety of all as it seeks to minimize the intrinsic harms of incarceration. There is much to do, but the change has begun.

The first step in the reframing of bureau operations was the development of a risk and needs assessment. The purpose of the risk assessment system was to provide a mechanism to measure what the statute referred to as individual risk and needs and to assign AICs to one of four risk levels. This information would then help bureau staff encourage AICs to participate in what the statute refers to as evidence-based recidivism-reducing (EBRR) programming and productive activities (PAs) that would help AICs mitigate their criminogenic needs. The FSA lynchpin, however, was to incentivize AICs to participate in EBRRs and PAs by offering increased time in pre-release status or earlier release onto their term of supervised release. The initial risk tool, referred to by its acronym, PATTERN, draws exclusively from the bureau’s antiquated data and case management system, named SENTRY; by statute, PATTERN must undergo continual validation and revalidation. However, other than measures of institutional misconduct, PATTERN’s data elements are mostly static and therefore are not particularly helpful in identifying what rehabilitative programming is needed for what risk factor. (In contrast, the USPPS’s PCRA identifies four dynamic risk factors—cognitions, antisocial peers, employment/education, and substance use disorder—that officers can target through case planning and programming and provides an opportunity for officers to note responsivity factors.) To complement PATTERN and to identify dynamic risk factors, the bureau began to develop what is referred to as SPARC-13, which includes what the bureau indicates are thirteen different criminogenic needs:

1. Anger/hostility

2. Antisocial peers

3. Cognitions

4. Dyslexia

5. Education

6. Family/parenting

7. Finance/poverty

8. Medical

9. Mental health

10. Recreation/leisure/fitness

11. Substance use

12. Trauma

13. Work

While in our opinion some of the thirteen items would be more accurately described as responsivity factors, SPARC-13 helps to align the bureau’s various programs with the individualized issues that AICs are confronting. The DOJ and the bureau have been transparent regarding the development of PATTERN and SPARC-13. A thorough explanation of this somewhat complex evolution of PATTERN and SPARC-13 is available to anyone who reviews the 2021 First Step Act: Initial Review of the SPARC-13 Needs Assessment System.¹⁶ Awareness of the bureau’s efforts to individualize risk and to fashion programming is critical for judges, defense counsel, prosecutors, and USPPS officers, both those preparing pre-sentence reports (PSRs) and those supervising people who are released from the bureau. We note that the USSC apparently agrees, as it updated its website last year with a detailed explanation of the FSA and the credit award system.¹⁷

The Bureau Has Been Busy

The bureau has often been criticized for its failure to provide men and women adequate preparation for release.¹⁸ Except for pursuing a GED, as required by statute, inmates are not compelled to participate in any treatment or programming,¹⁹ and sentencing judges’ recommendations for programming while in custody are not binding on the bureau. As noted above, the FSA aimed to greatly enhance the bureau’s ability to assess risk, to increase impactful programming, and to incentivize participation with Federal Time Credits (FTCs) for some AICs. Below we highlight three areas where the bureau has been very active: (1) assessing current programs, (2) building program capacity, and (3) assessing need.

Assessing Current Programs

An underlying assumption of the FSA was that the bureau had evidence of the effectiveness of their rehabilitative programming. Congress’s assumption was faulty. Indeed, a major sign of the primacy the bureau had historically placed on security (and not rehabilitation) is the fact that the bureau, for decades, had made very little effort to evaluate the effectiveness of its programs. James Byrne, a noted criminologist and member of the independent review committee charged with oversight of bureau’s risk assessment implementation, noted:

To address the absence of empirical support for the bureau’s programs in support of the FSA, the DOJ, either through the National Institute of Justice or through the bureau, began issuing contracts for outside professional research firms to evaluate key bureau programs. The National Institute of Justice, the DOJ’s primary research arm, provided its support by contracting with outside researchers to help fulfill FSA provisions that require “ongoing research and data analysis” on EBRR programs.²¹ The evaluation is for recidivism reduction as well as other related outcomes (e.g., housing stability, employment, demonstrating academic management, participation in structured activities, food security). The research focuses on six bureau programs:

• Female integrated treatment: A modified therapeutic community residential program that offers female offenders integrated cognitive behavioral therapy (CBT) for substance use disorders, mental illness, and trauma-related disorders, as well as vocational training. The program is designed to assist women in assessing and advocating for their individual needs and translating the results of their assessment into selection of programs and plans to meet their reentry goals.

