BOP Refines FSA Credit Application for Detainers (Again) – Update for March 17, 2023

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

BOP APPLICATION OF FSA CREDITS GETS CURIOUSER…

alicecuriouser230317The BOP continues to refine its application of earned-time credits (FSA credits) under the First Step Act. That is, if “refine” is the word we’re looking for here…

The Death of Detainers: It has always been an article of pre-release faith at the Federal Bureau of Prisons that halfway house and home confinement – known generally as “pre-release custody” – is denied to prisoners who are subject to detainers.

A detainer is a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency or to notify the agency when release of the prisoner is imminent. If you’re serving a federal sentence and have a state sentence to serve after release, the detainer is filed by the state asking that on the day you’re released, you be held until state law enforcement shows up at the prison door to take you into custody for the state sentence.

A detainer may be lodged against you because you have a pending warrant because of an indictment or because you violated state parole or probation. Very common in the federal system, you may have a detainer lodged by Immigration and Customs Enforcement because you are subject to deportation after finishing your federal sentence.

Actually, it makes a lot of sense that a prisoner against whom a detainer has been lodged would not be placed in a pre-release custody situation where he or she could do a runner. That’s why I was a little baffled that the First Step Act said nothing about denying pre-release custody to people with detainers. In fact, denial of pre-release custody to people with detainers has always seemed like a given, with the issue being whether they could benefit from applying FSA credits to shorten their sentences.

As you may recall, the BOP relented in early February, granting people with detainees the right to apply up to 365 FSA credits to reduce their sentencing length by up to a year. This made sense, because shortening a sentence did not set someone with a detainer free to dodge future imprisonment or deportation: it just advanced the day of reckoning for them.

elephantroom230317But there remained the 900-lb elephant no one was talking about: a literal reading of the First Step Act permitted people with detainers to earn FSA credits and required the BOP to apply all of those credits. So what was the BOP to do with a prisoner subject to a detainer who has, say, 730 FSA credits? After applying 365 of them to reduce sentence length by a year, the prisoner still has a year’s worth of credits to apply. If not pre-release custody, where should they be used?

Last week, the BOP quietly issued a change notice to its Program Statement on how FSA credits are to be applied. The change notice alters the Program Statement’s language that “[t]o apply FTCs to prerelease placement, an inmate ordinarily must otherwise be eligible to participate in prerelease custody consistent with limitations as outlined in the Program Statement Community Corrections Center (CCC) Utilization and Transfer Procedure to delete the phrase

“separate from any FSA eligibility criteria”

The Program Statement, Community Corrections Center (CCC) Utilization and Transfer Procedure, excludes “[i]nmates with unresolved pending charges, or detainers, which will likely lead to arrest, conviction, or confinement” from halfway house or home confinement placement.

Now, according to the Change Notice, “in all cases, earned time credits will be applied to prerelease custody (RRC and/or HC) as required by the First Step Act. The First Step Act requires that, if an individual meets the criteria outlined in (c)(1), the credits must be applied when the amount of time credits earned is equivalent to remainder of the prisoner’s imposed term of imprisonment, consistent with the method for calculation described below. Pre-release placement in a Residential Reentry Center (RRC) or Home Confinement (HC) will be based on FTCs other than those credits already applied to early transfer for supervised release.”

[Note: The reference to “(c)(1)” is to 28 CFR § 523.44(c)(1), which provides that

The Bureau may apply earned FSA Time Credits toward prerelease custody only when an eligible inmate has, in addition to satisfying the criteria in paragraph (b) of this section:

(1) Maintained a minimum or low recidivism risk through his or her last two risk and needs assessments…]

So what this means is that the BOP will be sending people with detainers who otherwise qualify to spend FSA credits to halfway houses or home confinement when their credits exceed what can be applied to shortening sentences.  It is hard to believe that large numbers of people facing substantial criminal liability exposure in state cases or who will be deported upon release from BOP custody won’t be in the wind shortly after being put in insecure halfway houses or, even worse, at home.

horton230317One retired BOP official told me that he sees the change quickly soaking up halfway house resources and dramatically slowing inmate placement.  What’s worse, he said, especially where the  inmates being placed in pre-release custody face deportation, the whole thing is a “Willie Horton” waiting to happen. While he may be a little too pessimistic, it’s hard to imagine that the BOP is happy about this (given that inmates in those facilities are still in BOP custody), just as it’s hard to believe that a Congress that excluded so many from FSA credit participation – for example, people convicted of moving fireworks into states where their use is prohibited – intended to undercut the BOP’s traditional and noncontroversial policy against pre-release custody placement for people with detainers.

