Tag Archives: ETC

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

Leave a comment

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)

rocket190620

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)
rocket190620

$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)
rocket190620

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

Detainers No Longer Disqualify Some FSA Credit Application – Update for February 13, 2023

Leave a comment

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.

uncle230213FSA 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.

elsa230213PATTERN 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.

groundhogday230213The 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

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

Leave a comment

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.

rocket190620

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

BOP Relents on FSA Credit Takeaway With “Grace” – Update for November 21, 2022

Leave a comment

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

FSA-ELIGIBLE INMATES HAVE REASON TO BE THANKFUL (EVEN WHILE REMAINING A BIT CONFUSED)

Responding to mounting criticism about the Bureau of Prisons’ messy implementation of the First Step Act’s earned-time credits (ETCs), the BOP last week finally rolled out a program statement articulating its ETC policies.

firststepB180814For those just tuning in, the First Step Act – passed in December 2018 – established a program in which federal inmates could earn credits for successfully completing programs that were designed to reduce recidivism or participating in “productive activities” that are linked to resulting in less recidivism. Those credits (called “FSA credits” [First Step Act credits]) or “FTCs” [“Federal Time Credits) or “ETCs”) could be used by prisoners to reduce their sentences by up to 12 months or earn more time in halfway houses or home confinement. Although disrupted by the COVID pandemic and chronic staffing shortages, the BOP has been implementing the ETC program in fits and starts.

The latest snafu came in the implementation of a computer system to automatically calculate each prisoner’s ETCs (“Auto-Calc”). The system – planned for August 1 but actually launched the last week of September – automatically rescinded a lot of ETCs already granted, mostly because inmates had not completed online “needs assessment” surveys a year or more before, “surveys” that neither they nor the staff knew were mandatory in order to earn ETCs.

oddcouple210219Earlier last week, Senators Richard Durbin (D-IL), chairman of the Senate Judiciary Committee, and Senator Charles Grassley (R-IA), ranking Republican on the Committee, jointly wrote to Attorney General Merrick Garland criticizing the BOP for (1) Auto-Calc’s having rescinded previously-awarded ETCs for some prisoners; (2) setting an arbitrary rule that the BOP would stop applying ETCs to the up-to-12 months’ sentence reduction when inmates are 18 months from the door; (3) not granting ETCs to people in halfway house and home confinement; and (4) failing to clean up the PATTERN risk assessment tool to address “unjustified disparities that have arisen.”

The BOP responded to Durbin and Grassley with alacrity (a sentence I never thought I’d write). As noted, when Auto-Calc came online, many prisoners who had seen their release dates move up due to award of ETCs months before suddenly lost some or all of their time because they had not completed online needs assessment surveys in 2020 and 2021. Of course, the BOP never told inmates that completion was mandatory if inmates wanted to earn credits. The BOP itself admitted that nearly half of staff interviewed for a March report indicated no familiarity with, or declined comment on, the needs assessment process and FSA incentives policies,” according to Forbes magazine.

In a press release issued Friday, the BOP said, “With the automation, some inmates noticed their time credit balance decreased due to incomplete needs assessments and/or declined programs. This policy includes a grace period, available until December 31, 2022, for inmates who have not completed all needs assessments or who have declined programs to try to address these issues. Beginning January 1, 2023, any incomplete needs assessments or any declined to participate codes will lead to the inmate not earning FTCs in accordance with the federal regulations.”

grace221121So people in federal custody now have until New Year’s Eve to figure out what needs assessments they “failed” to complete and to get them done.

The “grace period” policy is not written into the new Program Statement, suggesting that it is an 11th-hour change. Its absence from the Program Statement is a little worrisome: no one relishes going to court to enforce the terms of a press release.

Although the Program Statement doesn’t say anything about “grace” as such, it does contains a lot:

•   Every eligible prisoner with a low or minimum PATTERN score will receive a conditional projected release date based on the maximum number of ETCs he or she can earn during the sentence.

•   Prisoners remain eligible for ETCs even those locked up in the Special Housing Unit, unless they are in disciplinary segregation.

•    Productive activities have been defined in greater detail. Besides the “structured, curriculum-based group programs and classes” already defined in the First Act Approved Programs Guide, the new Program Statement provides examples such as “recreation, hobby crafts, or religious services,” visitation, ACE classes, institution work programs, community service projects, and even participation in an FRP plan.

