U.S. Sentencing Commission Materials on the First Step Act, the Act’s Earned Time Credits System, and the PATTERN Risk Assessment System

The First Step Act of 2018 (Public Law 115–391) created a system in which some incarcerated individuals can earn time credits for participating in recidivism reduction programming or productive activities. For some, time credits can later be applied towards early release from secure custody. Eligibility criteria and rules for earning and applying time credits are governed by statute and implemented through BOP program statements and policies. The PATTERN risk assessment system is part of the eligibility criteria.The Commission has published the information below—including an Infographic, endnotes and a glossary explaining the infographic, and a table of offenses excluded from earning earned time credits—to assist in understanding the First Step Act and its current implementation, relying on primary source documents created by other government agencies. It is for informational purposes only and is not intended as legal analysis. The information does not necessarily represent the official position of the Commission, and it should not be considered definitive or comprehensive.The First Step Act sets out statutory criteria to define who is eligible to earn and apply time credits toward early release from secure custody. See generally 18 U.S.C. § 3632(d)(4). Other incentives and rewards may be available to individuals who participate in evidence-based recidivism reduction programs and productive activities. See 18 U.S.C. § 3632(d)(1)–(3).An eligible individual who successfully participates in evidence-based recidivism reduction programming or productive activities shall earn time credits. 18 U.S.C. § 3632(d)(4)(A); see also 18 U.S.C. § 3635(3) & (5) (defining the terms “evidence-based recidivism reduction program” (EBRR) and “productive activity” (PA)).Some individuals are ineligible to earn time credits based on their statute(s) of conviction. See 18 U.S.C. § 3632(d)(4)(D). Generally speaking, these prohibited statutes of conviction involve violent offenses, sex offenses, certain national-security or immigration-related offenses, and some drug offenses. In some instances, a listed offense will exclude an individual only if specific or additional circumstances are present. For example, some of the drug offenses exclude an individual only if the individual received an aggravating role adjustment under the Guidelines Manual. See id. A searchable list of the excluding offenses appears below. The BOP interprets 18 U.S.C. § 3584(c) to prohibit an individual serving multiple sentences from earning time credits if any single offense is a disqualifying offense.Individuals who are the subject of “a final order of removal under any provision of the immigration laws” may earn but not apply time credits toward early release from secure custody. 18 U.S.C. § 3632(d)(4)(E); see also BOP Program Statement 5410.01 CN-2, First Step Act of 2018—Time Credits: Procedures for Implementation of 28 U.S.C. § 3632(d)(4) 13, 17 (Mar. 10, 2023).The BOP calculates the earning of First Step Act time credits “based on the number of 30-day periods in earning status,” with no partial credit awarded. BOP Program Statement 5410.01 CN-2, First Step Act of 2018—Time Credits: Procedures for Implementation of 28 U.S.C. § 3632(d)(4) 10–11 (Mar. 10, 2023).An individual who successfully participates in recommended EBRRs and PAs will typically be in earning status. Successful participation in these programs can include time spent on a waitlist. See 28 C.F.R. § 523.41(c); BOP Program Statement 5410.01 CN-2, First Step Act of 2018—Time Credits: Procedures for Implementation of 28 U.S.C. § 3632(d)(4) 4 (Mar. 10, 2023). While temporary operational or programmatic interruptions authorized by the BOP ordinarily will not affect an eligible individual’s “successful participation” for the purposes of earning time credits, the BOP has identified some interruptions that take individuals out of earning status. See 28 C.F.R. § 523.41(c)(3)–(5); BOP Program Statement 5410.01 CN-2, First Step Act of 2018—Time Credits: Procedures for Implementation of 28 U.S.C. § 3632(d)(4) 4–5 (Mar. 10, 2023).The BOP’s FSA Program Statement identifies circumstances that take an individual out of earning status, many of which are identified in the examples listed below. More specifically, the Program Statement specifies that individuals are excluded based on placement in the Special Housing Unit if they are in disciplinary segregation status (rather than for administrative detention); designation status outside of the institution can include “an outside medical trip or escorted trip, in-transit [status] or [presence] at an in-transit facility, [or] a furlough for the full day”; and a transfer of custody can include a “state or federal writ, transfer to state custody