The First Step Act -- Constitutionalizing Prison Release Policies (forthcoming)

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In the First Step Act of 2018, Congress directed the Department of Justice to develop a tool to make an algorithmic assessment of recidivism risk based on factors such as the nature of the underlying offense, evidence of prior substance abuse, and education level. In addition, Congress established ways for offenders to shorten their stay in prison, such as by pursuing vocational courses and thereby earning credits toward early release. The First Step Act thus links the length of confinement in part to predictions of recidivism 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. Many have praised the Act for reintroducing rehabilitation as one of the driving forces of our federal criminal justice 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 to assess recidivism risk, the Act dictates that the algorithm alone determines eligibility for early release – no discretion on the part of prison authorities is involved. Accordingly, the First Step Act presents one of the first instances in which an algorithm by itself governs eligibility for a government entitlement. We argue that prison authorities must under Due Process principles allow those inmates excluded from eligibility an opportunity to argue that the risk of recidivism determined by the algorithm should be adjusted in light of facts unique to them. Relatedly, we argue that prison authorities must disclose the inputs that underlie the findings of ineligibility under the algorithmic tool. Moreover, in contrast to prior practice, we argue that Congress’s encouragement of inmates to pursue rehabilitative programming to reduce recidivism requires prison authorities to grant early release once those credits are earned because of the entitlement to “earned” credits created in the Act. We conclude that such constitutionalization of release policies, though likely unintended, should further the Act’s rehabilitative goal in seeking to reduce the likelihood of inmate recidivism prior to reentering society.