March 8, 2023
Since January 2022, the Federal Bureau of Prisons (BOP) has been trying to determine how to calculate how the First Step Act (FSA), a law signed by President Donald Trump in December 2018. As we enter March 2023, there still is no clear direction on the calculation and the frustration has grown among prisoners and families who are anxiously waiting on a determination of when a federal prison term will end.
The basis of the FSA law, according to Hugh Hurwitz retired Acting Director of the BOP, is to reduce the federal prison population, something that has trended down over the past 6 years. The premise of FSA is to reward federal prisoners’ participation in meaningful classes meant to return a better citizen to society and, hopefully, reduce the chances of them returning to prison. The reward is that an eligible prisoner (and many violent crimes and charges are excluded) can earn 10 days of credits off of their sentence for every 30 days of programming or productive activities. For those who have a minimum or low rates of recidivism, known as a PATTERN score, the prisoner can earn an additional 5 days each month if they get two consecutive scores of low or minimum. Those scores are updated every 6 months, so potentially, a prisoner who arrives at prison could be earning 15 days per month off of their sentence within the first 6 months of arriving there. This could be especially good news for those first time, non- violent offenders who could see their sentences cut by up to 365 days, the maximum allowed under the FSA. However, the BOP’s interpretation of when to assign 15 days of credits rather than the 10 days will cut short the amount of credits being allotted to prisoners.
The BOP initially calculated the FSA credits manually beginning in January 2022 when the Federal Register published the Final Rule on FSA. The initial BOP calculations for minimum level offenders with minimum chances of recidivism was that 15 days per month started from the beginning of the prison term, something more generous than what was even stated in the FSA law. Prisoners across the country were released based on this calculation. This initial and interim manual calculation was used through August 2022 when the BOP rolled out a new auto-calculator. That auto-calculator had a major interpretation that was not a part of FSA either, which stopped all credits from being earned once the prisoner was 18 months from release. This was particularly hard on those prisoners with shorter sentences.
As December 2022 came to a close, the BOP’s auto-calculator interpretation came under scrutiny from U.S. Senators Dick Durbin and Chuck Grassley, the law’s biggest proponents. Suddenly, the BOP changed course and another calculation was promised and it landed with yet another interpretation that is limiting the amount of credits prisoners can earn.
The BOP is now in its third iteration of FSA calculation and this is just as confusing as its first. Now the BOP is stating that prisoners can only earn 10 credits per month for the first year of incarceration. In February, the BOP released a Program Statement that provides direction to BOP staff on how to calculate FSA and it clearly states that FSA credit is awarded when the prisoner “(i) Is determined by the Bureau to be at a minimum or low risk for recidivating; and (ii) Has maintained a consistent minimum or low risk of recidivism over the most recent two consecutive risk and needs assessments conducted by the Bureau.” That seems straight forward but the BOP is not counting the first assessment done within 30 days of the prisoner arriving at prison and instead, the prisoner can only get to 15 days/month after the first year (or 3 assessments later). While this seems like a disadvantage to prisoners, it is also a big disadvantage to tax payers.
This simple calculation of determining when prisoners move to 15 days per month of incentive rather than 10 days has financial implications. The BOP currently states that there are approximately 158,000 inmates in institutions across the country. Of that number, over 78,000 of them are minimum and low security inmates, the populations most likely to get FSA credits toward reducing the sentence. Assume that half of those are eligible, 39,000. At a cost of $120/day to house the average federal prisoner, that is 5 days of credits multiplied by 6 months (credits at 10 days/month rather than 15 days/month) for 39,000 prisoners. That is $23.4 million dollars each year of incarceration costs just because of this simple interpretation. The BOP has one of the largest budgets under the Department of Justice at $7.8 billion for FY 2023.
Prisoners across the country are taking their cases to federal court asking for relief and for federal judges to get involved in determining the duration of the prison sentence. In a case in the District of Maryland (Sreedhar Potarazu v BOP, Case No. 1:22-cv-01334) the case manager for the plaintiff gave his own interpretation of how credits were applied by the BOP, giving Mr. Potarazu 10 credits per month for nearly 3 years of his sentence. There was no basis for the calculation which did not cite specific policy on which the calculation was based, providing even more confusion among both prisoners and staff across the BOP. Previously, the BOP has used declarations, which were similarly not based on a specific policy, from executives at its Central Office.
It is becoming increasingly apparent that the FSA will be finally determined by a federal court decision and not by what should be a simple interpretation of the law by the BOP. However, many prisoners who await the outcome from court decisions will have spent weeks or months in prison unnecessarily.