for service of sentence, [or] transfer to another federal agency.” See BOP Program Statement 5410.01 CN-2, First Step Act of 2018—Time Credits: Procedures for Implementation of 28 U.S.C. § 3632(d)(4) 4, 11 (Mar. 10, 2023); see also 28 C.F.R. § 523.41(c)(4).Individuals who refuse or decline to participate in any EBRR programs or structured, curriculum-based PAs recommended based on an identified need, or those who refuse to participate in or complete any portion of the Standardized Prisoner Assessment for Reduction in Criminality (SPARC-13) assessment, are considered to have “opted out.” BOP Program Statement 5410.01 CN-2, First Step Act of 2018—Time Credits: Procedures for Implementation of 28 U.S.C. § 3632(d)(4) 5 (Mar. 10, 2023). Although the BOP does not appear to consider an individual’s refusal to participate in the Inmate Financial Responsibility Program (FRP) to constitute “opting out,” an individual who refuses to participate will not earn time credits. See id. at 11.An individual may move between earning and non-earning status. See, e.g., BOP Program Statement 5410.01 CN-2, First Step Act of 2018—Time Credits: Procedures for Implementation of 28 U.S.C. § 3632(d)(4) 11 (Mar. 10, 2023).All eligible individuals—regardless of PATTERN risk level—“shall earn 10 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.” 18 U.S.C. § 3632(d)(4)(A)(i). Individuals determined by the BOP using the PATTERN tool “to be at a minimum or low risk for recidivating, who, over 2 consecutive assessments, [have] not increased their risk of recidivism, shall earn an additional 5 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.” 18 U.S.C. § 3632(d)(4)(A)(ii). More information about the PATTERN tool and scoring can be found on the BOP’s website.An individual’s PATTERN risk level may increase or decrease over time, and not every program that earns First Step Act time credits will reduce an individual’s PATTERN score, and vice versa. See, e.g., U.S. Dep’t of Just., Fed. Bureau of Prisons, First Step Act Approved Programs Guide (Sept. 2023); U.S. Dep’t of Just., Off. of Just. Programs, Nat’l Inst. of Just., 2022 Review and Revalidation of the First Step Act Risk Assessment Tool, NCJ 305720, 38–39 & nn. a–b (Mar. 2023).Individuals who have been determined under PATTERN “to be a minimum or low risk to recidivate” are eligible to have their earned time credits automatically applied. 18 U.S.C. § 3624(g)(1)(D)(i)(I) & (g)(1)(D)(ii); see also 28 C.F.R. § 523.44(c)–(d); BOP Program Statement 5410.01 CN-2, First Step Act of 2018—Time Credits: Procedures for Implementation of 28 U.S.C. § 3632(d)(4) 14–18 (Mar. 10, 2023).An individual determined under PATTERN to pose a medium or high risk of recidivating must have a petition to be transferred to prerelease custody or supervised release approved by the warden, after the warden’s determination that: (1) the individual would not be a danger to society if transferred to prerelease custody or supervised release; (2) the individual has made a good faith effort to lower his recidivism risk through participation in EBRRs or PAs; and (3) the individual is unlikely to recidivate. 18 U.S.C. 3624(g)(1)(d)(i)(II); 28 C.F.R. § 523.44(c); BOP Program Statement 5410.01 CN-2, First Step Act of 2018—Time Credits: Procedures for Implementation of 28 U.S.C. § 3632(d)(4) 14–18 (Mar. 10, 2023).Individuals demonstrate a good faith effort to lower their recidivism risk by: (1) maintaining clear conduct for at least three years from the date of their request; (2) successfully completing at least one of the BOP’s residential EBRR programs recommended based on an identified need area within the past five years, if any have been assigned; and (3) otherwise maintaining compliance with all other requirements regarding successful program participation. BOP Program Statement 5410.01 CN-2, First Step Act of 2018—Time Credits: Procedures for Implementation of 28 U.S.C. § 3632(d)(4) 16 (Mar. 10, 2023).In all cases, for time credits to apply an individual must have: (1) earned time credits in an amount equal to the remainder of the individual’s term of imprisonment; (2) shown through periodic risk assessments a demonstrated recidivism risk reduction or have maintained a minimum or low recidivism risk; and (3) had the remainder of the imposed term of imprisonment computed under applicable law. 18 U.S.C. § 3624(g)(1)(A)–(C).If the individual’s original sentence included a term of supervised release, the BOP may transfer the individual “to begin any such term of supervised release at an earlier date, not to exceed 12 months, based on the application of time credits.” 