The Program Statement provides little clue as to who determines which unstructured activities will count as “productive activities.” It only says, “Additional groups, programs, classes, or unstructured activities may be recommended to assist the inmate in establishing positive institutional adjustment and involvement in pro-social activities. The inmate’s risk level, needs assessment results, and program recommendations will be documented on the inmate’s Insight Individualized Need Plan, and the inmate will receive a copy.”

That suggests the BOP line employees will determine what unstructured programs will count, but it does not explicitly say that. The omission provides an excellent opening for confusion and unwarranted denial of ETC credit as managers at 122 separate BOP facilities define what is a productive activity in 122 different ways.

•  The Program Statement says “inmates with unresolved pending charges and/or detainers may earn FTCs, if otherwise eligible, but “they will be unable to apply them” to sentence reduction or halfway house/home confinement “unless the charges and/or detainers are resolved. An inmate with an unresolved immigration status will be treated as if he/she has unresolved pending charges with regard to the application of FTCs.”

So good news here: The BOP has consistently been defining inmates with detainers as being ineligible to even earn ETCs. Now, detainers will no longer prevent people from earning ETCs. But for some reason, the BOP continues to refuse to use ETCs for sentence reduction when people have detainers.

• The Program Statement makes it clear that inmates with medium/high PATTERN scores may earn ETCs, but that they cannot use them unless they work their way down to low or minimum risk assessment status.

What the Program Statement does not mention is how people in halfway houses or on home confinement can earn ETCs, despite the fact the First Step Act and the BOP’s own final rules contemplate it. In fact, reference to “community service projects” and “religious services” as unstructured activities seems to be perfectly suited for people on prerelease custody.

In the Merrick Garland letter, Senators Durbin and Grassley complained that the BOP has no mechanism to allow people on prerelease custody to earn ETCs.

makingitup221121Also unmentioned in the Program Statement is the BOP’s “18-month rule” that inmates with 18 months or less remaining on their sentences may not apply ETCs towards reducing their sentences. Senators Durbin and Grassley complained in their letter that the 18-month rule “is not supported by the FSA, nor does it further the FSA’s goal of incentivizing recidivism reduction programming for returning persons. Moreover, under this guidance, any federal prisoner with a sentence of 18 months or less would be unable to earn an earlier release date. BOP should therefore not implement an arbitrary cutoff on earning ETCs toward release.”

U.S. District Judge Lorna G. Schofield granted habeas corpus last week to a prisoner who complained that the BOP had arbitrarily refused to apply any of his ETCs earned after January 2022 to a shortened sentence. The BOP explained that it was not applying any ETCs to a reduced sentence once the inmate was within 18 months of release.

Judge Schofield ordered the BOP to apply the prisoner’s ETCs to a shortened sentence up to the 365-day limit. She ruled,

Letter to Attorney General (November 16, 2022)

Forbes, U.S. Senators Express Concern With Bureau Of Prisons’ Implementation of First Step Act (November 17, 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 Act Approved Programs Guide (August 2022)

Brodie v. Warden Pliler, 2022 U.S.Dist. LEXIS 202749 (S.D.N.Y., Nov 7, 2022)

– Thomas L. Root

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

Leave a comment

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

Trick or Treat: The Sequel – Update for October 31, 2022

Leave a comment

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

TRICK-OR-TREAT – PART 2 (IN WHICH BOP DIRECTOR IS HOPING FOR ‘CHOCOLATE HEARTS’ INSTEAD OF A THUG HUG)

What we kids used to call “Halloweening” (I know, it’s not really a verb, but a lot of non-verb words are being used as verbs these days) continues today.

hugathug221031BOP Director Colette Peters sat for her first national media interview last week, telling Associated Press reporters Michael Balsamo and Michael Sisak – who have covered BOP crises, scandals and miscues in detail for the past three years – that skeptics who denounce her approach to running a prison system “hug a thug” are simply wrong.

Peters didn’t mind that, but she offers a different term: “chocolate hearts.” Her ideal BOP employee, she said, is as interested in preparing inmates for returning to society after their sentences as they are in keeping order while those inmates are still locked within the prison walls. She said she wants to reorient the agency’s hiring practices to find candidates who want to “change hearts and minds” and end systemic abuse and corruption. She told the AP she would not rule out closing problematic prisons, though there are no current plans to do so.

chocolatehearts221031Chocolate hearts or the ‘Thug Squeeze’, Peters nevertheless is still dealing with problems she inherited when she took the director’s job last August, and those problems are many.

