The First Step Act-Constitutionalizing Prison Release Policies

In the First Step Act of 2018, Congress directed the Department of Justice (“DOJ” or “the Department”) to develop a tool, subsequently called Prisoner Assessment Tool Targeting Estimated Risk and Needs (“PATTERN”), to make such an algorithmic assessment of recidivism risk based on static factors such as the nature of the underlying offense, prior substance abuse, and education level. Congress determined that inmates, dependent on such recidivism assessment, be permitted to shorten their stay in prison. For instance, by pursuing vocational courses or by electing to take classes in preventing substance abuse, offenders can now earn credits to qualify for early release or to garner other privileges. Moreover, the Act facilitates release for (almost) all offenders by awarding enhanced good time credits. The First Step Act thus links the length of confinement in part to predictions of future crime as in the past, but also attempts to parlay a prison stay into an opportunity to incentivize offenders to make adjustments in their lives to minimize the risk of future dangerousness. A generation after Congress in essence abandoned rehabilitation as a principal goal, rehabilitation once again has become one of the driving forces of our federal criminal justice system. Many have praised the Act for shortening prison stays and reintroducing rehabilitation as a goal of our penal system.

But, commentators to date have not considered that, in revamping criminal justice policies, the First Step Act may have constitutionalized such early release measures. Unlike in most state systems that use algorithms as guidelines, the Act dictates that PATTERN alone determines eligibility for early release—no discretion on the part of prison authorities is involved. Congress’s decision to base eligibility on an algorithm accordingly raises the critical question of whether Due Process requires that individuals be permitted to show that facts not captured by the algorithm demand an adjusted outcome. In addition, by creating a system to encourage offenders to pursue certain opportunities in prison, Congress likely has created an entitlement based on liberty interests protected under the Due Process Clause. The First Step Act tells prisoners that, if they successfully attain certain educational goals, receive psychological counseling, etc., they will be released early. As a consequence, prison authorities will need to ensure that prisoners who complete such programs are released early with only narrowly defined exceptions. Finally, Congress, in light of ex post facto principles, must respect the enhanced good time credit calculation in the Act for individuals who have already committed their offenses.

We conclude that such constitutionalization of release policies, though likely unintended, should prove beneficial in striking an enforceable bargain with offenders: if the offenders take steps to limit the chance of their own future recidivism, they can gain early release. Given the First Step Act’s reintroduction of rehabilitative goals in the federal prison system, the application of these constitutional requirements may further the Act’s purpose in seeking to reduce the likelihood of inmate recidivism prior to reintroduction into society.