Many people believe that some individuals should be excluded from certain benefits or rights after being convicted of a crime. This is especially true when the crime is considered to be violent or perceived as particularly repugnant (such as a sex offense). For example, one of the most significant benefits of the First Step Act of 2018 is the ability of eligible individuals to earn credits toward early release to a community setting. However, the act includes a long list of exclusions (68 to be exact), mostly based on the nature of a person’s crime.
I am one of those excluded individuals. And I am challenging those exclusions in court.
Here’s why they are a mistake: (1) Programming such as cognitive behavioral therapy has been shown to be most effective for individuals who pose the highest risk of recidivism, including those convicted of violent offenses. (2) Given the BOP’s limited resources, incentivizing participation only by people with nonviolent charges results in less programming for others. (3) By creating a politically based list of excluded individuals, Congress missed an opportunity to focus on data-driven reforms to reduce crime and risks to public safety.
Because prisons are unattractive workplaces (another topic worth discussion!), staff shortages pose a constant challenge, and programming is the first function to suffer. Thus, adults in custody (AICs) are left with few options to occupy their time, leading to an increase in violence and unrest. Yet the BOP is required to favor those with eligible charges when allocating scarce programming resources—all while managing what is arguably a more dangerous population prevented from reaping the full benefits of rehabilitative programming.
The worst should be first
In contrast, I believe that society should prioritize the rehabilitation of people who committed the “worst” offenses. The broader community is safer when more people take evidence-based recidivism reduction (EBRR) programs. Incentives are needed to push more people into these programs, because most individuals in prison – an emasculating experience – need “prompting” to begin the hard work of change.” Why? It takes a while, after entering prison, to recognize and accept the harm they caused and their responsibility for it. And yes, offering incentives often means that many inmates initially take programs for the wrong reasons – to get out earlier (not because they know they need to change).
However, the beauty of “evidence-based recidivism reduction” is that almost all these individuals change their way of thinking as they progress through the programs. For instance, I originally enrolled in a paralegal correspondence course to find a way out of my situation. And it gave me that, along with the ability to help others obtain shorter sentences. But it also helped me understand where the government is coming from when it outlaws something, and how the history of the body of law has shaped our current justice system. Now I understand better how to bridge the gap between government agents and their viewpoints and those of us in the carceral situation.
Other inmates who have taken cognitive-development and criminal-thinking courses (BOP-offered EBRRs), and participated in programs like Threshold and RDAP (Residential Drug Abuse Program) have had similar experiences. And here is the kicker: Not one of those individuals actually took these courses to improve themselves; they signed up to get time off. The self-improvement was unexpected and occurred sort of as a byproduct. I guess you could say that instead of “gaming the system,” the system gamed them (but in a good way).
Idle time is the devil’s playground
There’s another reason why these individuals sign up: to ease the boredom that leads to anger and violence. When people are in prison (especially when staff can lock the cell doors), they spend a lot of time in forced idleness. For instance, here at FCI Atlanta, we spend an average of 13 hours a day locked in our cells. (Yes, we have tablets, but other than music, we can only download mostly old, childish movies.)
And when we are let out, if you’re not working or in classes, you spend the majority of the time watching TV. TV isn’t a bad thing (everyone needs time to chill), but when that is all you do, it doesn’t really contribute to reduction of recidivism.
What does all that idle time lead to? Many guys turn to drugs. And drug overdoses are a clear health and safety issue. FCI Atlanta is wild with many types of drugs (as are most prisons that I have been to). I have observed a number of guys become addicted to substances while in prison. There is one guy who was in prison for a simple fraud case on a one-year-and-a-day sentence. He became addicted to meth and bounced between extreme depression and paranoid mania. I blame the forced idleness of prison life.
I was not immune to this “disease.” For the first four or so years of my sentence, looking at the next 15 years in prison, I was angry. I spent most of my time simply playing cards. My day was TV, cards, TV, bed, then do it all again.
That is why I think it is so important to get “the worst” offenders into these classes. And the strongest possible incentive is earlier release from the suffering that prison imposes. In turn, these incentives reduce the enmity toward government harbored by many incarcerated individuals. The result: The prison itself is safer and the population is more manageable. It is, therefore, a win-win when all prisoners are incentivized to participate in programs designed to reduce the likelihood of re-offense.
Yet currently, not only are AICs with excluded charges ineligible to apply time-off credits, they also are frequently pushed to the bottom of the waiting list to even take the programs (since the FSA requires that eligible individuals be registered first).
This is what success looks like
In my case, despite the barriers, I have managed to take multiple EBRR courses. I also worked for UNICOR, the federal prison industry and considered an FSA-eligible activity. (I was already working at UNICOR when the FSA was passed, so was “grandfathered in.”) Via UNICOR, I learned both sewing and management skills – first, by making body armor for the U.S. military, and then, by working as a “second lead” in the sewing/repair department. I also completed college correspondence courses to obtain my paralegal certification (which I obtained by paying my tuition from my UNICOR wages). After I earned this certificate, the education specialist with whom I worked got me into the law library in the Education Department. I was then able to leverage my position to squeeze into courses such as HVAC (from which I would normally have been excluded).
Allowing persons like me to participate in these programs is just plain good policy. In my petition to the court, I claim that the exclusionary portion of the FSA is unconstitutional “on its face” (meaning there is no set of circumstances in which these exclusions would be legal), along with “as applied” specifically to me. My challenge is based on the “irrebuttable presumption” doctrine, which states that laws may not deprive a person of “important interests” (in this case, freedom from the restrictive confines of prison for as long as possible – known as a “liberty interest” in legal terms) without offering a procedure to challenge that exclusion.
Society is safer when those who have committed transgressions are able to re-integrate. This was the philosophy on which the FSA was based, and the philosophy that can lead to a better future.
