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4th Circuit Restricts FSA Credit Eligibility – Update for January 20, 2026

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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.

4TH CIRCUIT HANDS DOWN TROUBLING FSA CREDIT DECISION

From the 4th Circuit last week came the first appellate decision on First Step Act credit eligibility, a 2-1 decision that is as dangerous as it is superficial.

William White is locked up until 2037, but he was actively earning FSA credits at a West Coast Bureau of Prisons facility. When he was transferred to a facility on the East Coast, Bill spent a few days in transit at FTC Oklahoma City. After arriving at his destination joint, he found that he had been denied three days of programming credit while he was at the FTC because he was in transfer status. He filed a 28 USC § 2241 petition for habeas corpus, arguing that he had been denied due process by having his incarceration unlawfully extended.

The district court denied Bill’s petition, ruling that denial of FSA time credits for the three-day transit period was consistent with the BOP’s regulations and policy statement. The district court explained that an eligible prisoner in transit (such as Bill) generally “are not ‘successfully participating’ in [recidivism reduction programs] and accordingly they are not able to accrue [FSA time credits].” Bill appealed.

Last week, the 4th Circuit upheld the District Court’s denial of Bill’s petition . The appeals court held that

[t]he FSA provides that “[a] prisoner… who successfully completes evidence-based recidivism reduction programming or productive activities, shall earn time credits” based on time participating in such programming.  Because White does not claim that he participated in such programming or activities during the three days he was in transit, he cannot claim that he “earned” FSA time credits… Moreover, White’s argument that the BOP should have offered him such programming during his transfer so that he could have earned the FSA time credits cannot, even if successful, lead to a ruling awarding him such credits because he still would not have shown that he had earned them by actually participating in the programming, as required by the FSA.

The opinion is concerning for a reason that goes well beyond the lost three days. Bill contended that he should have gotten the credit because he had “opted” into FSA programming but was not actually participated in a program at that time. The BOP bases the award of FSA time credits on a prisoner’s “earning status” – that is, his or her willingness to participate in programming even if the programming has a waiting list or is just plain unavailable. The 4th expressed skepticism that this program was consistent with the First Step Act. The Circuit observed:

Although the BOP’s program statements and practice about this approach are neither clear nor consistent, we conclude that if they reflect that the BOP awards credits for non-participation, that practice goes beyond the text of the FSA and its regulations. But more importantly, the BOP’s decision to award credits absent actual participation does not expand its statutory obligations under the FSA. The law remains clear that a prisoner’s statutory right to FSA time credits is tied to his actual participation in qualified programming. And in the absence of evidence that White participated in programming during his three-day stay at the Transfer Center, the BOP did not have a statutory obligation to award him FSA time credits for those days.

Beyond that, the 4th concluded that the FSA time credit program does not create a protected liberty interest for prisoners, an interest which must exist in order for a prisoner to successfully maintain a § 2241 habeas corpus. The Circuit ruled that “because the text of the FSA does not create a statutory entitlement for a prisoner to earn FSA time credits, we conclude that White did not have a constitutionally protected liberty interest in earning them, and the BOP therefore did not violate his rights under the Due Process Clause in denying them to him.”

In a detailed and biting dissent, Judge Robert King complained that “under the majority’s decision, the BOP is excused, without clear limitations, from providing programming to prisoners every day; the BOP can award FSA time credits to some prisoners based on their mere “earning status,” but require actual participation of others; prisoners who claim a wrongful denial of programming can seek only future programming; and no back credits can be awarded unless a prisoner can come up with evidence of actual participation, something that, on this record, the BOP itself does not track. As such, the majority does not just flout the plain text of the FSA and the BOP’s policies and practices. Its decision also threatens chaos, unequal treatment, and other unfairness in the FSA time credit system.”

White v. Warden, Case No. 23-7116, 2026 U.S. App. LEXIS 793 (4th Cir. January 13, 2026)

~ Thomas L. Root

Exclusions From FSA Credits Are Easy To Come By – Update for November 14, 2025

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We share news and provide commentary on federal criminal justice issues, mainly focusing on trial and post-conviction topics, legislative efforts, and sentencing debates.

FSA CREDITS FOR AGGREGATE SENTENCES TAKE IT ON THE CHIN

Greg Bonnie is serving a 120-month drug-trafficking sentence and a consecutive 24-month revocation sentence tied to a 2005 conviction that included an 18 USC § 924(c) gun count.