• Threshold Program: A nonresidential faith-based reentry program open to both male and females. It is open to those across the agency who seek to be surrounded by positive values and responsibility, regardless of religious affiliation.

• Life Connections: A faith-based reentry program designed to address religious beliefs and value systems. Participants are connected with a community mentor at the institution and with a faith-based or community organization at their release destination. Like the Threshold Program, it is open to those across the agency who seek to be surrounded by positive values and responsibility, regardless of religious affiliation.

• Steps Toward Awareness, Growth, and Emotional Strength (STAGES): A unit-based residential psychology treatment program for individuals with a diagnosis of borderline personality disorder.

• Skills Program: A unit-based, residential treatment program designed to improve institutional adjustment of those who have intellectual and social impairments. Individuals with lower IQs, neurological deficits from acquired brain damage, fetal alcohol syndrome, autism spectrum disorder, and/or remarkable social skills deficits are more likely to be victimized and/or manipulated by those more sophisticated.

• Non-Residential Sex Offender Treatment Program: Designed to target dynamic risk factors associated with reoffense in sexual offenders, as demonstrated by empirical research. These factors include sexual self-regulation deficits and sexual deviancy, criminal thinking and behavior patterns, intimacy skills deficits, and emotional self-regulation deficits.

The bureau has contracted with other research organizations and universities to evaluate other important programs. Some are retrospective studies, others prospective:

• Bureau Rehabilitation and Values Enhancement (BRAVE) is a CBT-based, residential treatment program for young males serving their first federal sentence. AICs typically participate in this program at the beginning of their sentence. Programming is delivered within a modified therapeutic community. Participants interact in groups and attend community meetings while living in a housing unit separate from the general population.

• The bureau’s Anger Management Program is undergoing a three-year retrospective evaluation by contracted researchers and will later be evaluated prospectively upon the initial study’s completion.

• The bureau’s Office of Research and Evaluation is retrospectively evaluating its Resolve program, the bureau’s primary CBT program to address trauma.²²

Additionally, the bureau contracted with expert researchers who were tasked with full review of the extant research literature on the efficacy of every EBRR program and PA, to summarize its findings, and to include the “variables of interest to include symptom reduction, components likely to support institutional adjustment of participants, and misconduct/criminal recidivism. The goals of this project were to (a) review the evidence base for all the Bureau’s identified EBRR Programs and PAs, (b) document findings regarding the effectiveness of these programs outcomes of adjustment and behavior, and (c) inform future FSA program updates/revisions.”²³ Lastly, given the prominent role that Federal Prison Industries (FPI) (formerly UNICOR) plays within the bureau, as well as the FSA’s expansion of markets for FPI goods and services, the bureau retained consultants to “identify the products/services FPI can leverage for sales growth under its new First Step Act authorities . . . the overall output being a strategic roadmap/plan to grow FPI in a commercially sustainable manner that aligns with FPI’s overall mission.”²⁴ FPI’s potential to reduce recidivism remains barely tapped. Several states have refocused their correctional industries to maximize their impact on post-release outcomes, and the time is right for the bureau to do the same.²⁵

The FSA also dictates that the bureau look beyond its own programming and consider programs from other states. Specifically, the statute requires that “the Attorney General shall . . . (2) review available information regarding the effectiveness of [EBRR] programs and productive activities that exist in State-operated prisons throughout the United States.”²⁶ The bureau has also contracted with external research organizations to conduct this review for them. The provider is required to “establish a methodological process that must be approved by the Bureau, to identify [EBRR] correctional programs located in other confinement facilities outside the Bureau. A successful process will establish multiple criteria identifying search methods that shall locate a breadth of mental health, educational, vocational, and other correctional programs outside the Bureau. . . . The contractor shall evaluate a minimum of 25 programs per year.”²⁷) The contractor also assists in evaluating external submissions that the bureau receives from individuals and organizations seeking to have their programs formally adopted nationally.²⁸ The challenge here, however, is that a more pressing problem for the bureau is not a dearth of current programming options but, rather, the lack of capacity (e.g., trained staff, appropriate facilities) to deliver them, to assure program fidelity, and to measure program impact.

