Tag Archives: earned time credits

Front-End Loader – Update for October 28, 2025

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

BOP ANNOUNCES IT WILL FRONT-LOAD FSA TIME CREDITS

The government shutdown is entering Day 28 with no end in sight. But not everything at the Bureau of Prisons has ground to a halt. Last week, the agency announced a technical change in how it calculates the end of a prisoner’s sentence that could have a major, beneficial effect on inmates.

The date of a prisoner’s release is significant to the BOP for everything from placement in an appropriate facility to eligibility for programs to the date a prisoner goes to a halfway house or home confinement under 18 USC § 3624(c) (the Second Chance Act). The BOP has always calculated what it calls the “statutory” sentence by assuming that the prisoner will earn every day of good-conduct time (54 days a year) possible under 18 USC § 3624(b).

Of course, prisoners do not always earn every day of good time. They lose it for rule infractions (something that may be epidemic with the number of cellphones in the system, where being caught with one is a high-severity prohibited act).

The fact that inmates may lose good-conduct time during their sentences has never deterred the BOP from its practice of assuming that a prisoner will earn 100% of possible good time. Nothing wrong with that: it’s a rational policy that makes release planning possible. But until now, the BOP has steadfastly refused to make the same reasonable assumption that a prisoner will earn all of the First Step Act credits (FTCs) available to him.

Last week, BOP bowed to common sense, announcing that it will now anchor its inmate management decisions to a new metric called the FSA Conditional Placement Date (FCPD), essentially front-loading FTCs in the same way it front-loads good conduct time.

Up to now, the BOP has only used a Projected Placement Date that reflected the credits earned up to the date of the PPD’s calculation, while not assuming that the prisoner would earn any FTCs after that date. The new FCPD date will assume that an inmate will continue earning FTCs every month, just like good conduct time, and will thus represent the projected point when an inmate — based on earned time credits — should be eligible for placement in halfway house or home confinement, or released. The BOP will now direct staff to use the FCPD date as the foundation for decisions about security/custody classification and facility placement.

“It’s a small technical change on paper but a major cultural shift in practice,” Walter Pavlo wrote last week in Forbes. “By using this date to guide decisions, the Bureau is effectively saying that the earned time credits aren’t just theoretical—they are the organizing principle for how and when people move through the system.”

Use of FCPDs should lead to faster inmate placement at lower custody levels and placement in programs such as the residential drug abuse program.  Pavlo said that one BOP insider estimated that over 1,500 people would be eligible to move from low-security facilities, which are near capacity, to minimum-security camps that have ample space. Additionally, reliance on FCPDs will alleviate last-minute transfers to halfway house or home confinement, which cause delays in paperwork and inmate housing arrangements. As Pavlo put it, “By focusing on the Conditional Placement Date months in advance, everyone gains time to prepare.

The FCPD change should ensure that FTCs have real meaning, connecting prisoner success to the date on an inmate’s worksheet for prerelease planning. “This change reflects our continued commitment to managing the inmate population in a way that is both fair and consistent with the law,” said Rick Stover, Special Assistant to the Director. “By using Conditional Placement Dates, we are improving operational efficiency, supporting our staff, and honoring the intent of the First Step Act.”

Rabbi Moshe Margaretten, President of the prison-reform advocate Tzedek Association, called the development a “truly monumental” moment for prison reform. “This reform will change thousands of lives—allowing men and women who have worked hard to better themselves to move into lower-security settings and reconnect with their families much earlier.” 

BOP, A Win for Staff and Prison Reform (October 21, 2025)

Forbes, Bureau Of Prisons Makes Changes To First Step Act Calc (October 21, 2025)

Belaaz, Major Bureau of Prisons Reform After Years of Advocacy by Tzedek, ‘Monumental Step’ (October 21, 2025)

 

~ Thomas L. Root

Enticing But Evanescent BOP Cheese – Update for June 20, 2025

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

BOP DANGLES THE FIRST STEP CHEESE AGAIN

So, let’s see… the Federal Bureau of Prisons first proposed that a prisoner would have to spend eight hours in one of its program classrooms in order to earn one day of First Step Act time credit (FTC) to reduce her sentence or get an extra day of halfway house. Then it reversed course, holding that an inmate would receive one day of FTC credit for every day she was enrolled in the course.

Then the BOP said that when a prisoner’s FTC credits equaled the number of days left his sentence, he would be sent to a halfway house. But wait, that was only when the halfway house finally said he could come, however long that delay might be.

The BOP said that a prisoner was entitled to as much halfway house or home confinement time as she could earn in FTCs, and on top of that, she could get up to a full year in halfway house under the Second Chance Act. But then the agency said that no one could get more than 60 days in halfway house under the SCA, no matter what the law said. But then, the BOP said that was wrong, and prisoners could get a full year under the SCA. After that, the BOP decided that any prisoner with a full year’s worth of FTCs was ineligible to get any SCA time in a halfway house.

Got it?

Not yet, because in its latest policy reversal/about face/ tweak, the BOP this week decided that its last pronouncement was “inoperative,” as Nixon White House spokesman Ron Ziegler famously said. Now, BOP Director William K. Marshall III has announced “the dawn of a new era,” a restoration of “integrity and fiscal responsibility to the federal prison system.” This of course is a tacit admission that integrity and fiscal responsibility have been wanting at the BOP, akin to the emperor acknowledging that yes, indeed, he is naked as a jaybird.