A § 924(c) conviction is one of about 63 different convictions listed in 18 USC § 3632(d) that will disqualify someone from receiving First Step Act credits. Those credits are awarded as an incentive to inmates to complete programs that are proven to make them less likely to commit new crimes once they are released from prison.

A couple of asides here.  First, when the First Step Act programs were developed, experts estimated that they would substantially reduce recidivism. The actual results through June 2024, however, showed that the reduction was far greater than what even the most optimistic projections had anticipated. People whose programming placed them in the “low” recidivism category were estimated to have a repeat-offender incidence of under 25%. Real-world results showed that the repeat-offender incidence for almost 13,000 “low-risk” inmates over four years was 11.4%.

Second aside: The First Step Act directed the Attorney General to issue an annual report on the effectiveness of the Act’s several programs for five years, ending with June 2025, including review of the FSA credits and recidivism. Unfortunately, the current Administration’s Attorney General has been too preoccupied with pardoning people on the President’s preferred list, prosecuting sandwich throwers, purging the disloyal, and pursuing the President’s enemies to honor its obligation. We are thus six months overdue for the final 2025 report, and thus we’re having to make do with what old data we have.

Back to FSA credits: The list of convictions excluded from FSA credit makes sense only in a very political way. If your co-defendant possessed a gun while selling the marijuana you two raised, your § 924(c) disqualifies you. If you rob a bank and beat up a teller, you’re qualified. If you download child porn, you are disqualified. If you hire a hit man (who turns out to be an undercover cop) to kill your spouse, you’re OK.

The exemption of the § 924(c) offense from FSA credit was an 11th-hour deal Senate Majority Leader Mitch McConnell made with Sen. Ted Cruz (R-TX) and Sen. Tom Cotton (R-AR) in order to corral their support for the First Step Act. As you may recall, § 924(c) requires that a court impose a mandatory consecutive sentence of at least five years on anyone convicted of possessing, using or carrying a gun during a crime of violence or drug offense. Stick a Glock in your waistband while selling a guy a 20-lb bale of marijuana you and your cousin grew back in the woods? The Guidelines will score you at a base 14 for that sale, barely worth 15 months in federal prison. But the gun in your waistband will add another five years to the sentence.

And now for Greg: In 2005, Greg was sentenced to 120 months for his bad judgment to engage in a drug trafficking offense and a consecutive 60 months for having the even worse judgment to possess a gun while doing it. In 2017, he completed the sentence in began an 8-year term of supervised release.

When it came to dealing drugs, Greg was learning-challenged (or his time in BOP custody was so much fun he wanted to repeat it). Whatever the reason, Greg resumed the drug trade while on supervised release. In 2021, he was again convicted of drug trafficking and received another 120-month sentence. Because the new crime also violated his supervised release, Greg received a consecutive 24-month sentence, for a total of 144 months.

The Bureau of Prisons is authorized by law to aggregate sentences, meaning that multiple sentences are blended into a single aggregate term for administrative purposes. That worked against Greg here: the BOP decided that because one-third of the Greg’s prior sentence was for a § 924(c) violation, and because one-sixth of his current sentence (24 months of a total 144 months) was for a supervised release violation stemming from the prior sentence, Greg was serving a sentence for a violation of § 924(c) and was ineligible for FSA credits.

The math is interesting. About one-eighteenth of his current sentence can be attributed to the § 924(c) violation. Presumedly, if the court had sentenced him to one day additional incarceration for the supervised release violation – making the § 924(c) share of the current sentence less than 1/9000th of the total sentence – Greg would still be considered ineligible for FSA credits.

Notwithstanding the intellectual force of my reductio ad absurdum argument, not to mention the serious question of whether serving a prison term for violating a term of supervised release can fairly be considered to be serving a prison term for any of the counts of conviction that led to the original prison term), the BOP denied him FSA-credit eligibility for the entire 144-month sentence. Under 18 USC § 3584(c), multiple terms of imprisonment are to be treated “as a single, aggregate term of imprisonment” for administrative purposes. Thus, the BOP took the view that Greg’s 24-month supervised release revocation term disqualified him from earning FSA credits for his entire 144-month sentence.

