• November 28, 2022

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Every morning, Todd Ficeto calls his wife to ask one question, “Has it posted yet?” Ficeto is a federal prisoner at the satellite camp FCI Edgefield (South Carolina). His current release date from prison is listed as August 26, 2024 and, like thousands of other prisoners, Ficeto is waiting for First Step Act (FSA) credits to be applied to his sentence, potentially freeing him one year sooner. He has been waiting on the BOP to develop an automated sentence calculator since February 2022 and worries that every day it is delayed means staying another day longer than necessary in prison.

FSA, one of the most sweeping criminal justice reform pieces of legislation in decades, allowed minimum and low security inmates to earn credits by participating in certain programming to reduce their sentence. Signed in 2018 by President Donald Trump, the Federal Bureau of Prisons (BOP) has struggled to fully implement the program. Nearly four years since becoming law, the BOP has yet to develop an automated computer program to count the programming of prisoners and then apply those as credits against the sentence.

The Senate Judiciary Committee held an oversight meeting of the BOP with testimony from the BOP’s new director, Colette Peters on September 29. Peters is an outsider, coming to the agency after a successful career as the director of the Oregon Department of Corrections. Senator Dick Durbin, Chairman of the Judiciary Committee, opened the hearing by stating, “More than three years, three years, after President Trump signed into law the landmark First Step Act, many incarcerated people who have participated in recidivism reduction are still waiting for the earned time credits.” Peters never mentioned First Step Act in her opening statement but she did submit a written statement that contained factually incorrect information about the application of FSA earned credits.

Director Peters, who was sworn in by Attorney General Merrick Garland in August 2022, arguably has one of the most difficult jobs in all of the federal government. Her predecessor, Michael Carvajal, often clashed with Senator Durbin who called on AG Garland to fire him for incompetence. The agency, with 122 institutions and over 155,000 prisoners, is plagued with mismanagement, corruption, staffing shortages, and decaying infrastructure. Peters, who is hoping to bring changes to the BOP but is off to a rocky start.

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Peters’ written statement submitted to the committee stated that the “The Bureau prioritizes full implementation of the FSA, including publication of the rule for FSA time credits, quickly implementing interim procedures for applying FSA time credits to those who would receive immediate benefit, and on August 31, 2022, we implemented an AutoCalculation Application for FSA time Credits.” She went on to state, “On August 31, 2022, the Bureau completed development of and fully implemented an auto-calculation application for FSA time credits. The automated calculation updates time credits monthly for all those who are eligible. Unit Teams will advise adults in custody during their regularly scheduled Program Review meetings of their current “time credits” balance, along with their updated PATTERN risk level. “ These statements are not true do not reflect the current situation where thousands of prisoners, some who could be released today, languish in prison waiting on a computer computation of their sentence.

In tracking Mr. Ficeto’s situation, his out date remains the same at August 2024. If there were an FSA auto-calculation, it would state that his out date is August 2023, making him eligible to leave prison now for prerelease custody (halfway house / home confinement). Ficeto, like many prisoners I interviewed, said that their case managers know little about when the auto-calculation would be in place and when he will be released.

In a case out of the Northern District of Alabama (Robert S. Stewart v Warden Talladega, Case No.: 1:22-cv-00294-MHH-JHE), a declaration was provided by Susan Giddings, Chief of the Unit Management Section of the Correctional Programs Branch of the BOP, who was charged with providing interim, manual calculations for prisoners under the FSA. That declaration, submitted to the court on April 29, 2022, stated that the BOP expected to “go-live with this application [auto-calculation] in the coming months.” In the Stewart Case the judge ordered the BOP to manually calculate Mr. Stewart’s FSA credits until his release. Stewart was released from BOP custody in July 2022. Had the judge not intervened in that case, Mr. Stewart, Like Ficeto, would still be in prison awaiting a computer program to be completed to calculate his sentence.

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