18 U.S.C. § 3624(g)(3); see also BOP Program Statement 5410.01 CN-2, First Step Act of 2018—Time Credits: Procedures for Implementation of 28 U.S.C. § 3632(d)(4) 17–18 (Mar. 10, 2023).The BOP may place an individual on prerelease custody, either by placement into home confinement or at a residential reentry center. See 18 U.S.C. § 3624(g)(2); see also BOP Program Statement 5410.01 CN-2, First Step Act of 2018—Time Credits: Procedures for Implementation of 28 U.S.C. § 3632(d)(4) 15–16 (Mar. 10, 2023).18 U.S.C. § 3632(e); 18 C.F.R. § 523.43. The procedures for loss of earned time credits are described in 28 CFR part 541. Individuals may appeal the loss of time credits pursuant to the BOP’s administrative remedy program. See 28 C.F.R. part 542. An individual who has lost time credits may have some or all of those credits restored “on a case-by-case basis, after clear conduct . . . for two consecutive risk and needs assessments.” 28 C.F.R. § 523.43; BOP Program Statement 5410.01 CN-2, First Step Act of 2018—Time Credits: Procedures for Implementation of 18 U.S.C. § 3632(d)(4) 12–13 (Mar. 10, 2023).“The incentives described in [18 U.S.C. § 3632(d)] shall be in addition to any other rewards or incentives for which a prisoner may be eligible.” 18 U.S.C. § 3632(d)(6); see also 18 U.S.C. § 3624(b) (good conduct time); 18 U.S.C. § 3621(e) (RDAP); BOP Program Statement 5410.01 CN-2, First Step Act of 2018—Time Credits: Procedures for Implementation of 28 U.S.C. § 3632(d)(4) 18 (Mar. 10, 2023).The First Step Act of 2018 (Public Law 115–391) was signed into law on December 21, 2018. The Act includes several requirements for the Department of Justice (DOJ) and its components, including the Bureau of Prisons (BOP), “related to developing and implementing a risk and needs assessment system, providing evidence-based recidivism reduction programs and productive activities to incarcerated people, and applying time credits” toward early release from secure custody. U.S. Gov’t Accountability Off., GAO-23-105139, 5 (2023).In addition to other awards and incentives, see 18 U.S.C. § 3632(d)(1)–(3), the First Step Act allows individuals to earn time credits that may reduce the amount of time they spend in secure custody, see 18 U.S.C. § 3632(d)(4). Incarcerated individuals may earn time credits “toward early transfer to prerelease custody (i.e., home confinement or Residential Reentry Centers) or to supervised release if they meet certain First Step Act eligibility requirements.” U.S. Gov’t Accountability Off., GAO-23-105139, 16 (2023).The Prisoner Assessment Tool Targeting Estimated Risk and Needs is DOJ’s “risk assessment system” that BOP staff uses to measure an incarcerated individual’s risk of recidivism. U.S. Gov’t Accountability Off., GAO-23-105139, 11 (2023). Because risk factors vary based on whether an individual is male or female, PATTERN uses different “cut points” and evaluation criteria for each group. See id.; see also U.S. Dep’t of Just., Off. of Just. Programs, Nat’l Inst. of Just., 2022 Review and Revalidation of the First Step Act Risk Assessment Tool, NCJ 305720, 40–41 (Mar. 2023). More information about PATTERN can be found on the BOP’s website.The Standardized Prisoner Assessment for Reduction in Criminality is a 13-area “needs assessment system” that BOP staff uses “to identify incarcerated people’s needs that, if addressed, may reduce their recidivism risk.” U.S. Gov’t Accountability Off., GAO-23-105139, 13 (2023). These 13 need areas include anger/hostility, antisocial peers, cognitions, dyslexia, education, family/parenting, finance/poverty, medical, mental health, recreation/leisure/fitness, substance use, trauma, and work. Id. at 13–14 & n.28; see also BOP Program Statement 5400.01, First Step Act Needs Assessment 4 (June 25, 2021). “Different BOP units are responsible for assessing specific needs, some of which require the voluntary participation of the incarcerated person.” U.S. Gov’t Accountability Off., GAO-23-105139, 13 (2023). More information about SPARC-13 can be found on the BOP’s website.An EBRR is a group or individual activity that (1) has been shown by empirical evidence to reduce recidivism or is based on research indicating that it is likely to be effective in reducing recidivism; (2) is designed to help individuals succeed in their communities upon release from prison; and (3) may include components related to, inter alia, social learning and life skills, parenting skills, morals or ethics, cognitive behavioral treatment, substance abuse treatment, vocational training or prison work programs, and faith-based classes or services. See 18 U.S.C. § 3635(3). The First Step Act Approved Programs Guide provides a listing and description of available EBRRs.A PA is a group or individual activity that is designed to allow individuals “determined as having a minimum or low risk of recidivating to remain productive and thereby maintain a minimum or low risk of recidivating,” and which may include the delivery of certain programming to other incarcerated individuals. See 18 U.S.C. § 3635(5). The First Step Act Approved Programs Guide provides a listing and description of available PAs.