This was no mean matter: Greg’s maximum FSA credits would have been about 50 months, entitling him to a year off of his sentence and the right to spend the remaining 38 months’ worth of credit or so on home confinement or in a halfway house.

Greg filed a 28 USC § 2241 petition for habeas corpus, arguing that the BOP could deny him FSA credits only for the 24-month supervised release revocation. The district court denied his petition, and last week, the 4th Circuit denied his appeal.

The issue was whether a federal prisoner serving multiple terms of imprisonment, some of which qualify for FSA credits and at least one tied to a conviction that is deemed disqualifying by 18 USC § 3632(d)(4)(D), may earn FSA credits during the non-disqualifying portion of the sentence.

In a 2-1 decision, the 4th held that because 18 USC § 3584(c) requires aggregation for administrative purposes, and because administering FSA credits is an administrative function, any prisoner serving an aggregate term that includes any disqualifying conviction is ineligible for FSA time credits for the entire aggregate term. The aggregate term is evaluated as a whole, and because the aggregate includes a disqualifying § 924(c)-based revocation sentence, Greg is ineligible for credits for the entire aggregate term.

The dissenting judge argued that the text “is serving a sentence for” naturally means ineligibility only while the disqualifying sentence is actually being served; once that period ends, eligibility resumes for the remaining eligible term.

The Circuit’s decision aligns with other circuits and mechanically emphasizes the statute’s categorical prisoner-level disqualification in a blunt-force kind of way.

Bonnie v. Dunbar, Case No 24-6665, 2025 U.S.App. LEXIS 28978 (4th Cir. Nov 5, 2025)

~ Thomas L. Root

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

Class Action FSA Credit Lawsuit Against the BOP Case Dismissed – Update for June 16, 2025

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DC COURT DISMISSES CHALLENGE TO BOP FSA CREDIT HALFWAY HOUSE PLACEMENT

You may recall that last December, the Criminal Law Reform Project, ACLU and mega law firm Jenner & Block sued the Bureau of Prisons for denying prisoners placement in halfway house or home confinement for the full term earned by their FSA time credits (FTCs).

Last week, the case died an ignominious death.

The case sought to certify a class action – the class being defined as anyone who now or in the future would be eligible to use FTCs for prerelease custody – to win a judicial holding that BOP rules sending a prisoner to halfway house only when the halfway house said it had space available violated 18 USC §§ 3624(g)(1) and (2). That statute says that when a prisoner has earned FTCs “in an amount that is equal to the remainder of the prisoner’s imposed term of imprisonment… [he or she] shall be placed in prerelease custody.” (Emphasis is mine).

BOP rules and policies, however, let the agency delay placement until space is available at a preferred halfway house, no matter how long that might be.

The suit argued that the BOP’s rules and policies violated 5 USC § 706(1) (contending that the BOP’s application of FTCs is “unlawfully held or unreasonably delayed”) and § 706(2) (the BOP’s rule on application of FTCs is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”). In its ruling, the U.S. District Court for the District of Columbia held that the plaintiffs could not justify establishing a class for litigating the 706(1) claim, because whether placing an FTC inmate in halfway house was “unreasonably delayed” past the eligibility date depended on the length of the delay and reasons for it, both questions that were individual to the inmate in question.

The District Judge held that a class action had been justified on the § 706(2) “arbitrary, capricious, an abuse of discretion” question, but the Court nonetheless granted the BOP’s motion to dismiss the count. The prisoners’ suit argued that § 3624(g)’s language that eligible prisoners “shall be placed in prerelease custody” means that the BOP must place them in halfway house as soon as they are eligible. But the Court disagreed. It held that the prisoners’

“shall-means-shall” argument overlooks that § 3632(d)(4)(C) does not specify when a prisoner must be transferred to prerelease custody. Instead, it provides that the BOP “shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.” 18 U.S.C. § 3632(d)(4)(C). Section 3624(g), in turn, establishes the criteria for eligibility. Neither § 3632(d)(4)(C) nor § 3624(g) says that the BOP must transfer a prisoner immediately upon achieving eligibility. Section 3632(d)(4)(C) is best read as a directive that identifies what group of prisoners the BOP must transfer into prerelease custody, not as establishing an immutable date by which the BOP must effectuate individual transfers.

