Forbes.com Walter Pavlo January 16, 2023
This week, many federal prisoners found out that their First Step Act (FSA) credits, which had been incorrectly calculated by the Bureau of Prisons (BOP), were finally corrected. Thousands of low and minimum security prisoners were released as a result of their participation in programs and productive activities because they earned credits under FSA. However, not everyone was happy with the new calculation and there is still a lot of confusion.
There have been a number of missteps by the BOP in implementing a way to calculate FSA credits. On January 19, 2022, the Final Rule on FSA Credits was published in the Federal Register. Despite the BOP’s own input on that document, it was not prepared to implement a sweeping automated calculator for thousands of prisoners affected by that rule. As a result, BOP implemented an interim calculation procedure which evaluated inmates with less than 24 months from release and provided them a “manual” calculation until a new, automated, computer program was in place. There were to be no additional manual calculations until that new auto-calculator was completed, which was estimated to be August 30, 2022. Between February 2022 and August 2022, many prisoners received their calculation of FSA credits and hoped that the new aut0-calculator would reveal they had even more.
In August 2022, the auto-calculator was rolled out by the BOP, and it encountered several issues which led to it finally being released in mid- October 2022. At that time, the BOP had also unilaterally implemented its own interpretation of the FSA with the introduction of the “18-month” rule that stated those with 18 months or less remaining on their sentence could not
use FSA credits that could be applied to an earlier transfer to supervised release (reduced sentence). The BOP allowed prisoners who had received their manual credits, but who would not otherwise receive credits because of the 18-month rule, to keep them. For many prisoners, it was under 100 days of credits. This revised rule was put in place despite the BOP releasing many inmates during the course of 2022 who would not otherwise have been released because of this 18-month rule change.
Senators Chuck Grassley and Dick Durbin wrote Attorney General Merrick Garland about their concern over the 18-month rule. When the BOP program statement on FSA came out in December 2022, the 18-month rule was nowhere in the document and had subsequently been dropped. That meant that prisoners who were excluded under the 18-month rule were now eligible again to receive FSA credits. With the release of the program statement, the BOP also provided an announcement that its next auto-calculator would be ready in January 2023. Again, many prisoners waited on this new calculation. That new calculation was initiated by the BOP on January 9, 2023.
While many prisoners were release this week because of the new calculation, many of them would have gone home earlier if the BOP had correctly implemented the FSA calculator much earlier. Then news started to spread around the prison population that many prisoners had the credits they believed they had earned suddenly disappear. The issue that is causing much of this problem is two-fold; a correct interpretation of the FSA that most everyone forgot about and yet another error in the FSA calculator.
FSA credits can only be applied when the amount of credits earned equals or exceeds the amount of time remaining in the sentence. Those prisoners who
had credits that suddenly disappeared really still have them, they just cannot be applied yet because they have more days remaining on their sentence than they do FSA credits.
The other issue is that the BOP’s model did not detect the second risk assessment score (known as PATTERN), so prisoners received only 10 credits for each month of programming rather than 15 after the second PATTERN score. It is a problem that the BOP is going to correct but there is no timeline for that fix.
Each one of these days matters to prisoners, but they also matter to tax payers. It costs over $120/day to house a prisoner in federal prison and it costs nothing if they are released from prison. There are thousands of prisoner affected by this delay and each one has any number of days that they are due. This represents tens of thousands of prison days that are costing taxpayers money.
While those in prison have issues, those in prerelease custody (halfway houses and home confinement) have bigger issues. On January 6 the BOP also made another unilateral decision by stating that those in prerelease custody were going to have their calculation treated differently by not calculating them at all. The BOP stated that:
“Individuals in community placements as of December 31, 2022, will remain, even if their Needs Assessment was not completed or they previously declined a program while in secure custody.
Individuals in community placements will retain prospectively estimated FTCs despite declined programs prior to implementation of the automatic
calculation or any incomplete Needs Assessment prior to community
This is not even a BOP policy but just a statement on the BOP.gov website. Prisoners in this situation have indeed earned FSA credits but they have not been applied because the BOP does not have a calculator to do so. These individuals will languish in BOP custody, albeit in a better situation than being in prison, but for months more than necessary. This has penalized many prisoners who have and continue to live by the rules earning FSA credits with the expectation of having those credits applied.
To address this situation, the BOP’s own administrative remedy process will not suffice as time is of the essence and the result of what the BOP considers a timely response will result in many overstaying their prison
sentence. However, the BOP can address this situation. First, it obviously has an ability to conduct a manual calculation as it did for all prisoners just after the January 2022 final rule. This is appropriate since the current version of the auto-calculation has no means of being able to even apply the FSAs that prisoners in this situation have earned. In situations where there are special circumstances, the BOP stated in the Final Rule:
“The Bureau will strive to reach an equitable result when calculating time in
program participation and circumstances both beyond and within the inmate’s control. Accordingly, unless the inmate formally declines recommended programming addressing his or her unique needs, or is not participating in any activities, the assumption is the the eligible inmates will be earning Time Credits and fully participating in recommended programming.”
This is one of those situations.