Marshall said in a press release that henceforth

• FTCs and SCA eligibility will be treated as cumulative and stackable, “allowing qualified individuals to serve meaningful portions of their sentences in home confinement when appropriate.”

• The BOP’s Conditional Placement Dates — “based on projected credit accrual and statutory timelines — will drive timely referrals, not bureaucratic inertia.”

• Stable housing and “community reintegration readiness, not past employment,” will guide placement decisions.

• Halfway house bed capacity will not be a barrier to home confinement placement when a prisoner is statutorily eligible and “appropriate for such placement.”

The press release quotes Marshall as saying the new policies “mark[] a bold shift from years of inaction toward a policy rooted in public safety, fiscal responsibility, and second chances. By empowering the agency to release more people who are ready to return to society, we not only save taxpayer dollars, we strengthen families, ease overcrowding, and build safer communities.”

The latest policy flip-flop comes on the heels of Marshall’s appointment, the week before, that BOP veteran Richard Stover has been appointed “to serve in furthering the implementation of the First Step Act.”

That announcement did not specify Stover’s title, place in the chain of command, or precise duties. Nevertheless, in the six plus years since passage of First Step, the BOP has not designated any management-level employee as being responsible for BOP compliance with the law. Marshall said that appointment of Stover to oversee First Step implementation and Josh Smith as Deputy Director “reflect a critical investment in strengthening our leadership infrastructure to better support staff, improve operations, and fully implement the First Step Act—the cornerstone of our path to safer facilities and stronger outcomes.”

Stover has 28 years with the Bureau, starting as a case manager, rising to Warden and ultimately serving as a Senior Deputy Assistant Director. Most recently, Stover ran the Designation and Sentence Computation Center in Grand Prairie. Marshall said in his announcement of the appointment that Stover’s “work developing the First Step Act Time Credits policy and his leadership at institutions like FCI Danbury demonstrate his deep expertise in executing complex reforms with clarity and precision.”

All of this is great stuff, but like Charlie Brown with Lucy holding the football, we’ve been here before. It has always been baffling to me that the BOP, chronically broke and understaffed, wasn’t hustling people with accumulated FTCs into inexpensive home confinement as quickly as possible under 18 USC 3624(g)(2). Under the SCA, the BOP can only place a prisoner in home confinement for 10% of an inmate’s sentence (up to six months maximum). But 100% of a prisoner’s FTCs can be used for home confinement.

Skeptics (and heaven knows I am one) note that even the press release contains just enough wiggle room to let the BOP take away everything it has given. Home confinement will be allowed for “qualified individuals,” but who is “qualified” and under what criteria (and decided by whom) is opaque. After all, prisoners must be “appropriate for such placement,” whatever that means.

For that matter, promising that statutory eligibility “will drive timely referrals, not bureaucratic inertia,” has a chicken-in-every-pot flavor to it. Just like no one asked where all those chickens were going to come from, the idea that people are going to go to halfway houses that won’t accept them has a delusional quality to it that matches its lofty blandishment.

Walter Pavlo, writing in Forbes, observes:

The memorandum is going to be well received by inmates and their families. However, the BOP has a history of slowly implementing programs that favor inmates but quickly adopting restrictions that keep them in prison longer. The Trump administration continues to be one that looks for results among those appointed to serve and it will be up to BOP leadership to deliver on this one as the directive is clear. It is the implementation of this directive that will be the next challenge.

Challenge, indeed. My take on it is a little less diplomatic: The cheese has been dangled in front of the inmate mice again. Let’s see how soon it is moved this time.

BOP, Bureau of Prisons Issues Directive to Fully Implement First Step Act and Second Chance Act (June 17, 2025)

Forbes, Bureau of Prisons Retracts Rule, Truly Expands Halfway Houses (June 17, 2025)

BOP, Message from the Director (June 5, 2025)

– Thomas L. Root

Better Late Than Never, BOP Comes To The FTC Party – Update for October 7, 2024

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

IT’S ALL CONDITIONAL: BOP ANNOUNCES CHANGES IN FSA CREDIT DATES

One of the recurring problems with the Federal Bureau of Prisons’ reluctant implementation of the First Step Act’s system for granting inmates credit for completion of programs designed to reduce recidivism is this: Prisoners are to earn credits as long as they are in BOP custody – including while in halfway house or home confinement – much like good conduct time credit under 18 USC § 3624(b) – but the agency has up to now adopted no system that would capture those latter FSA time credits (FTCs) and apply them to the benefits to which 18 USC § 3624(g) entitles inmates.

bureaucracy241007Instead, the BOP has been refusing to grant FTCs to people within 18 months of their release. It has been as though your employer decided not to pay you for your last month working for him because figuring out your final checks is just too much effort.  Your bureaucracy in action.

Two months ago, however, prisoners’ Sentence Computation forms suddenly included a line for “Conditional Placement Date.”  But nearly as soon as the forms were available, the BOP withdrew the date, claiming an error in calculation. For the last two months, prisoners were denied any documentation of their FSA credit calculations pending further work by the BOP on the subject.