The Court acknowledged that “some district courts have held in the habeas context that the FSA requires the BOP to transfer an individual prisoner to prerelease custody once they become eligible… None of these cases, however, presented the argument made here by Plaintiffs, which is that the FSA compels the BOP to transfer every prisoner on the date of eligibility.”

The 48-page decision is detailed and fairly well reasoned. While not slamming the door on lawsuits to force BOP compliance with timely placement of FTC prisoners, Judge Amit Mehta’s ruling highlights the procedural and substantive obstacles to doing so. As such, it should be required reading for those seeking to force the Bureau to send them to prerelease custody on their FTC eligibility date.

Crowe v. Federal Bureau of Prisons, Case. No 24-cv-3582, 2025 U.S. Dist. LEXIS 109052 (D.D.C., June 9, 2025)

– Thomas L. Root

Unintended Consequences for a Meritorious Sentencing Commission Proposal – Update for February 21, 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.

THE NAVARRO CONUNDRUM

Sharp-eyed reader Drew wrote last week to ask about the United States Sentencing Commission’s proposal to change the supervised release guidelines.

supervisedleash181107Supervised release – a term of post-incarceration control over a former prisoner by the US Probation Office during which the ex-inmate can be sent back to prison for violations of a whole list of conditions – is imposed as a part of nearly every sentence, despite the fact that “it is required in fewer than half of federal cases,” according to one federal judge. No one subjected to it especially likes it, which is why many have cheered the Sentencing Commission’s proposal to reduce its usage.

The proposed amendment now being considered would amend USSG § 5D1.1 to remove the requirement that a court reflexively impose a term of supervised release whenever a sentence of imprisonment of more than one year is imposed, so a court would be required to impose supervised release only when required by statute. For cases in which the decision to impose supervised release is discretionary, the court would be directed to impose it “when warranted by an individualized assessment of the need for supervision,” which the court would be expected to explain on the record.

Who could possibly complain about avoiding a term of supervised release, a period of post-incarceration control that, by some accounts, violates one-third of the people subjected to it?

Remember Peter Navarro, once a confidante of first-term President Trump and currently his Senior Counselor for Trade and Manufacturing? Petey suffered hideously as a federal prisoner for four whole months at FCI Miami in between his last and current White House gigs, doing time after being convicted of contempt of Congress.

You’re wondering, of course, who could possibly hold Congress in contempt?  Besides almost all of America, that is? Well, Pete did by refusing to testify before the House January 6th Committee.  He was sentenced to four whole months of incarceration. Last summer, as his endless sentence drew to a close, Pete petitioned his sentencing court for compassionate release under 18 USC § 3582(c)(1)(A), asking not that his sentence be cut but instead that the court add a few days of supervised release.

It was subtraction by addition. Pete wanted a few days of supervised release added to his sentence because of a quirk in the First Step Act. Under the Act, FSA credits – time credits that are earned for successful completion of programming intended to reduce recidivism – can be used for early release or halfway house/home confinement benefits. The Bureau of Prisons credits the initial FSA credits a prisoner earns to decrease the length of his or her sentence by up to a year under 18 USC § 3624(g)(3), but only if the prisoner has had a term of supervised release imposed as part of his sentence.

magahat250221Generally, the supervised release condition has not been a problem for prisoners because courts hand out supervised release like red MAGA caps at a Trump rally. However, a few sentences don’t have supervised release added to the tag end, such as very short ones or cases where an alien will be deported at the end of his term.

That happened to Pete, whose court imposed a four-month prison sentence without any supervised release afterward. This left Pete unable to use any of the 14-odd days of FSA credit he had earned to go home a couple of weeks early.

Pete’s creative legal team filed for the sentence non-reduction under § 3582(c)(1)(A), asking that the sentence be modified to add a little supervised release after Mr. Navarro’s four months in hell ended. The court didn’t bite, holding that the sine qua non of a sentence reduction motion was a request for an actual sentence reduction. Pete had asked for a sentence increase, and that could not be granted.

As a result, Pete barely made it out of his personal Devil’s Island in time to be flown by private jet to the Republican Convention in Milwaukee. (Incidentally, he emerged from prison as a dedicated BOP reformer, but that commitment seems to have waned since he made it back to 1600 Pennsylvania Avenue NW).

