Who should oversee implementing the First Step Act?

During a Nov. 19 Senate Judiciary Committee hearing, committee Chairman Lindsey Graham (R-S.C.) asked Bureau of Prisons (BOP) Director Kathleen Hawk Sawyer: How does the First Step Act differ from parole, and should the federal government reinstate parole? With respect, the answers are: There’s no real difference, and it already has. The issue that Sen. Graham implicitly raised is, who should run parole?

The groundbreaking First Step Act, enacted last December, authorizes early release of federal prisoners who have worked to reform themselves and are deemed low-risk. The legislation requires BOP to perform a needs assessment on eligible prisoners and recommend programming for each. The evidence-based programs are designed to reduce offenders’ risk of recidivism — that is, of returning to a life of crime — and increase their chances of successfully re-entering society. Low-risk offenders who complete their programs are eligible for conditional early release (“home confinement”).

This is a reboot of parole. Before parole was abolished in the federal system, effective 1987, the U.S. Parole Commission used to evaluate new prisoners, informally recommend programming such as drug treatment, and set tentative release dates. As the proposed release date approached, the Parole Commission would re-evaluate the offenders in light of considerations, including whether they had completed recommended programming. If it decided to release the prisoner, it would set release conditions. 

A few years ago, an aide to one of the Senate co-sponsors of the First Step Act acknowledged to me that the risk-reduction/early release provisions are effectively parole by another name — albeit a new, improved version incorporating evidence-based practices developed during the intervening years.

To implement the act, the Department of Justice (DOJ) released a new risk-assessment tool (PATTERN) last July. Unfortunately, as Sawyer admitted, BOP has yet to complete its needs-assessment tool.

That could be because BOP is undermanned, as Sawyer testified. Recent coverage in The Hill has suggested the problem was that elements within DOJ are trying to undermine the act. Or, the problem could be that deciding when to release prisoners just isn’t what BOP and DOJ are institutionally designed to do.

Congress discovered a similar problem after it first authorized parole in 1910. Parole was granted/denied at each federal prison by a board consisting of that prison’s warden, its doctor, and a Washington-based prison superintendent. 

The system didn’t work very well, likely because prison wardens and superintendents were more focused on keeping prisoners in than on letting them out. In 1930, Congress established a Board of Parole separate from the prison system. It, and its successor Parole Commission, oversaw parole until 1987.

Organizations are designed to serve discrete purposes, and if well-tailored to those purposes are more likely to achieve their aims. When overloaded with too many tasks, or assigned somewhat contradictory goals, they are less likely to succeed.

BOP’s basic mission is “to protect society by confining offenders.” Without a doubt, many BOP employees are sincerely working to comply with the act. Nevertheless, deciding when and under what conditions to release offenders isn’t part of BOP’s mission.

If Congress wants the act’s release provisions implemented effectively, it should assign responsibility to an organization whose mission is consistent with that task. 

A revamped Parole Commission is one option. A rump Parole Commission still exists — it oversees release of prisoners sentenced for crimes committed before November 1987, and sanctions parole violations by that same population. It is naturally much smaller than it was when it oversaw parole for the entire federal prison population, but it could scale up. To assist in that process, it could be given permission temporarily to rehire retired staff, just as Sawyer mentioned BOP is now doing. Former Parole Commission staffers have a wealth of institutional memory and experience determining what programming offenders need to increase their chances for successful re-entry, as well as weighing the risks of releasing them.

Reviving the remnant Parole Commission is not the only way to implement the First Step Act effectively. There are other options. For example, Congress might create an agency for the purpose. But, whatever Congress does or doesn’t do, history suggests that giving BOP the keys while charging it to bar the door is unlikely to produce optimal results.

Johanna Markind is an attorney and writer in Philadelphia. She was an assistant general counsel with the United States Parole Commission from 2009 to 2014.