Last Friday, the BOP announced that it will now start calculating three “conditional” dates for inmates. When a prisoner first enters the system, the BOP calculates a release date premised on the inmate earning all of the good conduct time under 18 USC § 3624(b) that he or she could possibly get. Now, the same will be done for FTCs.

The BOP will calculate three dates on a prisoner’s sentence comp sheets:

• FTC Conditional Placement Date: The date when an inmate may be eligible for halfway house or home confinement based on the application of his or her maximum potential FTCs.

• Second Chance Act (SCA) Conditional Placement Date: The date when an inmate may be eligible for release under the SCA, which allows for up to 12 months halfway house placement. SCA eligibility is based on an individualized assessment by BOP staff. Nothing is promised, with SCA placement being anywhere from zero months to a full year.

• Conditional Transition to Community Date: This date is the earliest possible date for transfer from prison to halfway house or home confinement, based on a combination of FTCs and SCA eligibility.

The BOP promises that staff will use these new conditional dates to make release decisions starting 17-19 months before the Conditional Transition to Community Date. The BOP said that “[f]or eligible individuals, this could include recommendations for direct home confinement, bypassing [halfway house] placement where appropriate.”

funwithnumbers170511The BOP warns that “FSA Conditional Release Date is a projected date based on various factors, including continued eligibility for FTCs, participation in programs, and eligibility and appropriateness under SCA.”

Writing in Forbes this past weekend, Walter Pavlo recounted the BOP’s sorry record on FTC implementation, having “been plagued with computer problems to calculate the credits, inconsistent interpretation of the First Step Act and poor communication to the line staff at prisons who are tasked with implementing the programs. The result is that the BOP has held prisoners in institutions longer than necessary and in some cases held them beyond their release date.”

So, hypothetically, someone beginning a 120-month sentence on Jan 1, 2024, would have a good time release date of about July 1, 2032. The first 365 days of FTCs she earned would move that date to July 1, 2031. Between the start of her sentence and July 1, 2031, she would earn 1305 FTCs. After using 365 of those FTCs to reduce her time by a year (under 18 USC § 3624(g)(3)), she would have 940 days left. Those 940 days would let her transition to halfway house or home confinement on about Nov 3, 2028. That date should be her FTC Conditional Placement Date.

Under the Second Chance Act, she could get an additional year in halfway house. That would make her Conditional Transition to Community Date about Nov 3, 2027.

It is close to misfeasance that it has taken the BOP nearly six years from the passage of the First Step Act to finally figure out a system that a kid with an Excel spreadsheet could have accomplished in under an hour. What’s worse is that so many prisoners have been denied their full FTC benefit by an agency hidebound by stasis and contempt for the people entrusted to its custody

beating241007Note that while BOP Director Peters’ kinder, gentler BOP calls inmates “adults in custody,” I do not. When the people locked up in BOP institutions are treated like persons in custody instead of inmates, prisoners, or numbers, I will call them AICs.  For now, the BOP treats them with contempt. Calling them AICs doesn’t change that.

BOP, FBOP Updates to Phone Call Policies and Time Credit System (October 4, 2024)

Forbes, Bureau of Prisons Announces Updates To First Step Act Calculations (October 5, 2024)

– Thomas L. Root

Ending the Summer With the Rocket’s Red Glare – Update for September 29, 2023

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

rocket190620This weekend marks the end of summer, maybe not astronomically or meteorologically, but Monday the Supreme Court begins its next term, called “October Term 2023.”  Fall is here, but first, we’re going to end the summer with a short rocket:

DOES NOT COMPUTE

The BOP announced in late 2022 that it was developing a calculator to project the maximum number of earned-time credits – now being called FSA credits – a prisoner could earn at the outset of a sentence. That way, a prisoner would know upfront his or her projected release date and the date that halfway house or home confinement could begin.

notcompute230929You may have been skeptical, recalling that in 2022, the BOP promised monthly auto-calculation of FSA credits (with more launch dates than North Korea’s missile program) that never happened, either. August became September became October, then November, and finally January. Writing in Forbes magazine last week, Walter Pavlo reported that the BOP has likewise been unable to determine likely dates for prerelease custody, depriving inmates of benefits of FSA credits to which they are entitled by law because the BOP is unable to scramble to arrange halfway house or get residence approval for home confinement.

What’s worse, Pavlo reported, “there is no date for when this calculation issue will be addressed. Until then, prisoners continue to line up outside of their case manager’s office to plead their case that their release date is closer than what the BOP is calculating. As one prisoner told me, ‘My case manager said, ‘the computer tells your release date and it could be tomorrow, or next week, or next year, it does not matter to me. But I don’t have the ability to make that decision myself’.”