The Navarro episode illustrated Drew’s question: If supervised release were to be no longer imposed for many offenses, would that not also hobble a prisoner’s ability to earn the up-to-one-year-off that § 3624(g)(3) offers? Darn right – just ask President Trump’s Special Counselor on Trade and Manufacturing. Is this the USSC sneakily trying to take benefits away from some prisoners? Might the result of the proposed amendment’s adoption be a repeat of year-and-a-day sentences where judges impose a day of supervised release in order to allow defendants the full benefit of their FSA credits?

I suspect the Commission simply has not focused on the effect that its proposal would have on prisoners using FSA credits for shorter sentences under 18 USC § 3624(g)(3). The arcane FSA credit regime is not a matter that’s necessarily in the Sentencing Commission’s wheelhouse. The USSC’s proposal to encourage more judicious imposition of supervised release terms is generally laudable: it conserves US Probation Office resources to be spent on people who really need the post-prison supervision while will improve – rather than limit – rehabilitation for many.

adultsupervision240711(Examples: I had a fellow on supervised release tell me last week that a major trucking firm had been happy to hire him as a long-haul trucker despite his 20 years served for a drug offense until it learned he was still on supervised release. The company told him it could not hire him as long as he was on a US Probation Office tether but to call them the second he was done with supervised release, whereupon they’d be glad to put him in one of their rigs. I had another guy tell me that he couldn’t get life insurance to protect his wife and kids until he was off supervised release. Neither of these limitations helps a former prisoner re-integrate.)

We’ll have to see whether USSC tweaks its proposal to account for the unforeseen Navarro consequence when the final amendment package is adopted in April.

United States Sentencing Commission, Guidelines for United States Courts, 90 FR 8968 (February 4, 2025)

United States v. Thomas, 346 FSupp3d 326 (EDNY 2018)

Order, United States v. Navarro, ECF 176, Case No 22-cr-0200 (DDC, May 15, 2024)

– Thomas L. Root

A Fortnight of Clemencies? – Update for January 14, 2025

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BIDEN’S LAST WEEK (AND TRUMP’S FIRST ONE)

imouttahere250114Although time grows short, the White House has not yet walked back Biden’s promise to issue additional pardons and commutations before he leaves the White House for the last time.

Last week, Truthout.org called on Biden to include in his clemency announcement people serving life sentences under Sentencing Guidelines that have been changed (but the changes not being retroactive). Truthout said, “According to the Sentencing Project, ‘one in seven people in U.S. prisons is serving a life sentence, either life without parole, life with parole or virtual life (50 years or more), totaling 203,865 people’ as of 2021. This is the highest number of people in history — a 66% increase since 2003, the first time the census was taken. Many of these people facing ‘death by incarceration’ were sentenced under guidelines that are no longer used.”

Writing in Forbes, Walter Pavlo last week suggested that consistent with Trump’s desire to trim federal spending, he could double down on First Step Act implementation. Pavlo said, “Trump will likely be frustrated that more has not been done on the First Step Act since his first term in office… The purpose of the First Step Act was to put more minimum-security offenders back home sooner but that has not occurred to the level it could. More prisoners in the community means less reliance on aging facilities that Congress seems unwilling to fund to bring up to acceptable standards.”

creditsign181227Pavlo suggested increased Bureau of Prisons’ use of for-profit halfway houses, besides the network of nonprofit halfway bouses now relied on, and updating the BOP’s security and custody classification system to no longer exclude noncitizens and non-contact sex offenses from camps. As well, he said that the Trump Administration urge Congress to broaden FSA credits to include some of the 68 categories of offenses now prohibited from credits, including some sex offenses, some terrorism charges, threats against government officials and 18 USC § 924(c) gun charges.

Finally, he proposed expanding RDAP eligibility to include those without documented prearrest drug and alcohol use.

Pavlo argued, “The BOP’s challenges are unlikely to be solved through increased funding alone. Instead, the focus should be on fully implementing existing programs like the First Step Act and RDAP, revising outdated policies that hinder efficiency and working with Congress to make targeted legislative adjustments.”

All of this is so, but as a Federal News Network reporter noted a few weeks ago, “I don’t think [the BOP] is high on the Trump team’s agenda, but [it] is a deeply distressed agency.”