Trick: Ruben Montanez-Mirabal (Montanez), a nurse at FDC Miami, was indicted last week on charges of bribery, smuggling contraband into prison and possession with intent to distribute K2.

According to the indictment, Montanez posted Instagram photos of him in a Lamborghini, a Rolls Royce and a McLaren. When one person wrote back to Montanez about how much he was paying for these cars Montanez responded, “Absolutely nothing. It’s all about having the right contact.” The cars were owned by the inmate at FDC Miami who was cooperating with authorities.

Treat: Peters won praise from Sen. Jon Ossoff (D-GA) for her decision to join him in inspecting USP Atlanta last Wednesday.

“I want to be really clear, I’m not here to tell you the problems are solved,” Ossoff told reporters. “We saw encouraging signs of improved management and I heard a firm commitment from the new leadership to continue improving this facility and safeguarding public safety in the community.”

The BOP emptied USP Atlanta of prisoners a year ago amid reports of rampant staff corruption, decrepit facilities and drug use and contraband possession among inmates. “We saw encouraging signs of improved management and I heard a firm commitment from the new leadership to continue improving this facility and safeguarding public safety in the community,” Ossoff said. However, he warned, “I’m a long way from being prepared to declare that the problem has been solved.”

callback221031Trick: While Peters was getting lauded by Sen Ossoff, she was taking it on the chin in Fort Worth. The Fort Worth Star-Telegram, which has been covering staff abuse and miserable conditions experienced by the female inmates and conditions at FMC Carswell, the BOP women’s medical center in Fort Worth, asked Peters for an interview on September 7. A BOP spokesman declined on her behalf, saying Peters’ “schedule is very full her first few months, but we can re-visit this request in the future.”

To determine when Peters may be available, the Star-Telegram requested her appointment calendar through a Freedom of Information Act request. Last week, the newspaper reported that the BOP told it the FOIA request would take a while because it “must be searched for and collected from a field office.” One month later,” the Star-Telegram said, it “had not received Peters’ calendar.”

On October 11, the Star-Telegram again requested to speak with Peters regarding abuse at FMC Carswell. A BOP spokesperson once again said “the director’s schedule does not permit an interview at this time.”

Treat: The FCI Dublin sex abuse scandal is working its way toward resolution. Last Thursday, a former BOP corrections officer accused of sexually abusing inmates there pleaded guilty.

Enrique Chavez entered a plea to one count of abusive sexual contact with a prisoner. Chavez was a food service foreman there two years ago when he locked the door to the pantry and fondled an inmate.

Chavez was the fifth Dublin employee to be charged with sexual abuse of inmates since June 2021. Others include the prison’s former warden and a chaplain. He is the third to have pleaded guilty.

computerhaywire221031Trick: Auto-calc, the new BOP computer app created to automatically calculate inmates’ earned-time credits” suffered a technical glitch as it was launched earlier this month (only 60 days late).

Instead of recognizing inmates’ ETC credits, NBC News reported Friday, “some said the opposite occurred, which suddenly shifted their release dates to a later time than they had anticipated. In extreme cases, some prisoners already released to halfway homes were erroneously told that the new calculations indicated they were deficient in the necessary credits and they would have to return to prison.”

Director Peters told NBC News on Thursday that prisoners’ time credit calculations are now accurately reflected and it was “unfortunate we had some IT glitches as it rolled out.”

“When you move from a human calculation to an automation, you always hope that the error rate drops, and so that’s our hope as well going forward,” she said.

