We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

FSA CREDIT BLUES

BOP Cries ‘Uncle’ On Detainer FSA Credit: As of a week ago, at least six district courts had granted habeas corpus petitions filed by prisoners denied use of FSA credits because they had detainers.

FSA credits, for those folks tuning in late, are credits awarded to federal prisoners under the First Step Act for the prisoners successfully completing Bureau of Prisons programs that have been determined to reduce the risk of recidivism, such as GED classes, anger management, parenting skills, and drug/alcohol rehabilitation.  Prisoners may use the credits to reduce their sentences by up to one year or to get more time in halfway house or home confinement at the end of their sentences.

Despite the fact that Congress wrote detailed instructions into the law about what prisoners were to be excluded from earning FSA credits, the BOP took it upon itself to decide that other classes of prisoners – specifically those with detainers on file from state authorities or federal immigration officials – could not earn FSA credits. Unsurprisingly, a number of inmates filed petitions for habeas corpus with federal courts challenging the BOP’s unauthorized tinkering with the statutory scheme.

Last week, facing the reality that the detailed eligibility requirements Congress wrote into the FSA credit program prevents the BOP from adding its own spin to the standards as a matter of law, the Bureau abandoned its efforts to deny people with detainers the right to reduce their sentence length with FSA credits.

In a supplement to the November 2022 program statement on FSA credits issued last Monday, the BOP issued an updated P.S. 5410.01 deleting requirement that inmates have no detainers or unresolved pending charges, to include unresolved immigration status, in order to use FSA credits to shorten their sentences. Prior to the BOP program statement on FSA credits issued last November, the BOP had ruled that people with detainers or unresolved state charges were ineligible for any FSA credits. In November, the BOP moderated its position, holding that people with detainers could earn FSA credits but not spend them unless they cleared up the detainers.

Last week’s announcement wipes out any BOP resistance to people with detainers getting to apply up to 365 FSA credit to reduce their sentence length by up to a year. The only people ineligible now because of detainers are noncitizens “subject of a final order of removal under immigration laws.” And that is practically no one in the system.

A detainer will still prevent inmates from using FSA credits for halfway house or home confinement. Whether First Step’s detailed exclusions from credit override the BOP’s traditional refusal to give halfway house and home confinement to people with detainers has yet to be decided.

PATTERN Recidivism Score Frozen on Prerelease Custody: Last week’s changes also clarify that if a prisoner has had two regular program reviews (which occur annually or more often as a prisoner approaches the end of the sentence) at which the PATTERN score was reviewed before going to halfway house or home confinement, he or she will not be reassessed again. In other words, the recidivism score you take out the prison door with you will remain yours as long as you’re in BOP custody (which you are at halfway house or on home confinement… If you go to prerelease custody before you’ve had two reassessments, however, you’ll be reassessed while you’re in halfway house or home confinement.

This should not be terribly significant unless the BOP is gearing up to start awarding FSA credits for programming and productive activities while in halfway house or on home confinement. The BOP promised this over a year ago, but nothing has happened yet to implement it.

Look Ma, No Hands!: The changes also provide that “FSA Time Credit Assessments (FTC Worksheets) will be automatically uploaded to the Inmate Central File during each auto-calculation. Inmates will be provided a copy of the most recent FTC Worksheet during regularly scheduled program reviews.”

There’s some advantage to taking the input and uploading away from case managers, in that it assures uniformity and correct calculation. On the other hand, as a lot of people have already experienced, it complicates and extends the process for getting errors corrected.

Groundhog Day at DSCC: Speaking of errors, a memorandum from the BOP’s administrator of the Residential Reentry Management Branch issued last week announced yet another nationwide re-calculation of FSA credits over the past weekend.

The memo predicts “several hundred immediate releases affecting community placements, as well as the need to advance [halfway house and] home confinement dates and initiate new referrals to the Residential Reentry Office.”  Those releases should be happening between this morning and Wednesday.

The automatic calculation of FSA credits was first promised August 1, 2022, then was effective October 1, 2022, only to collapse in a heap of withdrawn credits and miscalculated dates. It was then to be fixed by January 9, and then January 23, and then February 6…

I keep hearing Sonny and Cher singing…

P.S. 5410.01CN, First Step Act of 2018 – Time Credits: Procedures for Implementation of 18 U.S.C. § 3632(d)(4) (February 6, 2023)

BOP, Retroactive Application of First Step Act Time Credits (February 9, 2023)

– Thomas L. Root