The BOP Office of Public Affairs told Pavlo that “credits cannot be applied to an individual’s projected release date until they are actually ‘earned.’ Further, as an individual can earn 15 days of time credits, and as there is no partial or prorated credit, it is feasible that earned credits could be greater than the number of days remaining to serve. However, the earned time credits are ‘in an amount that is equal to the remainder of the prisoner’s imposed term of imprisonment.’ Simply stated,” Pavlo said, “the credits are earned, and they cannot exceed the remaining time to serve at the point they are earned.”

bureaucracybopspeed230501The BOP’s position, according to Pavlo, is that “ordinarily, the applicability of time credits towards pre-release custody will be limited to time credits earned as of the date of the request for community placement. However, in an effort to ensure eligible adults in custody receive the maximum benefit, the agency is developing additional auto-calculation applications that will calculate a “Conditional FSA Release Date” and an “Earliest Conditional Pre-Release Date” which would include the maximum FTC benefit.”

Basically, the BOP is still trying to figure out how to implement a First Step program it knew about 5 years ago.

Forbes, Bureau of Prisons’ Challenges With First Step Act Release Dates (September 17, 2023)

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SCHUMER MAY ADD CRIMINAL JUSTICE PROVISIONS TO NEWLY-REFERRED MARIJUANA BILL

Fresh from getting the Senate Senate Majority Leader Charles Schumer (D-NY) indicated yesterday that he may attach criminal justice reform language to the cannabis banking bill that just passed the Senate Banking Committee on Wednesday.

Speaking on the Senate floor, he said he was “really proud of the bipartisan deal we produced,” a reference to the Secure and Fair Enforcement Regulation Banking (SAFER) Act, S.1323. And while the legislation will be brought to a full Senate vote “soon,” Schumer promised to include “very significant criminal justice provisions” in it, Marijuana Moment reported.

Schumer didn’t say what those reforms might be noting he would “talk more about that at a later time.”

marijuana-dc211104“Attaching any additional provisions – let alone ones on criminal justice — could imperil SAFER‘s chances of winning Senate approval, according to the finance website Seeking Alpha. “Prior attempts to add criminal justice language into marijuana-related legislation has led to controversy.”

In May, Schumer said a marijuana banking bill would have social justice reforms and criminal expungement language attached. And in 2022, Sen. Cory Booker (D-NJ) said he would favor a “SAFE Banking Plus” bill that includes criminal justice reforms.

Marijuana Moment, Schumer Touts Bipartisan ‘Momentum’ Behind Marijuana Banking Bill That He Plans To Bring To The Floor ‘Soon’ With More ‘Criminal Justice Provisions’ (September 28, 2023)

Seeking Alpha, Schumer indicates he may tie in criminal justice to marijuana banking bill (September 28, 2023)
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$117 A DAY WON’T BUY YOU PERFORMANCE

Maybe that’s all the performance you can expect for $117 a day. That’s what the BOP said last week is the current average cost of incarceration based on fiscal year 2022 data. The average annual COIF for a Federal inmate housed in a halfway house for FY 2022 was $39,197 ($107.39 per day).

BOP, Annual Determination of Average Cost of Incarceration Fee (COIF), 88 FR 65405 (September 22, 2023)
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HAZELTON BOP UNION SAYS EMPLOYMENT STANDARDS HOBBLE STAFFING AS SHUTDOWN LOOMS

Picket signs waved all day long last Friday as members of the FCC Hazelton local 420 union representing the prison say the staffing shortage has gotten so bad officers have to work 16-hour shifts 4 to 5 days a week, with stringent employment standards partly to blame.

Union President Justin Tarovisky says the prison is currently short-staffed by more than 80 corrections officers. He complained that the union held a recruiting event where they took in 60 applicants, but the BOP office in Grand Prairie, Texas, that oversees these applications has been disqualifying applicants for superficial reasons.

hazeltonpicket230929“A lot of that common sense hiring has left this agency,” Tarovisky told WDTV, a Weston, WV, television station. “They’re handcuffing these applicants that are applying and disqualifying them for simple errors and it’s not our staff that’s disqualifying them, we can’t even get them in the door to interview them because they’re being disqualified by people halfway across the country.”

There have been only 10 new staff hired at Hazelton this year despite the desperate need with some other prison staff members having to take on the duties of corrections officers. Tarovisky says the prison needs to be able to hire applicants directly to keep officers and community members safe.

The grueling hours are taking a toll on prison staff wellbeing and many are feeling the impact at home. A Dept of Justice Office of Justice Programs report in 2020 found that the suicide rate of corrections officers is seven times higher than the national average.

From the “You Think Things Are Bad Now” department: ABC News reports that all 34,537 BOP employees would still have to go to work if the government closes for lack of funding on Sunday, leaving them without a paycheck during the period of the shutdown.

“A shutdown is absolutely devastating for our members,” Brandy Moore-White, the president of CPL-33, told ABC News. “Not only do our members put their lives on the line every single day to protect America from the individuals incarcerated, but now they’re having to go out… and figure out how they’re going to pay their bills and how they’re going to feed their families.”

All government employees are guaranteed pay during the time of the shutdown, but that money is not paid until after the shutdown ends. If you’re living paycheck to paycheck, the promise of money next week does not buy you groceries today.

