The First Step Act, signed by President Trump in 2018, was hailed by Attorney General Merrick Garland as “a critical piece of bipartisan legislation.” Yet, it continues to be controversial in today’s partisan political world.
The nonpartisan Council on Criminal Justice, which I am a member of, and The Sentencing Project recently issued separate reports taking an early look at the act. Each report acknowledges that while there is much more to learn and study, it is at least playing a role in reducing recidivism.
With so little data available, it is easy to make arguments for or against the effectiveness of the First Step Act. One thing that is hard to argue with, however, is its treatment of elderly offenders and the opportunity we have to reduce overcrowded prisons, save taxpayer money and still protect society.
But if Congress does not act soon, this opportunity will fall by the wayside, as this little-known program expires on Saturday.
The First Step Act reauthorized and modified the pilot program for eligible elderly offenders and terminally ill offenders. This section allows offenders who are over 60 years of age, have served two-thirds of their sentence, are not convicted of a crime of violence and do not have a history of escape to be placed on home confinement for the remaining portion of their sentence.
Well-established research shows that older people are substantially less likely to recidivate. In fact, the U.S. Sentencing Commission reported the recidivism rate of people over the age of 50 was less than half that of those under 50. Under the pilot program, only those over 60 are considered, and they can’t have any history of violence, thus making their recidivism rate even lower.
At the same time, the cost of housing older people is becoming astronomical. The average age of people in the Federal Bureau of Prisons (BOP) facilities has increased by 8 percent over the past decade. Approximately 45 percent of offenders have multiple chronic conditions. As people age in prison, the demands on the bureau’s health resources will continue to increase.
The Vera Institute of Justice reported that “The cost of incarcerating older people is double that of housing younger ones, due to health care expenses.” In 2013, the BOP spent approximately 19 percent of its total budget to incarcerate older adults; a number that is surely higher today. People serving time on home confinement see their own doctors (while being monitored electronically) and bear the costs themselves, saving taxpayers millions.
Since the First Step Act was established, very few have been placed into this pilot program. The program was first established in 2008 as part of the Second Chance Act. In this year’s Annual Report to Congress on the First Step Act, the Department of Justice reported that only 1,219 have been placed in the pilot program between its original enactment and this January. Under the act, monthly placements have dwindled to an average of four per month, and a total of only 152 during its first three years.
In comparison, under the CARES Act, BOP placed an average of over 250 people per month on home confinement. This pilot program has not been given a chance to see if it works. It is hard to believe that Congress’s rare bipartisan acts of creating and extending this program were expected to reach so few people. Undoubtedly, it intended this program to move the lowest risk and most costly people to home confinement; and if successful, Congress would consider making it permanent.
Extending the pilot simply makes sense. Its effective use will help the BOP to free up much-needed bed space for the truly violent and higher-risk inmates. It will allow the bureau to focus its limited staffing on dealing with those most in need of programming and security thereby reducing the risk to society. It will also save taxpayers money by greatly reducing BOP’s medical costs.
The SAFER Detention Act, sponsored by Sen. Dick Durbin (D-Ill.), seeks to take this program a step further. This bill would lower eligibility to include nonviolent offenders who have served at least 50 percent (instead of two-thirds) of their sentence. This is not an unreasonable proposal, and recent history demonstrates that this is indeed safe to do.
During the pandemic, under the CARES Act, Attorney General William Barr authorized BOP to move people to home confinement using a set of criteria that included serving at least 50 percent of their sentence. Only 22 of the 13,204 individuals serving their sentence on home confinement since March 2020 were rearrested for a new offense. That is just 0.17 percent, and most of those offenses were for drug-related or other minor crimes. Many of those placed in home confinement were not elderly, so one would expect the rate of elderly recidivism to be even lower. Expanding the elderly pilot to offenders who served 50 percent of their time would save even more taxpayer dollars without creating more risk to society.
Unfortunately, we are running out of time to achieve the savings originally envisioned. Congress has come together twice before to create and extend this critically important program. It is now time to put partisan differences aside and once again act to keep this commonsense program in place.
Hugh Hurwitz held multiple positions with the Federal Bureau of Prisons, including acting director, assistant director for administration and assistant director for reentry services. Currently, he provides consulting services in prison management, reentry and reform, organizational change, and other areas. He is a member of the Council on Criminal Justice.