• November 28, 2022

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The Federal Bureau of Prisons (BOP) has entered one of the most complex stages of implementing the First Step Act (FSA) signed into law nearly 4 years ago under President Donald Trump) in 2018. FSA was one of the most sweeping changes associated with incarceration of federal prisoners because it allowed them to earn time off of their sentences for participation in programming.

BOP Director Colette Peters recently went on the record September 29, 2022 during a Senate Judiciary Committee meeting stating that the BOP’s “… mission is to ensure safe prisons, humane correctional practices, and rehabilitation opportunities so that people reenter society as good neighbors.” Her comments align with the FSA which offers prisoners programming and participation in work assignments to provide both a reduction in sentence (sooner transfer to supervised release) and/or additional pre-release custody (more halfway house or home confinement). However, Peters’ comments have not been consistent with recent actions taken by the BOP.

The BOP is known for narrowly interpreting policies that could lead to prisoners being taken out of their correctional institution custody. In fact, the BOP’s initial interpretation of how prisoner’s earned FSA credits was so cumbersome and limiting that almost nobody would have realized a reduction in their sentence. Congressman Hakeem Jeffries (D–NY) comment in on the BOP’s early interpretation of the type of participation needed to earn credits said that it, “…does not appear to be a good faith attempt to honor congressional intent.”

The BOP implemented an interim calculation policy beginning in January 2022, just after the Federal Register published its final rule on FSA, that seemed to address Jeffries’ concerns and thousands of minimum and low security prisoners were released from prison and halfway houses across the country as a result. Since then, those prisoners in custody received a manual calculation of FSA credits that also reduced sentences but it was limited to a one-time calculation until a more permanent auto-calculator was built. That calculator was fully implemented in October 2022 but it was met with confusion because the BOP, unilaterally, instituted a rule that stated:

“Eligible inmates will continue to earn FTC [Federal Time Credits] toward early release until they have accumulate 365 days OR are 18 months from their release date, whichever happens first [emphasis added by BOP]. At this point, the release date becomes fixed, and all additional FTCs are applied toward RRC/HC [Residential Reentry Centers / Home Confinement] placement.”

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That rule has now been challenged in federal court and US District Judge Lorna G. Schofield (Southern District of New York, Case No: 1:22-cv-03821) has stated that “the Court has not located, any part of the Rule [Final Rule in Federal Register] that imposes or authorizes this 18-month cutoff, nor any statutory authority under which such a rule could be promulgated.” In other words, Judge Schofield stated the BOP cannot arbitrarily make up rules that limit FSA credits. This single ruling, if adopted across the country, could reduce the sentences of thousands of federal inmates who are low or minimum security.

The BOP’s position in that Southern District case, via a declaration by BOP’s Susan Giddings, stated that the interim calculation was necessary to meet the immediate needs of meeting the requirements of FSA but upon implementing the new calculation, “This 18-month cut off is necessitated by the need for a predictable release date.” However, the BOP’s necessity for a predictable release date was seems like a convenience for the Agency and not a requirement under FSA.

Giddings has been the sole communicator of BOP policy on how FSA credits are applied, which has been a bit of a mystery for months since the Final Rule was established. First, Giddings provided a declaration that allowed a prisoner with a 21-month sentence to be released based on her then-interpretation of FSA. Since then, in this more recent declaration, Giddings has called the interim-manual calculations that some prisoners received “windfalls” that they should have not received. These “windfalls” are the same manual calculations she put out just a few months ago as an validation of the BOP’s interpretation of FSA and, one would have believed, be part of the final auto-calculation.

The 18-month rule is going to be a difficult one for the BOP to continue to try to enforce. First, it is counter to the FSA law and second it seems to be against the mission BOP Director Peters has set.

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