WDTV, Hazelton Prison corrections officers protesting hiring practices (September 22, 2023)

ABC News, Government shutdown would be ‘devastating’ for Bureau of Prisons employees (September 27, 2023)

– Thomas L. Root

BOP Earned Time Credits Still a Mess – Update for January 19, 2023

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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 AUTO-CALC CREATES HAVOC (AGAIN)

After a year of fits and starts, the Federal Bureau of Prisons last week rolled out its latest iteration of the automatic calculation of inmates’ First Step Act credits. Some prisoners were released (or at least saw their time cut) due to the new calculations. But it seems a larger number still was left confused and unhappy, according to Forbes.

release161117On the Early Release from Federal Prison/Cares Act/First Step Act Facebook page, one commenter reported that his halfway house reported “a glitch in the system and that to give them until the 18th to have it corrected, but they are aiming for the end of this week.” On January 12, Bruce Cameron of Federal Prison Authority reported on the Facebook site that the BOP was “aware of a couple of issues that probably caused all the problems most are having… people being marked as ineligible who are eligible and have been eligible the whole time” and “a glitch that is causing people to be earning 10 days a month instead of 15 days a month. This would be the reason why you wouldn’t see all your time you are supposed to have.”

Yesterday, Cameron told his Facebook followers, “For those impacted by the ‘glitch’ put your patience hat on for February 6!”

Writing in Forbes, Walter Pavlo reported that “while many prisoners were released this week because of the new calculation, many of them would have gone home earlier if the BOP had correctly implemented the FSA calculator much earlier… The issue that is causing much of this problem is two-fold; a correct interpretation of the FSA that most everyone forgot about and yet another error in the FSA calculator.”

Pavlo said that because FSA credits can only be applied when the credits earned equals or exceeds the amount of time remaining on the sentence, “Those prisoners who had credits that suddenly disappeared really still have them, they just cannot be applied yet because they have more days remaining on their sentence than they do FSA credits.”

computerglitch230120Pavlo said the second problem is whether a prisoner earns 10 days or 15 days of FSA credit a month. Subsection (d)(4)(A)(ii) of 18 USC 3632 says that prisoners with a minimum or low PATTERN score “who, over 2 consecutive assessments, has not increased their risk of recidivism, shall earn an additional 5 days of time credits for every 30 days of successful participation” in programming. The BOP interprets this to mean that prisoners must score low or minimum for two assessments before they can earn 15 days rather than 10.

Even if this interpretation is right, something that is less than clear, the new auto-calc program did not detect the second PATTERN risk assessment score, according to Pavlo, “so prisoners received only 10 credits for each month of programming rather than 15 after the second PATTERN score. It is a problem that the BOP is going to correct but there is no timeline for that fix.”

Forbes, Working Out The Bugs On The Bureau Of Prisons’ First Step Act Calculator (January 12, 2023)

Facebook, Early Release from Federal Prison/Cares Act /First Step Act public group (January 12, 2023, and January 19, 2023)

– Thomas L. Root

Here We Go Again On FSA Credits – Update for January 9, 2023

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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…”

lucycharliebrownfootball230109The 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.

youcantdothat230109There 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

BOP’s Got Nowhere to Go But Up – Update for January 3, 2023

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THE BOP’S NEW YEAR RESOLUTIONS

peters220929Director Colette Peters has been at the Bureau of Prisons now for five months. As she begins her first complete calendar year at the agency, she’s not lacking for material when she compiles a list of new year resolutions.

Starting my ninth year of writing about the BOP – and being an average joe who is happier suggesting resolutions to other people than I am adopting resolutions of my own – I have some suggestions for Director in the unlikely event her list is too short.

(1) Change the Culture: The BOP has nowhere to go but up. Last year, the Partnership for Public Service‘s 2021 rankings of the best places to work in the federal government ranked the BOP in 431st place. This was out of 432 agencies. The BOP ranked dead last in 8 of 15 categories, including “effective leadership,” “innovation” and “teamwork.”

BOPad230103(2) Hire people: Walter Pavlo observed last week that “hiring new staff in this environment is difficult.” National Council of Prison Locals president Shane Fousey called it, “a staffing crisis of epic proportions.” Staffing issues lead to inconsistent and nonexistent programming, poor healthcare, loss of opportunities for sentence credit and community confinement, and institutional safety issues.

Of course, you cannot hire the people you need to work at an agency that is feeding at the bottom of the federal employment hierarchy.  No leadership, no teamwork, no innovation… no employees.

Just last week, Pavlo wrote that an FCI Miami inmate died choking on his own blood while in a COVID quarantine. His cellmate (apparently, quarantine was in the SHU), pounded and screamed for help for 90 minutes before a CO – who was responsible for multiple housing units, came along for count. Kareen Troitino, the local CO union president, said of the incident, “As a cost savings initiative, the Agency is jeopardizing lives by forcing one officer to supervise two units. This loss of life would have never happened if we had one officer in each building as we had in the past.”

(3) Clean Up Internal Investigations: Last month, the Senate Permanent Committee on Investigations found that BOP employees had abused female prisoners in at least 19 of the 29 federal facilities over the past decade. In June 2021, the Dept of Justice revealed that as of 2018, inmates reported 27,826 allegations of sexual victimization, or a 15% increase from 2015. Of the 27,826 allegations, over half were staff-on-inmate sexual abuse. The BOP has over 8,000 internal affairs misconduct allegations that haven’t been investigated.