It is not known if the outcomes of these research efforts will be made public, but we have been encouraged by what appears to be the bureau’s much greater emphasis on transparency. Regardless, we encourage the DOJ and the bureau to use these findings in compliance with FSA requirements and determine “which [EBRR] programs are the most effective at reducing recidivism, and the type, amount, and intensity of programming that most effectively reduces the risk of recidivism”²⁹ The bureau appears to be abiding by the statute and investing in determining the effectiveness of their current national programs and is open to receiving suggestions for additional programming, as long as it is not duplicative of current programs. As shown below, the bureau is also working to create additional training capacity where it has determined a need.

Building Program Capacity

As noted earlier, the bureau has for many years provided a public-facing list of what it referred to as its “national programs,” but these did not comprise all the bureau’s programming. Traditionally, a lot of programming is left up to individual institutional and warden initiative, and there remains significant variation in program availability, depending upon to which of the 122 institutions an AIC is designated. Under FSA, however, the bureau has continually updated and reorganized what is referred to now as the First Step Act Approved Programs Guide.³⁰ Programs are designated as either EBRRs or PAs, based on the presence of supporting research. While the current version of the guide has rather brief program descriptions, judges, probation officers, and other stakeholders, particularly those involved in sentencing, should be familiar with its offerings. Caution is warranted, however, because capacity for many programs is low due to staffing and, at times, structural constraints.

The bureau has also engaged with other federal government agencies and various organizations to help them develop new programs. Some of these include the following:

• The FSA grant initiative Partners for Reentry Opportunities in Workforce Development, a partnership with the Department of Labor and the USPPS, consists of a three-stage continuum that delivers workforce development assistance to AICs at bureau institutions, in pre-release custody, and on transition to supervised release. Through grant awards to state workforce agencies, the program is intended to improve employment prospects within communities where program participants live.

• In coordination with the Department of Education, and with assistance from the Vera Institute, the bureau is working to have each institution establish agreements with local colleges and universities to more fully leverage Pell grants.

• A standardized evidenced-based recreation/leisure/wellness curriculum has been made available systemwide.

• Comprehensive peer-support/peer recovery training is offered for AICs who have learned to effectively manage their substance use disorder and/or serious mental illness. The objective of the program is to build capacity among the incarcerated to help others better manage their substance use disorder and/or serious mental illness. The program is being integrated into the bureau’s formal apprenticeship, consistent with Department of Labor requirements. ³¹

• Two programs serve as alternatives to placing AICs in restrictive housing, typically referred to as the Special Housing Unit. The first program, titled Pathways, will serve AICs who have continued to use illicit substances while incarcerated. The second program, Aspire, will target even more challenging AICs who are chronically disruptive and/or violent.³²

• A program titled Life Skills was created to provide the seriously mentally ill and perhaps institutionalized AICs a primer on day-to-day activities (e.g., going to the grocery store, using a laundromat).³³

The bureau should continue to develop programs that meet discrete needs. Last, and perhaps the most important aspect of FSA implementation—for judges, probation officers who write PSRs, and other stakeholders to be especially aware of—is the bureau’s deployment of the SPARC-13 system.