Conservative columnist Cal Thomas last week argued that some of the targets of Trump’s desire to save money “are familiar, but one that is never mentioned is the amount of money that could be saved by releasing or not incarcerating nonviolent offenders in the first place… That prison reform has not been on a top 10 list of issues for Republicans is no reason it can’t be added now. Saving money and redeeming a system that no longer benefits the incarcerated or the public is a winning issue.”

Last week, Fox News contributor Jessica Jackson wrote that in 2018, “Trump signed the First Step Act into law, delivering long-overdue reforms that both political parties had failed to achieve at the federal level for decades. It was a landmark moment… Now, as Trump returns to the White House, he has a historic opportunity to finish what he started. Two key reforms he could champion — modernizing federal supervision and expanding second chances — offer a chance to cement his legacy as the leader who transformed America’s approach to justice.”

trumpimback250114However, as of right now, the only criminal justice promise Trump has made is to promise to grant clemency to some or all of the 1,580 people charged or convicted of crimes arising from the January 6, 2021, riot on Capitol Hill.

Truthout.org, Biden Should Go Beyond Commutations for Death Row and Commute Life Sentences Too (January 8, 2025)

Forbes, How Trump Can Shake Up the Bureau of Prisons (January 6, 2025)

Federal News Network, Countdown to Trump II, and what to expect (December 26, 2024)

Washington Times, Prison and sentencing reform: Saving money in an overlooked place (January 6, 2025)

Fox News, Trump defied the odds to win a criminal justice victory in his first term. Could he do it again? (January 6, 2025)

Washington Post, The fate of nearly 1,600 Jan. 6 defendants depends on Donald Trump (January 6, 2025)

– Thomas L. Root

ACLU Drops Lump of Coal in BOP’s Stocking – Update for December 24, 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.

CLASS ACTION SUIT CLAIMS BOP VIOLATING FIRST STEP ACT ON FSA CREDIT RELEASES

The ACLU last Friday sued the Bureau of Prisons on behalf of eligible prisoners who are being denied the full use of credits awarded under the First Step Act because of insufficient capacity to place them in halfway house or home confinement.

roomatinn241224The lead plaintiff is Vanessa Crowe, a prisoner whose FSA credits entitle her to transfer to halfway house or home confinement today, according to the complaint. Although she should be spending the night before Christmas somewhere where no BOP creatures are stirring, she has been told by the BOP that she will not be transferred until May 2025 because there simply is no room at the halfway house inn.

The New York Times reported last Friday, “Tens of thousands of federal prisoners deemed to be at low risk of committing crimes again have found themselves in a similar predicament, languishing in lockup for as long as a year after they reached their official release date under the First Step Act, which intended to create a fast-track pathway to release.”

Credits – usable to reduce sentence length by up to a year and to provide additional halfway house or home confinement time – are awarded to prisoners for successful completion of programming designed to reduce recidivism. Evidence after five years shows a significant reduction in recidivism among people who have completed the programs.

The BOP has previously acknowledged that the halfway house/home confinement system has been overwhelmed by the sheer number of people with FSA credits to spend. Last summer, BOP Director Colette Peters told a Congressional committee, “There’s a lot of frustration with the adults in custody… We simply don’t have the capacity in the community.”

The lawsuit recognizes the halfway house/home confinement problem but claims the BOP has responded by deeming inmates’ use of FSA credits “as optional, rather than compulsory,” the Times said. The complaint itself states

Although the FSA provides that any earned time credits ‘shall be applied’ toward time in prerelease custody or supervised release where certain conditions are met… the BOP’s regulation provides that the BOP ‘may apply FSA Time Credits toward prerelease custody or supervised release’ where certain conditions are met… The BOP’s practice is consistent with its regulations. The BOP has taken the position in litigation, and the BOP’s employees have stated in fact declarations, that the BOP has discretion over whether and when to apply earned time credits.

(The emphasis is mine, not the complaint’s).

VanessacoalBOP241224The complaint seeks to represent as a class “all incarcerated people who have earned or will earn time credits under the First Step Act, who meet or will meet the prerequisites for prerelease custody in 18 USC 3624(g)(1), and who have not been or will not be transferred to prerelease custody on or before the date when their time credits equal their remaining sentences.”

The Times said BOP “officials did not immediately respond to a request for comment.”