AP, US Bureau of Prisons chief pledges hiring reforms amid staffing crisis (October 25, 2022)

Forbes, Federal Prison FDC Miami Nurse Indicted On Contraband Charges (October 24, 2022)

WSB-TV, Atlanta’s federal penitentiary being inspected after inmates could come and go through holes (October 26, 2022)

Ft Worth Star-Telegram, Bureau of Prisons continues to evade questions about sexual abuse at Fort Worth prison (October  27, 2022)

Corrections1, Federal prison worker pleads guilty to inmate sex abuse (October 28, 2022)

NBC News, Tech glitch botches federal prisons’ rollout of update to Trump-era First Step Act (October 28, 2022)

– Thomas L. Root

BOP Delivers New Earned-Time Credit Restrictions – Update for September 14, 2022

Leave a comment

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

THE GOOD, THE BAD, AND THE UGLY

thegood220914One provision of The First Step Act, signed into law in December 2018, allowed eligible inmates to earn credits toward an earlier release from prison, more halfway house or home confinement. The credits, called “earned time credits” or ETCs, were to be granted to prisoners participating in certain needs-based educational programs and productive activities. For every 30 days of successful participation, the prisoners could earn up to 15 days off their sentence up to a maximum of 12 months (365 days). ETCs could also be used to entitle the inmates to more halfway house or home confinement on a 1-1 basis: 30 days of ETC credit would earn 30 days more of home confinement, for instance.

The challenge for the Bureau of Prisons has been to keep accurate track of the credits earned by inmates. It is a multi-step analysis: First, is the inmate eligible to participate in the earned-time credit program? Second, has the inmate’s needs been properly assessed? Third, has the inmate enrolled in programming that addresses that need? Fourth, how many credits has the inmate earned in any given month?

When the BOP adopted the ETC system in January 2022, the system it enacted was 180 degrees opposed to the Draconian proposal the agency had floated previously. The adoption seems to have caught the BOP flat-footed, because it simply threw up its hands (figuratively speaking) and declared that any inmate eligible for the credits as of January 15th was assumed to have participated in eligible programs for every day since December 21, 2018 (or when the inmate arrived in the system, whichever was later).

Sweet deal. As a result, thousands of inmates were released in the days following the January adoption date.

But every Christmastime ends, and so did the BOP’s ETC giveaway. Since January 15, the agency has struggled with how to quickly calculate inmate ETCs on a rolling basis. In April, the BOP revealed in a court case that it was developing a computer program – an “auto-calculation” system – to update each inmate’s ETC credits continuously. The BOP estimated Auto-Calc would be implemented by about August 1.

The BOP finally delivered its Earned Time Credit “Auto Calculation” system last Thursday. “On time and under budget” is not a mantra at the Bureau. Delivery took about 50% longer than the BOP predicted it would. And, as Walter Pavlo said in Forbes last Friday, it “landed with a thud.”

Why the thud? The Auto-Calc system was accompanied by a memo that announced several interpretative rules the BOP is imposing by fiat. You know, rules that interpret other rules. And unlike the adoption of last January’s formal rules, there was no rulemaking proceeding, no “notice and comment” period, and scant indication the changes were coming.

The First Step Act spelled out prisoner eligibility in detail, But that hasn’t stopped the BOP from adding its own bells and flourishes.

The good news in the memo (such as it is) is that

• the BOP’s official stance is that ETCs will be applied first to reduce sentence length, and second to more halfway house and home confinement. The agency had been doing that since last January, but it had never announced that as BOP policy. Given how arbitrary the BOP can be, the announced adoption of the reduction-first approach as policy is a good thing.

• any halfway house or home confinement awarded using ETCs will be granted “in addition to release needs-based recommendations made under the Second Chance Act.” In other words, if the Second Chance Act would have entitled a prisoner to placement in a halfway house for six months even without ETCs, and you have 120 days of ETC credit applied to halfway house, you would be placed for 10 months.

• the Auto-Calc system will update ETCs monthly.

• the BOP verified that ETCs may be applied toward early release in addition to the early release benefit for RDAP graduates. In other words, RDAP now double counts toward early release, up to 12 months off for successful completion of the program as well as an additional credit of up to 150 days ETC credits for finishing RDAP.

• In order to earn 15 days credit for every 30-day period instead of 10 days for every 30-day period, inmates need to (1) start out with a low- or minimum-risk PATTERN level; OR (2) have dropped to a low- or minimum-risk PATTERN level and maintained it for two consecutive assessment periods. This is good news, because a number of inmates who entered the system with low or minimum scores have been told in the past few months that they have to have two consecutive assessment periods under their belts before getting 15 days of ETC credits in a month.

thebad220914But there is bad news in the memo, too:

• The memo codifies what I first learned last month. The BOP will not credit ETCs toward early release for inmates who are 18 months from release. At 18 months, the BOP says, “the release date becomes fixed, and all additional ETCs are applied toward” halfway house or home confinement.