Assessing Need

As noted above, the PATTERN score, used to determine an AIC’s risk of post-release recidivism (e.g., minimum, low, moderate, and high), plays a key role in determining eligibility to receive FSA credits. Supporting this process, SPARC-13 is an amalgamation of different assessment tools and approaches of the thirteen distinct factors. The scores and/or conclusions are then used to refer AICs to specific programs, if available. As shown in table 1, the bureau relies on some specific, nonproprietary tools to assess different factors. AICs are required to complete several of these through the bureau’s TRULINCS system. For other topics (e.g., substance use disorder, employment), bureau staff draw their conclusions primarily from the PSR. While judges and USPPS staff are all aware of the bureau’s need for the PSR, in our view, many underestimate the bureau’s reliance on it and its implications for those who have been sentenced. Officers who write PSRs overwhelmingly consider the judge (as well as defense counsel and prosecutor) to be the primary consumers of their work product. While we have more to learn about the various assessment tools the bureau uses, what we find most compelling is how the bureau appears, in criminogenic needs, to be following the science as its staff comprehensively assess each individual before prescribing programming. According to the 2021 SPARC-13 description:

Table 1 provides brief descriptions of how the bureau currently assesses the criminogenic needs and responsivity factors that comprise SPARC-13, which then inform program referrals. It is worth considering if such individualized information would be of assistance to a sentencing judge, a U.S. probation officer, a defense attorney, or, we dare say, even an assistant U.S. attorney.

Considering table 1, the bureau is assessing, in various fashions, each of what it identifies as an AIC’s individualized needs. The assessment of the more familiar criminogenic needs (e.g., employment, substance use disorder) relies exclusively on the PSR, areas where the addition of validated, assessment tools could surely enhance a case manager’s non-clinical judgment. For education needs, bureau staff rely on the PSR as well as educational assessment tools, and for mental health (a responsivity factor), bureau Psychology staff conduct a structured interview. For other needs, the bureau relies on several simple non-proprietary assessment tools (e.g., for Anger, Cognitions, Anti-Social Peers, Family/Parenting, Trauma) which the AICs complete themselves online. All these assessments are intended to assist bureau case managers and other staff as they develop case plans for each AIC, wherein needed FSA programming is identified. We have two primary concerns. First, given how heavily the bureau relies on the PSR content to determine who gets what programming (much of which is in very limited supply), there needs to be greater awareness of this assessment process among officers preparing PSRs as well as among judges and other stakeholders. Second, judges currently impose sentences with little to no empirical knowledge provided about the defendants regarding several factors (e.g., criminal thinking, criminal associates, anger/hostility) that the bureau appropriately deems essential. These both deserve further attention, but before we more fully explore the implications of the bureau’s SPARC-13 assessments for USPPS, we briefly review FSA’s impact on U.S. Probation and the judiciary to date.

FSA’s Impact on USPPS and the Judiciary

Compared to its impact on the bureau, the FSA’s impact on the USPPS and the judiciary has been quite modest. While the FSA was met with a mix of trepidation and optimism,³⁵ the statute led to short-lived operational disruptions and opportunities. Fortunately, as described earlier, the USPPS, with support of the judiciary, embarked on the EBP journey nearly twenty years ago and continues to make its way. But the FSA did have some rather immediate operational impact. Some of the major changes officers and the court encountered included the following:

• Good-conduct time adjustment: The bureau modified regulations on Good Conduct Time credit to conform with legislative changes under the FSA, which resulted in recalculation of the release date for all. This led to a one-time surge in releases onto their term of supervised release, with those who had served the longest periods in custody (and arguably the most institutionalized) receiving the greatest cumulative reduction. This adjustment is now factored into the bureau’s time calculations.

• Retroactive sentencing modifications: The FSA addressed disparities in penalties for crack versus powder cocaine offenses that had persisted for several decades. Defendants sentenced before the effective date of the First Sentencing Act (August 3, 2010) and who did not already receive the benefit of the FSA became eligible for a reduction in sentence. This led to a flurry of resentencings across the system.

• Compassionate release: Prior to the FSA, compassionate release motions could be filed only by the bureau. The FSA, however, gave the courts the ability to consider compassionate release requests filed directly by people serving federal sentences. The law allowed courts to reduce an incarcerated person’s sentence if an “extraordinary and compelling reason” existed; however, at the time, there was limited guidance in how the judges were to proceed. Many within the USPPS worked feverishly to access the bureau’s medical records that would allow a fully informed decision. The COVID-19 pandemic and vulnerability of incarcerated populations led to an unprecedented level of complexity and uncertainty.