New York Times, U.S. Prisons Flout Law by Keeping Inmates Past Release Date, A.C.L.U. Says (December 20, 2024)

Complaint, Crowe v. BOP, Case No 1:24-cv-03582 (D.D.C., filed December 20, 2024)

– Thomas L. Root

Thanksgiving Week: Stuffing Goes With Turkey – Update for November 26, 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.

STUFFING

Walter Pavlo reported in Forbes last weekend that the Bureau of Prison – despite being told by Congress in the First Step Act almost six years ago to expand halfway house capacity to accommodate prisoners using FSA credits, has increased contracted-for halfway house bed space by a paltry 1% in the last 6 years.

stuffedturkey241126The BOP Office of Public Affairs reported that as of January 1, 2019, the BOP was contracting for 10,408 halfway house beds. As of two months ago, the BOP contracted for 10,553 halfway house beds. Pavlo wrote that “the BOP is now telling some halfway house providers… that they are canceling some solicitations for additional capacity because of ‘budgetary and staffing considerations.’”

Pavlo reported, “Many prisoners and their families are telling me that case managers are telling them that there is no room at halfway houses, and the result is that many minimum security prisoners spend a greater portion of their sentence in prison rather than in the community… BOP notes that ‘many of the unfilled beds in a halfway house are at locations that are hard to fill or are outside of the release residence area of individuals requesting community confinement placement’.”

So the Bureau argues to prisoners that the halfway houses are stuffed without room for people, who therefore lose the benefit of their FSA credits. Pavlo says that’s a myth. He and former BOP Director Hugh Hurwitz surveyed halfway houses and BOP usage of them, finding that only 82% of the BOP’s contracted halfway house capacity is being used. What’s more, the halfway houses have even more space open than that, space the halfway houses would like to fill but is not under BOP contract.

halfwayhouse241126“BOP could look to modify those existing contracts to increase the number of beds available,” Pavlo wrote.

For now, it appears that the halfway house shortage has less to do with stuffed beds and more to do with BOP unwillingness to fill them.

Forbes, Bureau of Prisons Halfway Houses Must Change Due to First Step Act (November 23, 2024)

– Thomas L. Root

A Win for FSA Statutory Clarity – Update for November 21, 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.

COURT HANDS BOP LOSS ON FSA CREDIT COMMENCEMENT

In a detailed and lengthy decision, a Middle District of Alabama district court ruled on November 4th that otherwise eligible prisoners must start earning First Step Act time credits from the moment they are sentenced rather than when the BOP says they can.

prisoners221021As first blush, the issue seems pretty clear. Section 3632(d)(4)(A) of Title 18 says that a “prisoner, except for an ineligible prisoner under subparagraph (D), who successfully completes evidence-based recidivism reduction programming or productive activities, shall earn time credits…” Section 3635(4) defines a “prisoner” as “a person who has been sentenced to a term of imprisonment pursuant to a conviction for a Federal criminal offense, or a person in the custody of the Bureau of Prisons.”

You don’t have to be a lawyer to figure out that an eligible prisoner, therefore, is anyone who has been sentenced to prison for a federal crime (we’ll leave the other category, “a person in the custody of the Bureau of Prisons,” for another day), provided he or she has not been convicted for one of the 63 exempt crime categories — such as sex offense or using a gun in a crime in violation of 18 USC § 924(c), to name only two of the myriad of exclusions — and is not an alien with a final order of deportation. The exclusions leave about half of the people in BOP facilities eligible for FSA credits.

The BOP denied Sohrab Sharma 122 days of FSA credit, finding that he was not an “eligible prisoner” from the commencement of his sentence until he was finally delivered to FPC Montgomery and again when he was locked up and transferred for an unspecified violation of prison rules. Under 28 CFR § 523.42(a), a BOP-adopted rule, “[a]n eligible inmate begins earning FSA Time Credits after the inmate’s term of imprisonment commences (the date the inmate arrives or voluntarily surrenders at the designated Bureau facility where the sentence will be served).”

ambiguity221128The Court held that “the statute unambiguously addresses the question of when an inmate is eligible for FSA credits,” to which 28 CFR § 523.42 “adds a layer of eligibility not found in the statute [that] conflicts with its express language.”

The District Court ruled that an eligible inmate is entitled to FSA credits from the date the sentence commences under 18 USC § 3585(a) which “specifies ‘the date the defendant is received in custody awaiting transport to’ his initial BOP-designated facility as the date his or her ‘sentence to a term of imprisonment commences’ for purposes of determining whether he can begin to earn FSA time credits.”