This is a slight improvement over what the BOP was saying a month ago. In a declaration the BOP filed in Marier v. Bergami, the BOP manager said the cutoff was 24 months. But it still means, practically speaking, no inmates with sentences of less than 42 months will have enough time to collect ETCs entitling them to 12 months off their sentence (the maximum allowed by law).

This also means that unless an inmate can complete the in-custody portion of RDAP with at least 18 months left, the RDAP ETCs will apply to more halfway house or home confinement, not more time off.

Pavlo complained in Forbes last week that “with this more restrictive condition, BOP is even going against the Department of Justice’s intent of FSA which was to ‘transfer eligible inmates who satisfy the criteria in § 3624(g) [awarding of FSA credits] to supervised release to the extent practicable, rather than prerelease custody [halfway house and home confinement]’… In Fiscal Year (FY) 2019, the cost of incarceration fee for a federal prisoner at a federal facility was $107.85 per day; in FY 2020, it was $120.59 per day. It costs less than half that to place a minimum security prisoner on home confinement and it costs nothing if the prisoner is not in custody at all. Thousands of prisoners will be affected by this unilateral decision by the BOP. For many prisoners, their date for returning to society has been prolonged by a memorandum that is both unfair and arbitrary.”

• The memo states that “inmates who refuse or fail to complete any portion of the needs assessment and/or refuse or decline any program recommended to address a specific identified need area, are considered “opted out” and will not earn ETCs.” This hardly seems to be bad news, except that it assumes that the failure to complete needs assessment or refusal or declining to take a program is intentional.

More than one inmate has already reported that he or she was marked “refused” for not taking a program that simply was not available at the time. One inmate only saved from being marked “refused” by proving that he had sent the staff member responsible for the program a request to be put on the “wait list.”

• Starting eight months ago, the memo says, “all components of the SPARC-13 needs assessment must be complete to be eligible to earn ETCs. Failing to do so is considered ‘opted out.’ In other words, if an inmate fails to complete a required survey to enroll in a recommended program which addresses a specified need, the inmate will not be eligible to earn FTCs.”

The SPARC-13 is the Standardized Prisoner Assessment for Reduction in Criminality, a battery of surveys mandated by the BOP’s Initial Review of the SPARC-13 Needs Assessment System, issued last March. Judging from inmate reports, few have been given the surveys to complete. Even if they are asked to do so now, it is not clear whether any programs completed between January 15 and September 8 will count if the SPARC-13 was not done prior to that time.

• the memo states that “while inmates continue to earn FTCs, inmates can only apply the FTCs if they have no detainers, unresolved pending charges, and/or unresolved immigration status issues.”

These restrictions do not appear in the First Step Act and make little sense. It is logical that the BOP would not send inmates to detainers to halfway house or home confinement. That is a long-standing limitation. But there is no security issue in letting inmates with detainers benefit from shortened sentences. If an inmate gets a year off, the BOP simply lets the detaining agency know to pick up the inmate on Sep 12, 2022, instead of Sep 12, 2023, for instance.

Pavlo quotes a retired BOP employee as saying of the memorandum, “BOP is creating their own language and leaving the discretion in the hands of case managers to interpret who is eligible and who is not. They have completely disrespected the intent and FSA law states.”

theugly220914Finally, the ugly. The memo notes that “as a reminder, the unit team will determine an inmate’s eligibility to earn FTCs based on the current conviction and prior criminal convictions.” This means that basic decisions applying the statute are decentralized among close to a thousand unit teams. Given some of the errors already made by unit teams unschooled in the FSA, the amount of administrative remedy and judicial review such decision-making decentralization will spawn is likely to be quite significant.

A final thought: The Administrative Procedure Act (5 USC § 552), with its “arbitrary and capricious” standard, governs just about all federal agencies. However, Congress specifically stated in 18 USC § 3625 that the APA does not “apply to the making of any determination, decision, or order under this subchapter.”

The catch here is that § 3625 is specific to 18 USC Chapter 229, Subchapter C. The portion of the FSA establishing ETCs is set out in the newly-created Subchapter D. Congress either decided not to exempt the BOP’s implementation of the ETC from the APA, or it just forgot to do so. Either way, the ETC program appears to be subject to APA challenges, something new for BOP management.