• Elderly home confinement: The FSA reestablished and expanded a pilot program under the Second Chance Act to place elderly and terminally ill inmates in home confinement, many of whom were supervised by the USPPS. The pilot allowed the bureau to release some or all eligible elderly or terminally ill AICs from bureau facilities to home detention, upon written request from the bureau staff, or an eligible elderly or terminally ill AIC. The pilot provided the bureau with a significant opportunity to address its aging population problem by releasing eligible aging and/or ill individuals. During the pilot period, approximately 1,220 AICs were placed on home confinement. Recidivism was extremely low. The pilot expired in September 2023. While not an FSA provision, the CARES Act (2020) and the thousands successfully released to the community on home confinement even more greatly demonstrated the soundness of this strategy.

• Dynamic release dates: The advent of Federal Time Credits (FTCs) disrupted what were previously fixed release dates in the federal system. The FSA authorizes up to 365 days of credits to be applied toward early release to supervised release or earlier placement in pre-release custody. While the application of FTCs has become more routine over time, FTCs may be applied to AICs’ sentences at any time. The corollary impact of FTC application is a truncated period of reentry planning and, in some cases, altogether foregoing planning due to the AIC’s immediate release from [bureau] custody.

Some of these provisions, particularly compassionate release and elderly home confinement, demonstrated new possibilities to reduce the scale of federal incarceration compassionately and prudently in a cost-effective manner. Those with a more retributivist perspective may perceive such efforts as something of a miscarriage of justice; however, we see them as models for a more enlightened and effective approach to addressing the excesses in the federal system. More recently, the USSC adopted a compassionate release amendment that provides judges with guidance that had been sorely lacking.³⁶

Now six years after enactment, the FSA seems to have had a limited impact on the USPPS and the courts; the major challenges that confronted probation officers and judges have largely waned. But while the bureau remains consumed in meeting FSA demands, the USPPS has continued its efforts to improve federal reentry. Within the AOUSC, the PPSO has maintained a Reentry Working Group that continues its work to promote a comprehensive approach to federal reentry.³⁷ Most recently, the PPSO and the Reentry Working Group have modestly increased its direct engagement with the bureau’s central office staff. These efforts include drafting a reentry readiness article for the bureau’s AIC Reentry Newsletter” hosting an information session with the bureau’s Correctional Programs Branch, which oversees elements of the FSA and institutional operations, and ongoing engagement with the bureau’s Women and Special Populations Branch to develop a gender-responsive model of reentry that mitigates the risk of domestic and sexual violence in furtherance of the Violence Against Women Act (1994).

As the training arm of the federal judiciary, the Federal Judicial Center (FJC) is similarly raising awareness and sharing information about the challenges and opportunities of federal reentry. Two FJC projects in particular warrant mention. First, since 2016 the FJC has collaborated with the Center for Law, Brain, and Behavior to offer a workshop on science-informed decision making focusing on understanding substance use disorder. As described in a 2021 article in the Federal Sentencing Reporter, the workshops provide

In the article, the authors describe how United States v. Booker “created new space for judicial discretion in the application of the Federal Sentencing Guidelines.” While the Guidelines have remained static since enactment in 1987, the “neurobiology of addiction, trauma, and adolescent neurodevelopment has advanced. The social science around other drivers of criminal behavior, such as criminal thinking, has similarly improved, as has the efficacy of rehabilitative interventions.” The authors conclude:

Second, in August 2023, the FJC hosted a pre-sentence conference in which, for perhaps the first time, the probation line officers who primarily do pre-sentence work from all ninety-four districts were given the opportunity to participate in a national training that focused on their role at sentencing, but this did not involve teaching them how to apply or calculate the Guidelines. The program focused on reentry-related issues and pushed officers to think in a new way about their role in reentry, which included a reentry simulation that can make real the frustration that people face upon release from federal custody. The conference provided guided opportunities for officers to think deeply about the many different non-Guidelines facets of their role in the system and how that role has and has not evolved through time in ways that might parallel the evolution of the work in other roles in probation (e.g., changes in pretrial and postconviction supervision and the evolution of core correctional practices). Finally, the conference included teaching officers about the purposes of sentencing and the importance of a full analysis of all the 18 U.S.C. §3553a factors.

