December 2023

Technically Speaking

Accounting for Technical Violations in First Step Act Recidivism

Analysis by Avinash Bhati, PhD

A previous Council on Criminal Justice report, First Step Act: An Early Analysis of Recidivism, found that people released from prison under the First Step Act (FSA) had a recidivism rate 37% lower than similarly situated individuals (i.e., similar risk levels and time since release from prison) who were released prior to the Act’s implementation. Using newly available data, this brief adds further context to the recidivism analysis1 by distinguishing recidivism due to technical violations of supervision rules from recidivism attributed to new criminal activity.

The Bureau of Prisons (BOP) defines recidivism as any rearrest or return to federal prison for a new crime or technical violation of supervision, regardless of the outcome of that arrest (whether a person is charged or convicted). Return to federal prison due to a technical violation occurs when an individual is incarcerated after failing to comply with the conditions of post-release supervision, such as not showing up for a meeting with a probation or parole officer or testing positive for drug use. Although being arrested for a new crime is considered a technical violation, people charged with committing new crimes are excluded from this category in the data.

To distinguish the types of behavior represented in recidivism statistics, this analysis updates the number of arrests incurred by people released under the FSA by removing those whose recidivism is due to technical violations. The data and assumptions made to conduct this analysis are explained in a supplemental methodology report. The analysis does not seek to evaluate the FSA or its implementation.

Accounting for Technical Violations

31% of all recidivism was due to technical violations.

According to BOP's published data, the recidivism rate for all people released under the FSA is 12.4%.2 These data, however, do not distinguish recidivism attributed to technical violations from recidivism due to new criminal activity.

To better understand the nature and extent of recidivism under the FSA, CCJ submitted a formal information request to the BOP. Data received in response to the request indicate that revocations for technical violations account for 31% of the reported recidivism for people released under the FSA. This means that 69% of recidivism was due to new criminal activity. Applying this ratio to the 12.4% recidivism rate reported for this group, 3.9% of the 29,946 people released under the FSA were returned to federal prison for technical violations and 8.5% of all people released under the FSA were rearrested and charged with a new crime.

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Notes: Recidivism is defined as any new arrest or return to federal prison. Data include recidivism outcomes for the 29,946 people released under the FSA between 2020 and 2022.

Arrests Incurred

Removing technical violations decreases the estimated number of arrests incurred by people released under the FSA from 4,330 to 2,885.

CCJ's previous analysis estimated arrests for the 29,946 people released under the FSA over three years using the published recidivism rate of 12.4%. This analysis indicated that people released under the FSA could have accounted for between 3,712 and 4,330 arrests in the community over three years. Removing recidivism based on technical violations (which are unlikely to result in an arrest) reduces the estimated number of arrests incurred by people released under the FSA over three years. Using the adjusted recidivism rate of 8.5% tied directly to new crime, the 29,946 people released under the FSA could have accounted for between 2,549 and 2,885 arrests. This is between 1,163 and 1,445 fewer arrests than previously estimated.

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National Arrests

People released under the FSA would account for 0.014% of national arrests.

CCJ's previous analysis indicated that the highest estimated number of arrests incurred by people released under the FSA (4,330) accounted for two one-hundredths of one percent (0.021%) of all 20 million arrests3 nationwide from 2020 to 2022, or 21 out of every 100,000 arrests. After removing recidivism based on technical violations, arrests incurred by people released under the FSA (2,885) would account for an estimated 0.014% of national arrests during that time period, or 14 out of every 100,000 arrests.

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Conclusions and Limitations

The current analysis uses newly available federal data regarding technical violations to update the recidivism statistics reported in CCJ's previous analysis. Nearly a third (31%) of all reported recidivism for the 29,946 people released under the FSA was attributed to technical violations rather than new crime. The three-year new crime recidivism rate for people released under the FSA was 8.5%. People released under the FSA would account for a maximum of 2,885 arrests for new crime—1,445 fewer arrests than previously estimated.

Data limitations prevent a comparison of technical violations between people released under the FSA and a group of similarly situated people (i.e., similar risk levels and time since release from prison) released from federal prisons prior to the Act’s implementation. Detailed individual-level data are needed to determine whether different provisions of the FSA change the relative risk of recidivism stemming from new criminal activity versus recidivism attributable to technical violations. Indeed, as noted in the previous recidivism analysis, individual level data is necessary to carry out a rigorous evaluation of the First Step Act.

For additional analysis about the First Step Act’s impact on how much time people serve in federal prison, see CCJ’s Time Sentenced and Time Served: Exploring the Impact of the First Step Act.