The final rule on First Step Act (FSA) was only published in January 2022 in the Federal Register, over three years after President Donald Trump signed the legislation into law. Dep’t of Just., Bureau of Prisons, FSA Time Credits, 87 Fed. Reg. 2705 (Jan. 19, 2022) (to be codified at 28 C.F.R. pts. 523, 541). Like other criminal laws passed by Congress and signed into law, such as the Second Chance Act, the Bureau of Prisons’ (BOP) interpretation of FSA was narrow, and it was not until the Federal Register final rule that the real intent of FSA was clarified.
FSA Earned Time Credit (ETC) can be earned by inmates for earlier transition to supervised or pre-release custody (halfway house or home confinement). These benefits are available to a certain population of prisoners: those who have a minimum or low PATTERN score, a tool that measures an inmate’s general risk for re-offending and their risk for future violence. In addition, offenders convicted of certain crimes, such as terrorism, espionage, human trafficking, sex offenses, and others, are ineligible for these credits, though other incentives such as increased frequency of visitation may apply. (Note: There are 68 ineligible offenses.) DC Code offenders and non-US citizens with a deportable offense are also ineligible to earn FSA ETC.
Inmates do not earn ETCs during any pre-trial incarceration or post-conviction while housed at an MCC/MDC awaiting transfer to the designated institution. Inmates, upon arrival at their designated prison and who possess a minimum or low PATTERN score, are eligible to earn 10 days of ETC for every 30 days of Evidence-Based Recidivism Reduction (EBRR) programs or participation in Productive Activities (PA). Following a second calculation of the PATTERN (usually seven months after arrival at the designated facility), the inmate is eligible to begin earning an additional five days, for a total of 15 days of ETCs each month, provided they have two consecutive PATTERN scores of minimum or low. At the six-month Program Review Unit Team meetings, inmates’ needs are assessed and EBRR programs and PA are recommended. These programs and activities may include participation in classes such as anger management, drug and alcohol abuse programs, education, parenting, victim impact, or a job assignment.
Earned ETCs can be applied to an earlier transfer to supervised release, essentially shortening the sentence of the prisoner by up to 365 days. For those currently in custody, FSA credits are retroactive to December 2018, when the FSA was originally signed. Eligible inmates who were incarcerated during that time will receive retroactive credits back to December 2018. When an inmate maximizes the one-year ETC ceiling of an earlier release to supervision, additional earned credits may be applied toward prelease custody (additional halfway house or home confinement).
ETCs can also be accumulated while an inmate is continuing their sentence at a halfway house or on home confinement. According to a model we developed to calculate sentences, a person entering prison on January 1, 2022, to serve a 45-month sentence would have their time in prison shortened to 27 months if they receive the maximum FSA ETC benefit. They could also be eligible for up to approximately five months on home confinement. It truly has a benefit to those facing a prison term.
The news can be even better if a prisoner is eligible for a reduction in sentence under 18 U.S.C. § 3621(e) for successful completion of the Residential Drug Abuse Program (RDAP), the BOP’s most intensive drug abuse program. The benefit can be up to one year off the sentence. It is a three-phase program that includes a nine-month treatment program within the prison followed by a minimum six-month transitional phase that is done during halfway house and home confinement. An inmate can earn both FSA and 3621(e) reduction, creating not only two years off the sentence but a mandatory minimum amount of six months of halfway house or home confinement. The reduction in the length of time spent in a prison environment is substantial.
The FSA can be important for attorneys as part of a sentencing strategy. Eligible defendants remanded into custody at sentencing will not begin earning FSA ETCs until they reach their final designated facility. With the uncertainty of the COVID-19 pandemic, transport of an inmate to a designated institution could take several months. The ETCs not earned due to a delay in transit can never be regained. This lost time could have a significant impact on a client’s release date. Likewise, when an inmate is removed for purposes of a writ for testimony or prosecution and is held in a US Marshals contract prison, ETCs will not be earned. Consideration of FSA should be part of a mitigation strategy at sentencing when considering a remand or some period that an inmate may be away from the designated prison. The BOP initially interpreted FSA narrowly and limited how prisoners earned credits. In one comment in the Federal Register final rule, Congressman Hakeem Jeffries (D-NY) stated, “BOP’s definition of a day would dramatically reduce the amount of time credits an individual can earn.” The BOP responded that it agreed, broadening the rule to make it easier for prisoners to earn more ETC. The BOP went further to state, “First, the Bureau intends to transfer eligible inmates who satisfy the criteria to supervised release to the extent practicable, rather than to prelease custody. The Bureau therefore anticipates that the total population of eligible inmates in RRCs or home confinement will be small.” The BOP should be held to this standard.
What we have seen and heard from former colleagues, current BOP staff, attorneys, and inmates is that there is a significant lack of understanding and transparency regarding the FSA and how it is being implemented. Current BOP case managers and other Unit Team members (these are the staff who have primary responsibility of the FSA) have not received proper training regarding the FSA. The current internal directive for the BOP is Program Statement 5220.01, First Step Act Program Incentives, which was published on July 14, 2021, before this final rule. This Program Statement provides a very limited perspective of the FSA in its final form, and the conflicts between the statement and final rule are many. Currently, we know of cases where prisoners are being held beyond their FSA release date because of miscalculations and misinterpretations of FSA.
Case managers usually possess a higher education than some other staff within the BOP, but few, if any, have a law degree and are familiar with interpreting legal language. This situation is frustrating for many staff and has resulted in inaccurate information being disseminated to inmates. Not only is the wrong information being passed on, but there is also a lack of consistency throughout the BOP on how FSA is being implemented. Until the BOP invests the time to properly train staff regarding the FSA and its procedures, there will continue to be confusion for everyone. Worse, those who should have earned FSA ETC will remain in prison longer than they otherwise should have.
In late January and early February 2022, thousands of inmates assigned to halfway houses or home confinement had their sentence computations updated to reflect the ETCs. This resulted in thousands of inmates being released from home confinement and halfway houses. Since then, the BOP has devised a system of awarding ETCs and updating sentence computations based on release dates, with priority given to those inmates with future release dates of 24 months or fewer. The result has been overworked and confused case managers, who are responsible for preparing the paperwork and coordinating the transition from prison to pre-release custody. These calculations are being done manually by the BOP until a computer program can be developed to calculate FSA ETC. Simply stated, the BOP does not currently have the resources available to properly manage the requirements and duties associated with the FSA. Without the necessary staff resources and a systematic approach, it will be difficult to ever catch up, navigate, properly monitor, and manage the requirements of the FSA.
Attorneys should read the final FSA rule with the intent of helping clients who need to navigate the prison experience. There is nothing more important to someone in prison than knowing when they will be going home.
Originally published on November 01, 2022 by Walt Pavlo and Maureen P. Baird.
Published in Criminal Justice Magazine: Volume 37, Number 2, ©2022 by the American Bar Association.