The initiatives above demonstrate that there is interest, at least among some within USPPS and the federal judiciary, in increasing engagement with the bureau, to incorporate a science-based understanding of criminal behavior, and to think beyond the confines of the Guidelines. We share these sentiments and concur that, as noted above, “when sentencing is grounded in empirical findings, there should be less concern about disparity in sentencing on the part of judicial actors.” What else might be done to advance and enhance the federal sentencing process?

The Art of the Possible

The bureau, amid a swirl of other major challenges, has worked diligently to fulfill the mandates of the FSA. While implementation problems and concomitant criticism persist, the bureau has taken much-needed steps to assess the efficacy of their current programs, to build rehabilitative capacity where needed, and to enhance its assessment of individual needs and responsivity factors for all of those in its care. Publicly sharing the results of the various evaluations would fulfill the bureau’s commitment to increase transparency. Increasing the use of validated assessment tools (as opposed to unstructured professional judgement) in some need areas (e.g., substance use disorder) would improve case managers’ ability to make accurate program referrals. Nevertheless, the bureau’s effort is noteworthy, and others within the federal criminal justice system need to be aware of the progress. There remains, however, significant gaps in the working relationship between the judiciary and the bureau.

While a handful of USPPS offices have robust relationships with the bureau facilities in or near their districts, a combination of resource constraints, competing priorities, and institutional boundaries has limited collaboration even as the significant needs of the shared population come into clearer view. This has not gone unnoticed. A recent DOJ report noted that “over the last few decades, the number of individuals on supervision have increased dramatically, while resources for probation offices have not.”⁴⁰ Consider for example the limited growth of the Federal Location Monitoring program, wherein highly trained U.S. probation officers, rather than contracted, mostly for-profit residential reentry center staff, monitor AICs on pre-release status at half the cost to the bureau. Despite AOUSC funding incentives, the program has gained very limited traction at the district level.⁴¹ The culture of the court and, perhaps just as important, the individual probation office’s leadership’s prioritization of reentry (e.g., Second Chance Act spending) play key roles in improving outcomes and strengthening the continuity of operations between the bureau and USPPS. There remains room for improvement, particularly increased and dedicated funding to U.S. Probation to provide reentry services to those under its supervision as authorized under 18 U.S.C. 3672.

The bureau is clearly undergoing a transformation, as required by the FSA. Collectively, the USPPS, the judiciary, and the bureau could collaborate more and cocreate a shared and necessary culture change in how we perceive the need and purpose of rehabilitation. This includes a better understanding of the significant role those released can play in both becoming a productive citizen and revitalizing a community. Pre-release planning and reentry have all too often been limited to a check-the-box approach by which an officer conducts a home visit to verify home address, requires an individual to seek and maintain employment, refers to counseling, and reminds the individual to avoid negative associates. A new FSA culture and the next steps should encourage a supervision officer to move beyond perfunctory supervision and assist the recently released in (1) locating a home that is stable and conducive to productivity, positive relationships, and a sense of value; (2) acquiring in-demand vocational skills and securing and maintaining living-wage employment, which includes opportunities for career advancement; (3) engaging proactively in effective treatment, with an emphasis on CBT interventions for those at higher risk; (4) seeking publicly available resources and benefits, as well as navigating various civil disabilities; and (5) locating and collaborating with prosocial networks in the community. Almost all who are releasing, at least those who are at higher risk of recidivism, need this full scale of assistance as they take a first, second, and third step in becoming productive, law-abiding, members of free society.