Forbes, Bureau of Prisons’ Interpretation of First Step Act Will Leave Thousands of Inmates Incarcerated (September 9, 2022)

BOP, Memo on Implementation of Auto-Calculation (September 8, 2022)

BOP, Initial Review of the SPARC-13 Needs Assessment System (Mar 2022)

Declaration, ECF 10-1, Marier v. Bergami, Case No 21C50236 (ND Ill, Aug 9, 2022)

– Thomas L. Root

ETC-Eligible Inmates May All Be ‘Above Average’ – Update for June 21, 2022

Leave a comment

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

BOP FILING IN HABEAS CASE EXPLAINS INTERIM EARNED-TIME CREDIT POLICY

keillor220621Back before Prairie Home Companion humorist Garrison Keillor had not yet been ‘canceled’ for lusting after women in his heart (or whatever the crime might have been), he created Lake Wobegon, a place where all the women were strong, the men were handsome, and the children were above average. The setting gave its name to the “Wobegon Effect,” a prejudice of superiority also known as illusory superiority.

The BOP – due to sloth, being overwhelmed by events, or by design – may have instituted its own version of the phenomenon. Let’s call it the ‘ETC Effect.”

Recall that the First Step Act mandated that the BOP assess all inmates for their likelihood of recidivism and programming needs.  Prisoners would then complete evidence-based recidivism reduction programming (EBRRs) that would address their needs and make them less likely to reoffend.

To encourage inmates to complete the programming, the BOP would award eligible inmates (and Congress exempted about half of all inmates from the program, probably to look good to those criminal-hating voters back home), First Step directed the BOP to issue ETCs. An inmate can earn from 10 to 15 days a month in ETCs for each 30 days spent in an EBRR or in pursuit of specified “productive activities.” The first 365 days’ worth of ETCs will reduce an eligible inmate’s sentence by up to a year.  Any ETCs beyond that can be used for extra home confinement or halfway house.

Jailbreak done right.
Early release through ETCs – a jailbreak done right.

When the BOP announced its final rules on EBRRs and ETCs in January, it specified that ETCs could be earned from the day First Step became law (December 21, 2018). This meant that a thundering herd of inmates who were close to their release date probably should already be home once their ETCs were applied. In fact, the BOP released a lot of inmates in the days and weeks following adoption of the rules.  But since then, those still in prison have been complaining loudly that their ETC credits have not been applied.

Which brings us to Bob Stewart. Bob got his ETC calculation from the BOP last January, learning he had 75 days of credit as of Christmas Day 2021. But his release falls in October 2022. He argued that this imminent date makes continuous updating of his credits necessary.  The BOP, which has been calculating ETCs inmate-by-inmate in a manual process, told Bob that he would not get an update until sometime in the future when the agency implemented a new “auto-calculation” programming.

Bob brought a habeas corpus action in federal court, arguing that had another 60 days coming as of the filing date in March 2022, and that he was continuing to earn days on a rolling basis until his release date.

The BOP moved to dismiss the action, arguing essentially that Bob would just have to wait for “auto-calc” like everyone else. Included with its filing was a fascinating declaration from Susan Giddings, a BOP official, explaining BOP interim policy.

Susan said that everyone got one manual calculation, and Bob had gotten his. After that, everyone had to wait until the BOP completed installation of its “auto-calculation application to BOP’s real-time information system (known as SENTRY) and full integration between SENTRY and BOP’s case management system (known as INSIGHT).” She estimated that  “auto-calc” would be live by about August 1.

participation220621As interesting was her revelation that every ETC-eligible inmate was getting ETC credit from the day First Step passed or the inmate’s first day in prison, whichever was later. The grant appears to be independent of whether the inmate completed any programming during that time or not.

Bob’s district court was not impressed by the BOP’s reasoning that the law would just have to wait for the agency’s programmers. It ordered the BOP to recalculate Bob’s ETCs every 60 days, whether the “auto-calculation application” was working or not.

