President Joe Biden’s Executive Order 14074 on May 25, 2022 (Advancing Effective, Accountable Policing and Criminal Justice Practices To Enhance Public Trust and Public Safety) stated, “… no one should be required to serve an excessive prison sentence … My Administration will fully implement the First Step Act, including by supporting sentencing reductions in appropriate cases and by allowing eligible incarcerated people to participate in recidivism reduction programming and earn time credits.” However, the Federal Bureau of Prisons (BOP) is not prepared to fully implement the policy and people are being held in prison for longer than necessary because of the agency’s failures.
The First Step Act (FSA), signed by President Donald Trump in December 2018, allowed certain federal inmates to earn additional time off of their sentences by participating in certain programs and productive activities. The group most likely to earn these credits are minimum and low security inmates who also have demonstrated a low chance of returning to prison through their participation in programming. Inmates can earn up to a year off of their prison term and even additional time for living on home confinement at the end of their prison term. It is meaningful. However, the BOP has yet to develop an automated system to calculate the reduction in sentences under FSA, which has left many inmates wondering when their release date will be.
According to an internal BOP memorandum authored by Susan Giddings BOP Correctional Programs Branch, the BOP acknowledged in an internal email that they “… know the institutions are likely getting a lot of calls from outside family members and/or questions from the inmates themselves. We ask that you refrain from referring inmates or their family members to the DSCC [Designation and Sentence Computation Center] or Central Office. As we move toward a fully automated auto-calculation process for the calculating and awarding of FTCs, neither the DSCC nor the Corrections Programs Branch are directly involved in the process.” Instead, Giddings directed institutions to have a canned response to inmates and their family members and asked “for their patience” during the implementation of a calculator to determine when FSA eligible inmates will be released. The following guidance was given to BOP staff by Giddings to tell those who asked about FSA credits:
“As the Bureau has begun to award Federal Time Credits and to ensure inmates are eligible to both earn and apply Federal Time Credits are awarded their credits timely, an interim implementation plan has been established. While all eligible inmates are able to earn credits, the Agency is prioritizing those inmates who are within 24 months of their Statutory Release date and eligible to both earn and apply Federal Time Credits. The Agency is in the final stages of development and testing of an auto-calculation app, and once finalized all eligible inmates will have their records updated and the Federal Time applied consistently with the Federal Rules lanaguage. Neither the inmate’s eligibility status nor the basis for the status is public information.”
While it is true that many inmates have been released, this response does little to reduce the stress of thousands of inmates who are eligible for these credits and are waiting on the BOP to let them out of prison. Inmates are resorting to the administrative process within prisons to request action be taken to award them FSA credits. That process calls for inmates to address their grievances to their case manager, then the warden, then regional office and finally to the BOP’s Central Office in Washington DC. The administrative process in the BOP is broken and many of those in prison have written to federal courts that staff have threatened them with sanctions for even using the process. Some inmates have resorted to federal courts to to address their demands after remedies fail. The problem is that many of these inmates requests are either not answered at all or denied at the last possible day before they go to the next level of remedy. In short, the process takes time and then there is even more time to get through the courts. “Time” is something the BOP and the federal courts have but inmates consider it a precious commodity.
For Don Corneliu Hill, a minimum security inmate at the Edgefield Federal Prison camp in South Carolina, assistance to get his FSA credits may come too late. Hill asked for FSA credits that have thus far been withheld because of the lack of technology and manpower to calculate his credits. Hill filed a habeas corpus lawsuit in South Carolina. His case is before U.S. District Federal Magistrate Judge Kaymani D. West who must interpret whether Hill is due his credits.
There is no need for Hill to be in court for this request if the BOP was simply carrying out the law and Biden’s own directive to get FSA moving. Instead, the US Attorney’s Office in South Carolina, who is representing the FCI Edgefield’s Warden in the civil action seeking relief, is opposing Hill’s request. Assistant US Attorney Barbara Bowens filed a motion to have Hill’s motion dismissed, partly because he has not gone through the full administrative remedy process. Bowens wrote, “Petitioner [Hill] failed to exhaust administrative remedies before filing his petition, and as such, his claims are not ripe for review and must be dismissed.” In sports this is known as running out the clock.
Hill did start the administrative remedy process (known as a BP-8 to the case manager and a BP-9 to the Warden) and he never received a response on either of them. In March Hill, who is indigent as are 90% of all those convicted on federal charges, filed a habeas corpus motion from his prison cell in Edgefield. On June 3, the last day for a response after AUSA Bowens had asked for an extension of time, Bowens claimed that Hill’s request should be denied. Hill now awaits a decision by Judge West.
Another former inmate, Doug Dyer, also fought for his FSA credits and only had them awarded after U.S. District Judge Curtis L. Collier (Eastern District of Tennessee, Case No: 1:21-cv-299-CLC-CHS) ordered Dyer to receive 489 days pursuant to the First Step Act that had previously been denied by the BOP. Dyer received the credits after he had been released from prison but Judge Collier ordered the credits be applied toward his years of supervised release. In that case, both the BOP, through the administrative remedy process, and prosecutors fought in court to prevent Dyer from getting any FSA credits. It should not be this difficult.
The problems the BOP is having stem from a shortage of staff. Outgoing BOP Director Michael Carvajal told Congress in February 2022 that one of the agencies key priorities was fully staffing institutions. However, an internal memo from Carvajal on June 2, 2022 was circulated stating that “staffing levels are currently trending downward nationwide” and instituted new incentives to both keep people on staff and expand efforts to hire new staff. Current BOP employees will be offered a $1,000 recruitment incentive for each applicant who is referred and hired to the BOP.
It literally took an act of Congress to get some prison sentence relief, all who are eager to resume a new life on the other side of the fence. We also have two presidents (Biden and Trump), who could not be more different in their views, that agree on the implementation of the First Step Act but the agency tasked with that implementation is proving to be both inept and, seemingly, reluctant to take action. Meanwhile, inmates who should be released from prison are being held beyond what should be their prison termination date.
If Biden and congress want to implement the First Step Act, they need new leadership at the BOP, intervention to get caught up and clarity for those on the front line at these institutions. In his Executive Order press release, Biden ordered the Attorney General to update Department of Justice policy as necessary to fully implement the First Step Act. If this is to happen, the Attorney General himself will have to take charge.