The introduction of the bipartisan Safer Supervision Act (H.R. 5008) (2023) is a welcome sign. While the bill is imperfectly informed, it has several very positive aspects. First, it calls for courts to “make an individualized assessment” as to whether a term of supervised release should be imposed and “the appropriate length and conditions of such a term.” This is intended to provide a “better tailoring when and how supervised release is imposed” The bill also proposes a presumption of release from supervision, typically referred to as early termination.⁴² This aims to incentivize efforts by those who release to engage in programming and to comply with the conditions of supervision, much as Congress intended for those in bureau custody with passage of the FSA. Additionally, the act directs the U.S. comptroller general to closely examine “the process for transition[ing] of an individual from the custody of the bureau to U.S. Probation” and calls for a “review of federal programs or funding resources that aim to assist individuals from the custody of the Bureau of Prisons with reentry.” This is much overdue, as current funding is wholly insufficient to the need and is not evenly distributed nationally.⁴³ As noted by the draft bill, there is tremendous need to “better assist defendants in the pursuit of rehabilitation and reintegration, to the benefit of themselves, victims and the community.” Lastly, it calls on the AOUSC and the Office of Personnel and Management (OPM) to consider whether U.S. probation officers should be eligible for law enforcement availability pay.⁴⁴ There cannot be, in our view, too much emphasis in terms of reentry resources and policy innovation. We hope the USPPS and the bureau will enhance their collaboration at the national level to help improve outcomes. Indeed, the Memorandum of Understanding between the bureau and U.S. Probation has not been modified in thirty years, years in which major advances have been made in recidivism reduction and many state governments have established highly integrated reentry systems that seamlessly span custodial and community-based corrections. However, even absent interbranch collaboration, the pre-sentence domain presents an opportunity for the USPPS and judiciary to drive innovation.

There is room for improvement in how the bureau currently assesses some of the SPARC-13 factors described above, such as the addition of even more formal assessment tools in areas where they are absent. As noted above, bureau designators and case managers rely very heavily on what officers include in the PSR. In case managers’ fashioning a case plan for FSA programming, however, the painstakingly calculated Guidelines, frankly, are of limited importance. Other personal history details are far more important (e.g., verification of high school education, history of substance use disorder). But that leads us to a question: If the bureau, in fulfilling FSA requirements and in following the science of EBP, provides such individualized, detailed assessment data to plan institutionally based programming, should not judicial officers have at least a similar amount of information as they assess the factors listed in 18 U.S.C. 3553? If the answer is yes, should not the USPPS and judges augment current pre-sentence practices with empirically determined details such as trauma history, literacy levels, and criminal thinking patterns thereby individualizing their assessments? Such information, in most cases, would be relevant for the custody/noncustody question, custodial sentence length, and particularly the conditions of supervision, as called for under the draft Safer Supervision Act. The defendants who face federal sentencing every day come before the court with a tremendous breadth of deficits, many of which played a role, either directly or indirectly, in their individual harmful behavior. In a post-Booker era, a federal judge at sentencing should be at least as well informed as a GS-7 bureau case manager.

We are aware of at least two federal courts that have recently required the USPPS to include the results of the Adverse Childhood Experience (ACE) Questionnaire for Adults into their PSRs. Additionally, at least one U.S. probation office previously included the results of the O’NET formal vocational aptitude test into its PSR.⁴⁵ Although many of the obstacles to a seamless continuity of care in reentry will not be overcome absent legislation, we contend that the USPPS and judges could incorporate some of the assessment information required by the bureau into the PSR itself. Additionally, other validated assessment tools might be more accurate than some of the subjective, qualitative determinations made by case managers drawing from the PSR. Current, available technology could be leveraged to quickly provide unprecedented insights about a defendant and greatly inform a judge as they consider the 18 U.S.C. §3553 factors. Such innovations seem to be left to each court and, to our understanding, are limited by neither the judicial conference nor the USSC. Looking beyond traditional guideline calculations can better inform the court at sentencing, particularly regarding variances and departures. We hope that pre-sentence procedures might evolve to the benefit of the court, the bureau, and most important, the defendants being sentenced. Why not try our hands at the “art of the possible”?

Notes