The Magistrate’s Report, adopted in full by the District Judge, said,

it is unclear when the automated system will be up and running. While it could be within the next 90 days, that is not guaranteed, and Respondent even hedges this statement with the caveat ‘absent unforeseen circumstances.’ Thus, the assertion that Stewart will receive these credits within the next couple months, i.e., in time for them to impact the remainder of his sentence, is speculative

Now for the interesting part. Susan revealed that the BOP is granting ETCs to every eligible inmate from the day First Step passed or the inmate’s first day in prison (whichever was later), whether any programs have been completed or not.  I have had several inmates confirm this. One disgustedly told me, “There’s this guy in the unit who is asleep in his bunk all day and night, except for meals. He got the same number of ETCs – like 540 or so – everyone else got.”

musicstops220623What this means, in other words, is that every eligible inmate is successfully reducing his or her recidivism risk, every eligible inmate is excelling in productive activities, and – in fact – every eligible inmate is not only eligible, but above average.

Far be it from me to complain when any BOP program works to the benefit of inmates, but still, this is not how it is supposed to work. Someday, maybe someday soon, the music will stop.  That will undoubtedly be an unpleasant jolt to the guy asleep in the top bunk… and to everyone else.

Stewart v. Snider, Case No. 1:22cv294, 2022 US Dist. LEXIS 100512 (N.D. Ala, May 10, 2022) (Magistrate’s Report)

Stewart v. Snider, Case No. 1:22cv294, 2022 US Dist. LEXIS 100482 (N.D. Ala, June 6, 2022( (District Court order)

Giddings Declaration, ECF 11-14, Case No. 1:22cv294, (N.D. Ala, filed Apr 29, 2022)

– Thomas L. Root

ETC FUBAR at BOP, As New Director Search Finally Over – Update for June 16, 2022

Leave a comment

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

BOP: DON’T CALL US, WE’LL CALL YOU ON EARNED TIME CREDIT CALCULATION

If there is a common refrain in emails coming into this Newsletter in the past several months, it is that inmates are not getting their earned-time-credit calculations from their Unit Teams.

don'tcallus220616A recap: The First Step Act authorized the award of credits to inmates who successfully complete programs that have been found to reduce recidivism. The acronym-crazy government calls them “EBRRs,” that is, “evidence-based recidivism reduction” programs. Inmates could receive “earned time credits” (ETCs) that will reduce their prison time up to a year, grant them more halfway house or home  confinement, and even get them more phone time and commissary.

(Confusingly, the government called ETCs “FTCs” for awhile – “federal time credits” – but seems to have settled on the preferred terminology now).

Inmates are classified using a system called PATTERN according to their likelihood of recidivism.  As they complete programs, age, and behave, their PATTERN score decreases, increasing the number of ETCs they may receive.

So all is roses in the BOP. Inmates are happily earning ETCs, the staff is contentedly helping prisoners forsake their prior evil ways…

FUBAR220616Right. In fact, implementation of ETCs (and awarding time off) is becime a FUBAR.

Last week, Walter Pavlo reported in Forbes on an internal BOP memo acknowledging the frustration:

Institutions are likely getting a lot of calls from outside family members and/or questions from the inmates themselves. We ask that you refrain from referring inmates or their family members to the DSCC or Central Office. As we move toward a fully automated auto-calculation process for the calculating and awarding of FTCs, neither the DSCC nor the Corrections Programs Branch are directly involved in the process.

Forbes said the memo directed institutions to give inmates and their family members a “canned response” asking “for their patience” during the implementation of an automated credit calculation system:

While all eligible inmates are able to earn credits, the Agency is prioritizing those inmates who are within 24 months of their Statutory Release date and eligible to both earn and apply Federal Time Credits. The Agency is in the final stages of development and testing of an auto-calculation app, and once finalized all eligible inmates will have their records updated and the Federal Time applied consistently with the Federal Rules language.

Late breaking news: The BOP has finally found someone who will admit to being considered for the director’s slot, replacing Michael Carvajal (whom Sen. Richard Durbin [D-IL] wants to usher into retirement as quickly as possible). 

Could MIke Carvajal finally be leaving the building?
Could MIke Carvajal finally be leaving the building?

The Oregon Capital Chronicle reported yesterday that Colette Peters, director of Oregon’s prison system, confirmed to the paper that she is a finalist for the BOP Director’s job.

She has been director of the Oregon Department of Corrections since 2012, where she is in charge of  4,400 employees and 12,124 prisoners.