You’d Think FSA Credits Came Out of the BOP Budget:  Writing in Forbes last week, Walter Pavlo complained that the Bureau of Prisons still has “no clear direction” on FSA credit calculation.

Pavlo observes that “the BOP is now in its third iteration of FSA calculation and this is just as confusing as its first. Now the BOP is stating that prisoners can only earn 10 credits per month for the first year of incarceration.” He notes that Program Statement 5410.01 “clearly states that FSA credit is awarded when the prisoner ‘(i) s determined by the Bureau to be at a minimum or low risk for recidivating; and (ii) has maintained a consistent minimum or low risk of recidivism over the most recent two consecutive risk and needs assessments conducted by the Bureau.”

Pavlo wrote, “That seems straightforward but the BOP is not counting the first assessment done within 30 days of the prisoner arriving at prison and instead, the prisoner can only get to 15 days/month after the first year (or 3 assessments later).” What this means, practically speaking, is that any otherwise-eligible prisoner will lose 18 days of FSA credit he or she otherwise could have earned in the first year of incarceration.

The BOP’s interpretation is puzzling. One would think that an agency complaining of serious understaffing issues would see the award of FSA credits to be a cheap way to help address the problem.  After all, decreasing the number of inmates lessens staffing shortages as surely as does hiring more correctional officers. Pavlo notes that given current cost of incarceration, this strict reading of 18 USC § 3632(d)(4)(A)(ii) costs the agency $23.4 million in extra costs to incarcerate the people least likely to need recidivism-reduction programs.

Pavlo cited a pending District of Maryland case brought by a prisoner attacking FSA credit calculations that can be described only as byzantine. In a 28-page exhibit filed in December 2022, a BOP case manager calculated that Inmate Sreedhar Potarazu had earned 645 credit days. Last week, the BOP revised its calculation, telling the court Sreedhar now had 570 credit days, the difference being only that his prior credits from December 2018 until December 2021 were now only 10 days a month instead of 15. Pavlo complained, “There was no basis for the calculation which did not cite specific policy on which the calculation was based, providing even more confusion among both prisoners and staff across the BOP. Previously, the BOP has used declarations, which were similarly not based on a specific policy, from executives at its Central Office.”

Writing in The Hill, former Acting BOP Director Hugh Hurwitz cited another problem with FSA: “Only people assessed as minimum- and low-risk for recidivism are eligible to earn time credits leading to early release. But those are not the people we should be incentivizing to take recidivism-reducing programs. The ones who truly need these programs are those deemed to be of medium or high risk of recidivating.”

cotton171204The problem is the disincentives, that include medium and high-risk inmates shut out of FSA and the 63-odd categories of offenses excluded not based on science but instead to satisfy political reasons (i.e., Senator Tom Cotton (R-AR), who got the Senate to decide that because § 924(c) defendants had guns, they don’t deserve recidivism reduction). Hurwitz argues, “Aren’t those the people we should be focusing on? But the FSA does not allow these people to earn time credits. In fact, I would argue the FSA actually disincentivizes medium- and high-risk people because why should they take a program that they won’t get time credit for, while the guy next to them is getting credit for the same program?”

BOP, Program Statement 5410.01, Change Notice (March 10, 2023)

Forbes, The Bureau of Prisons Evolving Calculation Of First Step Act (March 8, 2023)

The Hill, First Step Act was only half the job; now a ‘Second Step’ is needed (March 2, 2023)

BOP Declaration (ECF 21-3), Potarazu v. BOP, Case No. 1:22-cv-01334 (D.Md., Dec 12, 2022)

BOP Supplemental Letter, Potarazu v. BOP (ECF 33), Case No. 1:22-cv-01334 (D.Md., Mar 6, 2023)

– Thomas L. Root

Leave a Reply

Your email address will not be published. Required fields are marked *