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Earlier this month, four members of the House of Representatives introduced what they called the “Recidivism Risk Reduction Act of 2015.” To track the bill, follow H.R. 759. Because of the bill’s length, this post glosses over some of its minor points in order to give a bird’s-eye view of its provisions.

The Congressmen’s concept, in general, is that the Attorney General (hereafter AG, and with help from certain other directors of criminal-justice-related Government offices) will do the necessary background research and will create a system to be called the “Post-Sentencing Risk and Needs Assessment System.” The bill’s authors expect some existing assessment tools and programs will be incorporated into this system. The AG will have 6 months to develop this system and will then have the responsibility to train Bureau of Prisons (BOP) staff to use it. The system is supposed to be thoroughly validated by scientific evidence, as the bill uses the terms “evidence-based,” “best practices,” “effective and efficient,” and “best available statistical and empirical evidence” to characterize the AG’s work in developing the system and periodically auditing and updating the system. The AG is to give a detailed annual report to Congress on how well the system is working.

The overall framework these Congressmen envision works as follows:

  • All prisoners will be assessed and classified as having a low, moderate, or high risk of recidivism. (The bill sets the goal that all prisoners have been assessed & categorized within a year after this Act is enacted.)

  • BOP staff will use the system’s tools to place prisoners in recidivism reduction programs and productive activities that fit their situation.

    • Recidivism reduction programs include things like vocational training, academic classes, cognitive behavioral programs, drug or alcohol abuse recovery programs, mentoring, etc.
    • Productive activities include anything that’s designed to keep inmates’ recidivism risk low.

  • The bill specifies, “All prisoners, even those classified as having a low or no risk of recidivating, shall participate in recidivism reduction programs or productive activities throughout their entire term of incarceration.” (Unlike last year’s version of this bill, those with life sentences are not excluded.)

  • Prisoners will be reassessed periodically to check whether their risk level has changed.

  • Prisoners get incentives for successful participation. The bill specifies two different sorts of incentives: (a) extra phone or visitation time or (b) time credits (see below).

  • The bill says $50 million per fiscal year will be appropriated for this system for the first five years, and after that, the monies these recidivism reduction programs save in prison costs will be invested in maintaining this system.

Under the system introduced by this bill, here is how time credits will work: prisoners judged to have a low risk of recidivism will earn 30 days of time credits for each month they successfully participate in recidivism reduction programs or productive activities. Similarly, prisoners classified as moderate risk earn 15 days of time credits per month, and those classified as high risk earn 8 days of time credits per month.

Regarding these time credits, this bill would adjust current law so that prisoners can be moved from prisons into alternative confinement sooner. Current law is that federal prisoners must complete at least 85% of their sentence (any time credits cannot reduce their sentence below that point), but a prisoner can spend the last 6 months of his (or her) sentence in home confinement or the last 12 months in a community correctional facility. But under this bill, if a prisoner who is classified as having a low risk of recidivism meets the following criteria:

  • He (or she) earns time credits equal to the remainder of his sentence,
  • The Warden approves,
  • The Judge in the district where the prisoner was sentenced does not deny the Warden’s recommendation, and
  • the prisoner is able to stay in a residence suitable for home confinement,

then the prisoner can be released to home confinement even if he has not served at least 85% of his sentence.

However, there is a long list of convictions that would prevent a prisoner from earning any time credits. Since 47 exceptions are listed, we will just list the offenses that are more likely to affect our readers and mention the rest of the list in only general terms.

  • Those convicted of distributing a controlled substance if (and only if) death or serious bodily injury resulted, under 21 U.S.C. § 841(b)(1)(A),(B), or (C);
  • Those convicted of anything under 18 U.S.C. § 924(e), that is, someone convicted under § 922(g) (sometimes referred to as “felon in possession [of a firearm]”) and who has 3 prior convictions “for a violent felony or a serious drug offense”;
  • Those with three or more convictions for any drug trafficking offense or a crime of violence (defined as any offense that involves the use (attempted or threatened) of force or any felony which, by its nature, involves a substantial risk of physical force [see 18 U.S.C. § 3156(a)(4) for the legal definition]);
  • Convictions for murder, kidnapping, or violent acts in which someone is killed (e.g., carjacking or bank robbery. Killing someone while robbing DEA agents of a controlled substance is also specifically included);
  • Convictions for trafficking in people or child porn or sexually exploiting children;
  • Convictions for terrorism, helping terrorists, or doing things that terrorists tend to do like blowing up infrastructure or threatening or killing high-ranking Government officials;
  • Convictions for other threats to the Government like espionage, sabotage, torture, treason, or messing around with nuclear materials.

Here is the full text of the bill as it was introduced in the House. The full list of exceptions to time credits is on pages 11-19.

The chances of this bill being enacted are relatively small. If it does become law, it will probably not be in its current form since it could be amended by the House Judiciary Committee or the full House, and it also needs to pass through the Senate.

At this stage, we will comment that although this bill contains some good ideas for reducing the prison population, its expectations for the AG and for BOP staff border on the unrealistic. The notion that the AG’s office will have this system developed in 6 months, and then that all prisoners’ recidivism risk will be assessed in another 6 months, sounds unfeasible. Additionally, not only does this bill allocate a lot more work to BOP staff, and not only does it give each prison Warden great discretion over when prisoners are to be sent to prerelease custody, but it also gives the Warden the task of checking each prisoner’s earned time to see when they are eligible. Conceivably, under this bill, a defendant who is sentenced to 10 years in prison and has a low risk of recidivism will participate in recidivism reduction programs and productive activities the whole time he is in prison, earn 30 days of credit per month, and about the 5-year mark be eligible for prerelease custody until he has served 8.5 years of their sentence, as current law says they must. But will Wardens actually find the time to approve all these prisoners for prerelease custody? And how will the prisoners bring up their grievances if they do not?

Other sentencing reform bills have been introduced. We will be posting updates on them too. Stay tuned!

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