SIS230103The misconduct ranges from BOP leaks and lies that placed Whitey Bulger in general population at USP Hazelton (where he survived for under 12 hours) to ”corruption at the US Penitentiary Atlanta in Georgia to the Dept of Justice’s failure to count almost 1,000 deaths in custody across the country, to abusive and unnecessary gynecological procedures performed on women in Dept of Homeland Security custody,” according to Sen. Jon Ossoff (D-GA).

(4) Use the Tools Congress Gave You: Stephen Sady, Chief Deputy Federal Public Defender for the District of Oregon, recently wrote in the Federal Sentencing Reporter that the Sentencing Commission should fulfill its statutory obligation to make recommendations regarding correctional resources and programs. He told Walter Pavlo that “the BOP has failed to adequately implement critical legislation to improve the conditions of people in prison” and since the BOP hasn’t acted, the Sentencing Commission should.

The BOP could address staff shortages and morale problems by getting more people to home confinement, halfway house and early release with the need for USSC oversight, Pavlo also suggests the BOP could expand eligibility and availability of RDAP sentence reductions, “eliminate computation rules that create longer sentences… Implement broader statutory and guideline standards to file compassionate release motions any time extraordinary and compelling reasons exist… [and f]ully implement the First Step Act’s earned time credit program.’ Pavlo notes that “[n]o new legislation would be required for any of these reforms.”

nothingtosay230123(5) Practice Openness: There’s an old admonition about not picking a fight with someone who buys ink by the barrel. It’s not so much ink these days, but a blemish on Peters’s honeymoon as director is the BOP’s continued awkward of the Ft. Worth Star-Telegram’s questions about allegations of systemic abuse at the women’s FMC Carswell.

Although the Star-Telegram rated its reports of Carswell mismanagement and misconduct as one of its most important stories in 2022, the newspaper complained again this week that BOP “administrators have declined interview requests, given blanket statements in answer to questions and failed to provide detailed plans about how the Bureau of Prisons intends to address the problems.”

Associated Press, Biden signs bill forcing the federal Bureau of Prisons to fix outdated cameras (December 27, 2022)

Partnership for Public Service, 2021 Best Places to Work in the Federal Government rankings

Forbes, A Federal Public Defender Challenges U.S. Sentencing Commission To Help Fix The Bureau Of Prisons (December 28, 2022)

Forbes, Federal Inmate Dies Choking On His Own Blood While Locked In Cell At FCI Miami (December 29, 2022)

Amsterdam News, Senate committee finds widespread employee on inmate sex abuse in federal prisons (December 26, 2022)

Business Insider, Inside the federal West Virginia prison where gangster Whitey Bulger was beaten to death (December 31, 2022)

Ft Worth Star-Telegram, Fort Worth’s biggest stories of 2022: What will you remember most about this year? (December 31, 2022)

– Thomas L. Root

A Short Rocket From (Or To) The BOP – Update for December 9, 2022

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

Today we offer our occasional “short rocket” of BOP news – not all of it good – from the past weeks.

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EX-WARDEN GARCIA CONVICTED, FSA CRITICISM, PRIVATE PRISONS CLOSE, DOJ BLASTS BOP OVER WHITEY BULGER

AUSA Gets Sex Predator Warden: The former warden of FCI Dublin, a federal women’s prison southeast of San Francisco,  was convicted in Oakland federal court on Thursday of molesting inmates and forcing them to pose naked in their cells.

sexualassault211014Ray Garcia was found guilty of all eight charges and faces up to 15 years in prison. He was among five workers charged with abusing inmates at Dublin, who claimed they were subjected to rampant sexual abuse including being forced to pose naked in their cells and suffering molestation and rape.  The trial was noteworthy for the government arguing to jurors that they should believe inmates and former inmates over Garcia, perhaps one of the few examples in recent history of the government believing inmates over guards.

Garcia, 55 years old, retired from last year after the FBI found nude photos of inmates on his government-issued phone. Garcia was charged with abusing three inmates between December 2019 and July 2021.

At trial, Garcia claimed he had photos of naked inmates because he had caught them engaging in sex, and the pictures were evidence of their offenses. Confronted with the fact that he had never filed disciplinary reports against the women he had photographed, he explained he had forgotten to write them up.

Prosecutors introduced evidence that Garcia’s abuse of several inmates followed a pattern that started with compliments, flattery and promises of transfers to lower-security prisons, and escalated to sexual encounters. Garcia is charged with abusing three inmates between December 2019 and July 2021, but others also said he groped them and told them to pose naked or in provocative clothing. Jurors deliberated over parts of three days following a week of testimony, including from several of Garcia’s accusers and the former warden himself.

“Instead of ensuring the proper functioning of FCI Dublin, he used his authority to sexually prey upon multiple female inmates under his control,” U.S. Attorney Stephanie Hinds said, calling Garcia’s crimes a betrayal of the public trust and his obligations as a warden.

