The Consequences of an Incompetent First Step Act Rollout

    Timothy Walker, 52, enjoys cooking and used to own a food truck in Philadelphia that sold sandwiches, hot dogs, and juices, and employed his family members.

    That was before he, a Black man, was sentenced to 40 years in federal prison at the age of 30 in 1997, or about a decade after Congress established the 100:1 crack sentencing disparity through the Anti-Drug Abuse Acts of 1986 and 1988. He was convicted of “conspiracy to possess with intent to distribute [powder] cocaine,” charges derived from a hotel room sting operation. 

    Even though he still has, with reductions, around 10 years left on his sentence, Walker could soon be much closer to being able to pursue the food work that he so enjoys. Because of the First Step Act, a 2018 criminal justice reform that effectively slims his sentence, he could be eligible for transfer to a “camp,” or a minimum-security prison that is “work- and program-oriented,” as early as November. 

    But at present, that’s unlikely to come to pass due to the Federal Bureau of Prisons “incompetence,” as Walker explained to Filter on August 27 through a corrections email platform. A Bureau of Prison (BOP) spokesperson declined to comment on the alleged “incompetence.”

    BOP internal emails and administrative documents obtained by Filter reveal that people like Timothy Walker and Sam*, an anonymous incarcerated white 40-year-old man—both of whom are confined to Federal Correctional Institution Butner in North Carolina—have a long wait ahead of them. 

    At stake is a potential failure, attributable to administrative inadequacy, to apply a much-anticipated reform to Walker, Sam and 170,000 other federal prisoners until over a year after it was supposed to be implemented in July 2019. 

     

    The Promises of the First Step Act

    Over two thousand incarcerated people, most of whom were Black, were released from federal prison on July 19, 2019the day on which the BOP was legally required to implement the sentence reductions imposed by the First Step Act. The criminal justice reform bill, signed by President Donald Trump in December 2019, revised draconian laws spawned by the “crack era” drug panic. 

    The first wave of sentence reductions are, in part, a product of the First Step Act’s tweak to how the BOP calculated Good Conduct Time (GCT)⁠—a program introduced by the 1994 crime bill that permits federal prisoners to earn up to 54 days off their sentence per year if they display “exemplary compliance with … institutional disciplinary regulations.” 

    Before the First Step Act, the BOP was performing an “awkward reading” of GCT, as the ACLU, the National Association of Criminal Defense Lawyers and others described it in a 2010 amicus brief, that “improperly disregarded” the 54 days Congress ascribed. Instead, the BOP was using a “pages-long, obscure formula” that ended up only allowing federal prisoners to earn up to 47 days off their sentences per year. 

    The First Step Act fixed this misinterpretation by clarifying that GCT should be credited for the sentence imposed, instead of sentence time served, as the BOP had previously been doing. In effect, the additional seven annual days, making 54 in total, to be cut from prisoners’ sentences are now clearly mandated, as the original statute intended.

    Seven extra days off a sentence per year may not sound like much. But it can add up quickly when you’re serving a sentence like Walker’s, which in turn accelerates their departure from higher-security prisons that, according to Walker and Sam, dehumanize incarcerated people and offer fewer resources than lower-security facilities. 

     

    Waiting to Be “Treated Like a Human”

    Walker’s original projected release date, as calculated by the BOP’s old GCT crediting process, was April 30, 2030a date that is very close to Sam’s. But with the First Step Act, it would be moved to around the last week of July 2029. 

    That’s less than a decade away—which is important. Prisoners with low security classifications, like Walker and Sam, are eligible for transfer to minimum-security camps when they have less than 10 years left on their sentences. 

    If BOP completed his recalculation soon, Walker believes that he could be transferred, or at least begin the process, in November, the month of his next custody review.

    Being a “camper” offers “dormitory housing, a relatively low staff-to-inmate ratio, and limited or no perimeter fencing,” according to the BOP website

    For Walker, one favorable feature of camps, or at least what he knows of them, is the availability of “outdoor picnic spaces,” which would mean “far better visiting experiences” for him and his family, with whom he retains close relationships. He could also be eligible for unescorted furloughs into the community, which he finds especially important in case, “heaven forbid, a tragedy or emergency occurs” to a family member, which is a very real possibility given the precarious health of his daughter.

    Walker (far left, back row) with family members; courtesy of Tyree Walker

     

    Closer to his release date, Walker could become eligible for furloughs in order to seek employment. And his employment prospects would greatly increase if he were to be able to obtain a Commercial Driver’s License, which is promoted at some camps.

