We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
LUCY, CHARLIE BROWN, FOOTBALL: BOP SAYS FSA CREDIT AUTO-CALC IS HERE
First, it was a Bureau of Prisons official last spring saying that rolling automatic calculation of First Step Act earned-time credits (“FTCs”) would begin August 1, 2022. Then, Director Colette Peters told the Senate Judiciary Committee that the BOP had “completed development of and fully implemented an auto-calculation application for FSA time credits” on August 31, 2022. Then, after a disastrous October recalculation of FTCs, the BOP said on “January 1, 2023, full automation will begin…”
The BOP’s rollout of FTCs, which for the past four years the agency has known would happen, has been promised more often than Lucy Van Pelt has convinced Charlie Brown that she’ll hold the football for him. The latest promise is that inmates will see the new rolling “auto-calc” on January 9, 2023, that is… um… today.
The United States went from being bombed at Pearl Harbor to dropping an A-bomb on Japan faster (44 months) than the BOP has taken to implementing the First Step Act earned-time credits (48 months plus).
A BOP news release last Friday announced that the Bureau is “recalculating FTC for all eligible individuals. The recalculation is expected to be complete in the coming days.” An internal memorandum distributed to halfway house and home confinement overseers last Friday asserted that FTC “recalculation is expected to be complete by January 9, 2023” but warns that “no releases will occur prior to” that date. The BOP appears to expect a large number of releases in the coming weeks.
For anyone who had been denied FTCs because of incomplete Needs Assessments surveys, the BOP granted a “grace period” that ended December 31st to complete the work. Any prisoner who needed to complete a survey but did not is now unable to reclaim previously-lost FTCs. Beginning January 1st, those still needing to complete Needs Assessment surveys cannot earn FTCs until 30 days after they complete those Assessments.
Likewise, inmates who previously declined programs – something that disqualified them from earning FTCs – have a clean slate for earning FTCs after January 1st. But people who decline programs after that date will not be allowed to earn FTCs as long as they remain in “declined” status.
People in halfway houses or on home confinement will not be affected by the changes, and “will retain prospectively estimated FTCs despite declined programs prior to implementation of the automatic calculation or any incomplete Needs Assessment prior to community placement,” according to the press release.
There are still some serious loose ends to the FTC program that the BOP has not addressed. First, the agency is still refusing to apply FTC credits to shorten sentences for those with detainers. Another magistrate judge held two weeks ago that the BOP could not exclude prisoners with immigration detainers from using their FTCs, ruling that the BOP is “required to apply time credits to eligible prisoners who have earned them and cannot categorically make prisoners ineligible for such credits in a manner that contravenes the statutory scheme set forth in 18 USC § 3632.”
Second, the BOP has yet to apply its promise that it would issue guidance to enable the agency to “work on a case-by-case basis with eligible inmates in RRCs [halfway houses and on home confinement] to identify appropriate available programming for them to earn FSA Time Credits…” Inmates in halfway houses and home confinement, especially those doing the transitional drug abuse program required of them for RDAP credit, remain in BOP custody and thus should be eligible for FTCs. The BOP has not announced any plan for fulfilling its statutory obligation to them.
BOP, Update on Calculation of First Step Act Time Credits (January 6, 2023)
BOP, Residential Reentry Center & Home Confinement Resident’s Message Auto-Calculation of Federal Time Credits (January 6, 2023)
Sierra v. Jacquez, Case No 2:22-cv-01509, 2022 U.S.Dist. LEXIS 234525 (W.D. Wash, Dec. 27, 2022)
– Thomas L. Root