Santa Rosa Press-Democrat, Ex-Dublin prison warden convicted of sexually abusing inmates (December 8, 2022)

LA Times, Ex-warden of California federal women’s prison goes on trial for inmate abuse charges (November 28, 2022)

Four Years After First Step, Earned Time Credits Still Unsettled: The BOP’s recent press release and program statement on First Step Act time credits allowed for a grace period until December 31 for inmates to complete needs assessments, and eliminated the rule that credits earned after an inmate was within 18 months of release could not count for sentence reduction rule.

mumbo161103Writing in Forbes last week, Walter Pavlo noted that “the information provided by the BOP was lacking in specifics as to when this program will be fully implemented. The press release stated that ‘inmates will soon be able to see all potential Federal Time Credits (FTC) they may earn over the course of their sentence.’ The use of the term “soon” is relative and causes undue stress on both inmates and BOP staff.”

In fewer than three weeks, the First Step Act will be four years old. Pavlo rightly complains that setting firm deadlines like “soon” and with “a poor track record thus far… the BOP has no timetable for having this new program statement put into action. In the interim, there are inmates in prison who could, because of this program statement, be released, placed in halfway house, placed on home confinement, or placed on CARES Act home confinement.”

Pavlo argues that while “there is no complexity to many of these calculations… there is no central authority named to conduct these assessments between the program statement announcement and the implementation of an automated calculator.” The BOP has already lived through two FSA credit calculators, the one that was implemented last January when the Dept of Justice forced the BOP to turn 180 degrees on its draconian proposed rules, and the second – touted as “an application to fully automate calculations” due last August but not implemented (with disastrous results) in October.

That October automated calculator now goes back to the drawing board, “making it over a year since the Final Rule that inmates will have clarity on what FSA will mean to them,” Pavlo wrote.

Forbes, First Step Act Delays Continue In The Bureau of Prisons And People Are Locked Up Beyond What The Law States (November 30, 2022)

BOP, P.S. 5410.10, First Step Act of 2018 – Time Credits: Procedures for Implementation of 18 U.S.C. § 3632(d)(4) (November 17, 2022)

BOP, First Step Act Time Credits Policy Released (November 18, 2022)

BOP Inmates Out of Private Prisons: The BOP announced last week that consistent with President Biden’s January 2021, Executive Order, the agency has ended all contracts with privately managed prisons. The contract with the last private prison, McRae Correctional Facility in Georgia, ended on November 30, 2022.

The BOP said, “All BOP inmates previously housed in these private prisons have been safely transferred to BOP locations without incident.”

Since the mid-1980s, the BOP maintained contracts for 15 private prisons, housing about 29,000 federal inmates.

An interesting factoid buried in the BOP press release: the agency said it “employs 34,813 staff.” This is a substantial decrease from just a year ago, when the BOP reported 36,739 workers.

BOP, BOP Ends Use of Privately Owned Prisons (December 1, 2022)

‘BOP Lied, Whitey Died,’ DOJ Inspector General Says: In a report which should shock no one familiar with the Bureau of Prisons – except that the Dept of Justice took so long to produce it – the Inspector General has concluded that a chain of bureaucratic errors, incompetence,  health system failures, and deliberate falsification resulted in the bludgeoning death of celebrity crime boss James (Whitey) Bulger within 12 hours of his arrival at USP Hazelton in 2018.

The Inspector General determined that BOP officials at USP Coleman approved downgrading Whiteyr’s medical status from Care Level 3 to 2 solely to get BOP approval to transfer him from Coleman – where he had spent eight months in the Special Housing Unit after allegedly threatening a nurse – to Hazelton (a place known with some justification as “Misery Mountain”). The decrease in Care Level (and omission of any reference in the transfer papers to his life-threatening cardiac condition) came after a prior attempt to transfer Whitey was stopped by BOP Central Office medical staff because of his age and medical condition.

lockinsock181107Despite Whitey being a celebrity prisoner due to his notorious past, Hollywood treatment of his life, and his history of being a federal informant, over 100 people inside the BOP knew of his transfer. At USP Hazelton, even before Whitey’s arrival inmates were taking bets on how long he would survive before being killed.

Nevertheless, the BOP took no extra security precautions. As a result, within 12 hours of his arrival at Hazelton, Whitey was placed in general population and beaten to death with a padlock inside an athletic sock (colloquially known as “a lock in a sock“).

Mr. Bulger’s death was preventable and resulted from “staff and management performance failures; bureaucratic incompetence; and flawed, confusing, and insufficient policies and procedures,” the IG concluded.

A curious observation in the Report noted that BOP staff should have considered that the eight months Whitey spent in the Coleman SHU “in a single cell before his transfer from Coleman caused him to state in a September 2018 Psychology Services Suicide Risk Assessment that ‘he had lost the will to live,’ and may have affected his persistence upon arriving at Hazelton that he wanted to be assigned to general population.”

A weird twist: In 2019, accused sex predator Jeffrey Epstein allegedly killed himself in BOP custody amid rumors that the death was not what it seemed. Those conspiracy theories are largely debunked. But now, perhaps Whitey actually did commit “suicide-by-inmate” in a death that otherwise was clearly a murder.

