New Senate Legislation Expands Early Prison Release

Bipartisan legislation introduced Tuesday in the U.S. Senate would allow non-violent elderly prisoners to leave prison for home confinement earlier, and also allow those vulnerable to COVID-19 to be eligible for compassionate release, in a continuing effort to expand the First Step Act prison reform of 2018.

A provision of the First Step Act allows non-violent federal prisoners at low risk of re-offending to leave prison for home detention once they have reached the age of 60 and served two-thirds of their sentence. But the statutory language, and a previous federal court ruling regarding a similar law, indicated that the two-thirds mandatory time served is to be calculated from the full sentence, not including time off for good behavior. For example, a prisoner sentenced to ten years, with the standard 15% time off for good behavior, would only serve eight-and-a-half years. Once he reaches 60, would he get out after serving two-thirds of ten years (six-and-two-thirds years) or two-thirds of eight-and-a-half years (five-and-two-thirds years)?

The new legislation introduced Tuesday by Senators Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa), authors of the First Step Act, amends the First Step Act to make clear that the two-thirds will be calculated by the inmate’s sentence including reductions for good behavior.

The legislation also allows these prisoners over 60 years old to begin the home detention program after serving only 50% of their term, rather than the two-thirds mandated by the First Step Act.

Legislation clarifying that the mandatory time served is to be calculated by including reductions for good behavior passed the House by unanimous consent last December. That legislation was never brought to a vote in the Senate due to opposition by a handful of conservative Republicans. Supporters of the bill had attempted, but failed, to attach it to the CARES Act, the massive federal coronavirus stimulus bill that passed Congress and was signed into law in March. A subsequent stimulus bill that passed the House went even further with prison reform – lowering the mandatory time served to be eligible for home detention from two-thirds to 50%, and also lowering the age requirement from 60 to 50 – but that stimulus bill is not expected to pass the Senate, and in any event, this provision would not be acceptable to Republicans.

The new Senate legislation introduced Tuesday – clarifying that the percentage of time served to be eligible for home confinement is to be calculated by including reductions for good behavior; lowering the mandatory time served from two-thirds to 50%; but keeping the eligibility age at 60 – will likely be attached it to another bill, such as a stimulus bill or the police-reform bill currently being crafted by Sen. Tim Scott (R-S.C.)

The new legislation also allows a prisoner’s vulnerability to COVID-19 to be a basis for compassionate release, and speeds the judicial review time for elderly home detention and compassionate release from a minimum of 30 days to a minimum of 10 days.

Durbin said the new legislation will “help ensure that the most vulnerable prisoners are quickly released or transferred to home confinement for the remainder of their sentence – just as the First Step Act intended. This is especially critical during the COVID-19 pandemic to protect against the spread of this deadly virus.”

Grassley said passing this expansion on prison reform is even more imperative than ever now.

“In the middle of a pandemic, the federal government ought to be doing everything it can to protect the inmates in its care,” said Grassley. “We already established important home confinement and early release programs in 2018, which are especially important right now as older inmates face very serious risks because of the virus. Our bill will clarify and expand those programs we wrote into the First Step Act, so we can better protect these vulnerable populations.”

Prison-reform advocate Rabbi Moshe Margareten, who is founder and director of Tzedek Association and has worked closely with Aleph Institute, and has been involved in drafting the new legislation, told Hamodia on Tuesday, “We are hopeful that this bipartisan bill will be signed into law quickly. It will make a tremendous impact on thousands of lives, both inmates and their suffering families.”

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rborchardt@hamodia.com