    In addition to these resources, “the most important feature of a minimum security housing assignment,” wrote Sam, is “getting closer to being treated like a human.” Both Sam and Walker are under the impression that people at camps are afforded more respect by correctional officers. That’s huge, for them, given the hostility they’ve seen in a higher-security facility.

    “I watched a staffer threaten a man with sanctions if he helped a friend, whose hands did not work, log in to the institutional computer system and renew his prescriptions,” wrote Sam. “Over time, the interactions and deprecations twist the mind of a prisoner in ways that make interacting in the community difficult.” 

    “Those are behaviors we would encourage and praise anywhere else,” wrote Sam. He’s heard that at a camp, “Life is more like what life at home will be.” 

    For him, “escaping the twisted culture of a ‘security’ environment staffed by those whose profession is imposition of force […] is significant to me.”

    Walker agrees: “After more than 25 years of being a number or an ‘inmate’ I know I’d feel a fresh breeze blowing if I lived in an environment where I felt like I received the respect I, and all human beings, deserve.”

     

    Bureau of Prisons’ “Problematic” Rollout

    What stands between Walker being moved to a place that “treats you as a human being” seems to be the administrative “incompetence” of the BOP—namely its apparent inability to promptly perform basic arithmetic on a large scale. 

    As of September 16almost two months after the July 19 roll-out datethe BOP’s Designations and Sentence Computation Center (DSCC), which conducts the GCT recalculations, had made First Step Act updates only for incarcerated people with previously projected release dates that fell before October 2020, according to an email sent by a BOP computation technician and reviewed by Filter

    The computation technician terminated a phone call initiated by Filter on October 10 when asked for comment regarding her experience with the process of GCT recalculations. 

    If it’s taken nine months to complete calculations for sentences projected to end in a year, how long will it take for the BOP to calculate sentences, like Walker’s, that are projected for 2030? 

    In response to an August 22 administrative remedy request for recalculation filed by Sam, the BOP gave no clear date for when he could expect an updated GCT calculation, only explaining their prioritization of projected release dates and stating that “there may be some variance in the speed with each DSCC team completes the recalculations for the inmates assigned to them.” They stated that “this process may take up to a year.” 

    Numerous BOP officials have given vague explanations to Walker and Sam, as well as Filter. In response to Walker’s initial request for First Step Act-compliant GCT recalculation, the warden of FCI Butner wrote that “this law is complex and requires the BOP to implement a number of changes.” When Filter asked a similar question, a BOP spokesperson also described the process as “complex” due to the “various federal statutes and BOP policy,” like the First Step Act and Sentence Computation Manuals, with which recalculations must be “carried out in accordance.”  

    Walker suggests that the way BOP is handling GCT computations could be indicative of its ability—or inability—to adequately perform its duties. “Is the BOP incapable of writing a software program that would speedily recalculate every eligible prisoner’s new GCT credits?” Walker asked the warden in his September 26 administrative appeal. 

    Walker holding his high school diploma; courtesy of Tyree Walker

     

    The GCT computations are being “performed via automation,” said the BOP spokesperson, though staff intervention is often needed. “The interplay of multiple pertinent statutory and policy provisions must be considered in each case, warranting review by staff.”

    But one advocate suggested that BOP’s computers are unprepared for the task. The BOP’s information technology systems are “dinosaurs,” Kara Gotsch, the director of strategic initiatives for The Sentencing Project, told Filter, citing explanations she’s heard from BOP staffers. Gotsch said that even this description “is generous,” adding that “it’s like they don’t have the right kind of computer” to perform the recalculations in time. 

    The BOP spokesperson denied this claim, calling it “speculation based on hearsay,” and added that “the computers and technology utilized by our staff are not outdated and incompetent. They use commercially-available and fully-supported technology.”  

    Despite the prolonged suffering of prisoners awaiting release or transfer dates to which they are legally entitled, it is doubtful that they have any legal remedy. The BOP is not technically breaking any laws, said Gotsch. The subagency has the discretion to decide how it will proceed with processing GCT computations. But that doesn’t mean what’s happening is ethically acceptable. The “exceedingly slow” computation process is “very problematic,” said Gotsch, when it’s “impacting housing classifications and opportunities to transfer to more desirable institutions.”

    “Am I surprised by BOP’s inefficiencies?” she asked. “Sadly, no.” 

    Walker has also come to expect the failures of the BOP to efficiently serve the people it locks up. In a September 3 corrections email, he captured the routine inadequacies of the institution that has caged him for decades: “da wheels of justice turns slowly for da poor w no voice.” 

     

    Header photograph of Walker (second from right) with his three children in 2004; courtesy of Tyree Walker

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