DOJ, Investigation and Review of the Federal Bureau of Prisons’ Handling of the Transfer of Inmate James “Whitey” Bulger (December 7, 2022)

New York Times, Investigation Finds Errors and ‘Incompetence’ Led to Whitey Bulger’s Death (December 7, 2022)

– Thomas L. Root

‘You Can’t Just Make Stuff Up,’ Two Courts Tell BOP – Update for November 10, 2022

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

TWO EARLY HABEAS DECISIONS ON FSA CREDITS AND DETAINERS ARE POSITIVE

maketherules221110The Federal Bureau of Prisons has been refusing to award earned-time credits (ETCs) for prisoners who complete evidence-based programs to reduce recidivism (EBRRs) where the inmates have detainers, whether for immigration, pending charges or other sentences to be served. Challenges to the practice are in their early stages, but right now decisions on the merits stand at prisoners 2, BOP 0.

Explainer: When another agency or court wants a prisoner – either for service of a sentence, a pending charge, or so it can start deportation proceedings – a “detainer” is filed with the prison authority informing it that the prisoner is to be turned over to the detaining entity when his or her sentence is complete.

The BOP honors detainers, and refuses to place prisoners with detainers in minimum-security camps or send them home to halfway houses or home confinement at the end of their sentences.

When Congress passed the First Step Act, there was an 11th-hour flurry of amendments that severely narrowed the number of prisoners eligible to get credit for completing EBRRs. Prisoners whose crimes included carrying guns, fentanyl, certain leadership roles, sex offenses… by the time Republican fire-breathers like Ted Cruz and Tom Cotton were done, at least 64 different categories of prisoner were excluded from the ETC program, constituting about half of all federal prisoners.

But their programming penuriousness has a flip side: by detailing so many exclusions, Congress strongly implied that the BOP had not been delegated any authority to concoct its own list of additional exclusions.

Notably, the ETC exclusions mention nothing about detainers.  But that hasn’t stopped the BOP from asserting that it has the discretion to declare the inmate ineligible for early release “because the BOP is entitled to interpret the FSA to allow it to deny application of earned ETCs to those federal inmates who have pending criminal charges or a detainer.”

The very early returns are in, and the BOP is losing. In a California district court case, the BOP declared an inmate with low recidivism ineligible to have his earned ETCs applied to his sentence due to two pending Missouri criminal cases. The BOP told the court that the agency has the discretion to declare the inmate ineligible for early release “because the BOP is entitled to interpret [First Step] to allow it to deny application of earned ETCs to those federal inmates who have pending criminal charges or a detainer.”

words221110The magistrate’s recommended decision in Jones v. Engleman rejected the BOP’s position, holding that it is fundamental that a statute’s “words generally should be interpreted as taking their ordinary, contemporary, common meaning at the time Congress enacted the statute. Agencies exercise discretion only in the interstices created by statutory silence or ambiguity; they must always give effect to the unambiguously expressed intent of Congress.”

“Here,” the Magistrate Judge ruled, “there are no such interstices, because the relevant portions of the [First Step Act] are not ambiguous or incomplete and Congress’s intent is clearly expressed through mandatory statutory language. The language of the [First Step Act] shows that Congress made a conscious choice to do three things. One, by its use of ‘shall be applied’ and ‘shall transfer”‘language in Section 3632(d)(4)(C), Congress made the application of earned ETCs to effect early release mandatory for prisoners “eligible” under Section 3624(g). Two, by Section 3624(g), Congress spelled out the prerequisites for a prisoner to be ‘eligible,’ which have been described earlier and do not contemplate any additional criteria or precondition to release akin to the Pending Charges Exclusion. Third, by Section 3632(d)(4)(C), Congress explicitly determined which prisoners are “ineligible” to have the [First Step Act]’s ETC and early release provisions applied to them, and none of these expressly delineated categories include prisoners who have pending charges or detainers.”

(After the Jones v. Engleman recommended decision, the BOP decided that inmate Jones didn’t have a detainer after all, so the District Court did not adopt that part of the recommended decision  due to mootness).

myrules221110In a New Jersey case, an inmate with a pending Pennsylvania parole detainer was denied his ETCs because under BOP rules, he was ineligible for halfway house or home confinement due to the detainer. The District Court ruled that the First Step Act’s list of prisoners ineligible for ETCs left no room for the BOP to add other categories. The Court held:

If… the warden determines that Petitioner’s earned TCs should be applied to early supervised release, rather than prerelease custody to a residential reentry center or home confinement, there is no statutory provision or BOP regulation that precludes application of TCs toward early supervised release of prisoners who have state detainers lodged against them. As Petitioner suggested, the provisions regarding detainers in BOP Program Statement 7310.04 apply only to prerelease custody to residential reentry centers and home confinement. As Respondent points out, however, supervised release is different because it does not involve BOP custody…

There is bound to be much more litigation over whether the BOP may deny prisoners with detainers from using ETC credits for shortened sentences. These early decisions suggest that courts will be skeptical of BOP efforts to expand the list of people being denied ETCs.

Jones v. Engleman, Case No 2:22-cv-05292, 2022 U.S.Dist. LEXIS 185635 (C.D. Cal., Sept. 7, 2022)

Jones v. Engleman, Case No. 2:22-cv-05292, 2022 U.S.Dist. LEXIS 185029 (C.D. Cal., Oct. 7, 2022)

Moody v. Gubbiotti, Case No 21-12004, 2022 U.S.Dist. LEXIS 181399 (D.N.J., Oct. 3, 2022)

– Thomas L. Root