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THE FSA CREDIT’S BIG WHITE BEAR
Some say that as a boy, Russian author Leo Tolstoy and his brother formed a club. To be initiated, the aspirant was required to stand in a corner for five minutes and not think about a big white bear.
[Some say it was first raised by Fyodor Dostoevsky’s Winter Notes on Summer Impressions, an 1863 account of his travels in Western Europe. Choose whichever origin story you like. As crusty old Judge Miller used to lecture us young lawyers, “you pays your money and you takes your chances”].
Last week, the Dept of Justice issued its annual report on the First Step Act, and puts both Tolstoy and Dostoevsky to shame. The Report manages in 50 pages to explore the FSA’s nooks and crannies without ever thinking about (let alone mentioning) the Act’s big white bear: Prisoners are amassing large numbers of FSA credits that they are being denied their right to use because the BOP’s sloth in expanding halfway house capacity has resulted in there simply being no room in the halfway house inn.
There’s a lot in the Report worthy of mention, and I intend to cover more of it this week. But first, a discussion of what the Report does not say.
FSA credits (previously called “ETCs” for “earned-time credits” or “FTCs” for “federal time credits”) are awarded to prisoners for successful completion of evidence-based recidivism reduction programs (“EBRRs,” in the BOP’s acronym-heavy bureaucratic speak). Such credits entitle prisoners to one of two benefits. First, the BOP may (but is not required to) apply up to 365 credits to shorten the inmate’s sentence by up to a year. Second, the BOP shall use any credits not used to shorten the sentence to place the prisoner in a halfway house or home confinement (known as “residential reentry centers” or “RRCs”).
This second option, enshrined in 18 USC § 3624(g)(2), says that “[a] prisoner shall be placed in prerelease custody as follows…”
The problem is that there isn’t nearly enough halfway house space to accommodate people now entitled to longer stays. It’s not like no one saw this coming: inmates have been complaining in my email for a year that they are being denied use of their FSA credits because of a lack of halfway house space. Walt Pavlo wrote about it in Forbes six months ago. NBC reported on it last month.
Unsurprisingly, the BOP has fought hammer and tong against any suggestion that it was violating First Step, arguing in courthouses across America that despite the Act, it had the discretion to decide whether the FSA credits earned by an inmate were gold bullion or play money.
This brings us to Alphonso Woodley, a BOP “adult in custody” who had amassed a pile of FSA credits (something over 450, even after 365 had been applied to reduce his sentence by a year). The BOP, however, told him he couldn’t be sent to an RRC in the Orlando, Florida, area because there was no bed space. Al said to the BOP, “That’s your problem,” and filed a 28 USC 2241 habeas corpus action.
The BOP rolled out its tired refrain that designation of prisoners to RRCs was its exclusive prerogative. The district court conceded that this was generally true, but where a prisoner had a statutory right to placement, the BOP had no choice. The First Step Act guaranteed Al designation to an RRC under 18 USC 3624(g)(2) as long as he had credits to spend and met the statutory criteria. Everyone agreed Al met the criteria. The judge called that game, set and match.
He wrote that the BOP’s
excuse for delaying petitioner’s transfer to an RRC is that bed space is not available in a particular RRC until September. No such condition concerning bed availability is included among the requirements for eligibility under § 3624(g), however, and thus immediate placement in prerelease custody is nevertheless required under § 3632(d)(4)(C)… That statute uses the mandatory “shall” (as distinguished, for instance, from the provision in § 3624(g)(3) that the BOP “may” transfer a prisoner to early supervised release). Numerous courts have held that the BOP has no discretion to delay or refuse transfer of an eligible prisoner to prerelease custody, which transfer is mandatory.
The court said that the BOP is required by the Act to “ensure there is sufficient prerelease custody capacity to accommodate all eligible prisones,” suggesting that the Bureau’s failure to plan ahead does not excuse its noncompliance with the law. To the court, it was fairly simple:
“Because the BOP’s failure to transfer petitioner to prerelease custody violates federal law, the Court grants the petition for relief.”
The BOP probably doesn’t like that big white bear, the fact that it is required to deliver on RRC placement despite the agency’s utter failure over five years to ensure that there was enough RRC space. But as Dostoevsky or Tolstoy (or both) figured out, just because you can force yourself to not think about it doesn’t mean it isn’t there.
Dept of Justice. First Step Act Annual Report – June 2024
Woodley v. Warden, Case No 24-3053, 2024 U.S. Dist. LEXIS 87521 (D. Kan. May 15, 2024)
– Thomas L. Root
Justice Ketanji Brown Jackson, the most experienced Justice on the court in criminal defense work, wrote in a concurring opinion that “the type of mental-state evidence that