As director of the Oregon prison system, she changed the agency’s reference to “inmates.” Oregon’s prisoners became “adults in custody.”

Forbes, As Biden Touts Action On First Step Act, Federal Prisoners Await Action From Bureau Of Prisons (June 4, 2022)

Oregon Capital Chronicle, Oregon’s prison director a finalist to lead federal prison system (June 15, 2022)

– Thomas L. Root

Balancing Accounts For Unused ETC Credits – Update for June 2, 2022

Leave a comment

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

DYER STRAITS

Three and a half years ago, the First Step Act became law amid great fanfare. One of the many provisions that held great promise for all concerned was the incentive-based programming scheme, that would let federal inmates earn credits that reduced their sentences for successful completion of programs designed to address their needs.

Such a program would reduce recidivism by ex-felons, thus benefitting both them and society.

mismanagement210419Trust the Federal Bureau of Prisons to turn a high-minded program into a furball. The BOP required almost two years to propose detailed rules for the implementation of the “earned time credit” program, rules which – by the way – were draconian in their application and reasonably calculated to strangle the ETC program before it began.

It took another 14 months (and a new Administration) for the BOP to finally adopt the rules, which rules – mercifully enough – did an about-face from what was proposed. But those rules, which among other things retroactively credited inmates with credit back to the day the First Step Act passed, created a whole new raft of problems.

Problems for people like Doug Dyer.  Doug was on CARES Act home confinement in December 2021 when he filed a petition for habeas corpus, demanding immediate release due to the application of First Step Act earned-time credits to which he claimed entitlement. The BOP had not yet adopted the new rules, and predictably, told the judge that Doug had nothing coming.

nothingcoming181018But a month after Doug’s filing the BOP adopted the final ETC rules. Doug (and thousands of other inmates) were credited with 540 ETC days. The same day the rules were adopted, the BOP granted Doug immediate release from home confinement (51 days before his normal release date). The government then moved to dismiss the habeas corpus as being moot, because Doug had gotten what he wanted.

Doug opposed the government’s motion, arguing that because only he could only use 51 days of credit out of the 540 he was awarded, he should get to use the balance to reduce his supervised release time.

The district court agreed, reducing his supervised release by 489 days. The court ruled “the relevant statutory provision provides that ‘[t]ime credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in… supervised release’. 18 U.S.C. § 3632(d)(4)(C). Therefore, the unambiguous, mandatory language of the statute provides that earned-time credits may be applied to a term of supervised release.”

So Doug got a year and a half off his supervised release time (about half of what he was to serve).

I generally don’t criticize a good pro-prisoner decision like this one, but Doug’s court is just plain wrong. The Court hung its hat on 18 U.S.C. § 3632(d)(4)(C), which says

Time credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in prerelease custody or supervised release. The Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.

There's nothing like getting your facts straight, Your Honor ...
There’s nothing like getting your facts straight, Your Honor… or the law, for that matter.

The District Court read this to mean that ETCs could be used to reduce the period of incarceration or supervised release. But the remainder of the subsection not only makes it clear that the term “supervised release” is being used as the alternative to “prerelease custody,” and that the subsection is to be read with reference to 18 U.S.C. § 3624(g).

And here’s the problem. Subsection 3624(g)(3) authorizes the Director of the BOP to “transfer the prisoner to begin any such term of supervised release at an earlier date, not to exceed 12 months, based on the application of time credits under section 3632.”  It does not authorize the Director to reduce the term of supervised release at all.

Read in conjunction with § 3624(g)(3), it’s pretty clear that § 3632(d)(4)(C)’s reference to “shall be applied toward time in prerelease custody or supervised release” is intended to mean the three options the BOP has for applying ETC credits: more halfway house or home confinement (the “prerelease custody” option) or release from custody up to 12 months early to begin one’s supervised release.

puzzled171201Given that no statute authorizes the BOP to reduce a prisoner’s supervised release, it’s hard to figure how a district court can grant habeas corpus to in essence demand that the BOP do so.

No matter. Doug’s supervised release was cut in half. But I strongly doubt that this decision will influence any other district court to do the same for the small subset of inmates in Doug’s position.

The opinion has not been picked up by LEXIS.

Order (ECF 16), Dyer v. Fulgam, Case No. 1:21-cv-299 (E.D. Tenn. May 20, 2022)

– Thomas L. Root