The Court said, “The BOP must 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.”

Sohrab’s case was sent back to the BOP to determine whether he was an “eligible prisoner” for the purpose of those 122 days, instead of being categorically excluded because he was riding a bus or sitting in segregation.

While the decision is welcome, it is a district court opinion that has no binding precedential value in its own circuit, let alone anywhere else. The government being the government, count on the opinion having utterly no impact on how the BOP applies 28 CFR § 523.42 in any case other than Sohrab’s.

Sharma v. Peters, Case No. 2:24-CV-158 (M.D. Ala., November 4, 2024), 2024 U.S.Dist. LEXIS 199823

– Thomas L. Root

Home Confinement Authority Gathers Dust – Update for November 8, 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.

HOME CONFINEMENT AUTHORITY AS ‘SHELFWARE’

shelfware241108ABack in the days of the dinosaurs, when computer programs came on CD-ROMs or (even more antediluvian), on stacks of mini-floppies, many of us were familiar with the concept of “shelfware.”

Writing in Forbes last week, Walter Pavlo reminded us that the Federal Bureau of Prisons has its own version of “shelfware,” a provision in 18 USC § 3624(g)(3) that lets prisoners spend their First Step Act credits – days earned for successful completion of programming under 18 USC § 3632 – on sentence reduction, halfway house or home confinement.

When a prisoner has earned enough FSA credits to where his or her remaining sentence equals the number of FSA credits earned, § 3624(g) requires that the BOP use those credits for one or more of the three options provided. The BOP’s practice is to first apply credits to sentence reduction: up to 365 credits can be used to reduce a sentence by a like number of days. The BOP has been diligent about this, and prisoners have been able to watch their sentences shorten on a monthly basis as FSA credits are earned.

Once the sentence reduction has been maxed out at 365 days, the balance of the credits is to be applied to additional halfway house or home confinement. Pavlo points out that “[t]he First Step Act gives the BOP a lot of discretion to place prisoners in the least restrictive, and least costly, confinement.” While the BOP has sole discretion to decide what that confinement will be, but it must be one of the two.

nobrainer241108A BOP decision to use its home confinement authority should be a no-brainer: The halfway houses are filled, causing prisoners to be denied the use of their credits despite their absolute statutory right to them. Home confinement, however, lacks the space limitations (at least not to the same degree).

Unsurprisingly, the BOP has left it home confinement authority on the shelf. As Pavlo observes, the BOP’s “interpretation of the First Step Act at every turn has been to minimize the use of the law to return prisoners to society sooner. The BOP has the law behind it to move thousands more prisoners into the community and to home confinement, if it only had the will to do so.”

Trust the BOP to mismanage things. Pavlo notes that

[p]risoners with 18 months of First Step Act toward prerelease custody should be sent directly to home confinement but they are languishing in halfway houses using resources they do not need. Other prisoners who are not First Step Act eligible and who have longer prison terms, are being passed over for placement in halfway houses in favor of those on First Step Act. The costs are now higher because a prisoner is staying in a higher security prison because there is no halfway house and a minimum security prisoner is stuck in a halfway house when they could be at home.

What he does not mention is that other prisoners entitled by law to the benefit of FSA credits they have earned are being denied halfway house placement because the places are full, in part with prisoners the BOP could move to home confinement.

The BOP could save money, too. When halfway houses monitor people on home confinement, it charges the BOP about half the cost of keeping them in halfway houses. According to the BOP, an inmate in home confinement cost an average of $55.26 per day as of 2020 —less than half the cost of an inmate in secure custody.

Moneyburn170208President-elect Donald Trump, as one of his plethora of promises made during the campaign, said he would slash federal spending. His disdain for anything related to the DOJ is well known. In a November 7 Forbes article, Pavlo said, “[L]ook for an unhappy Trump look for more ways to cut costs at the BOP. In 2018 when Trump made the cuts the BOP’s budget was $7.1 billion. The BOP has asked for $8.6 billion in FY2025 and another $3 billion to bring its facilities up to date. Spending at these levels is simply not going to happen.”

The BOP is required to let prisoners spend their FSA credits. It may be compelled by circumstances and budget to push FSA credit users, especially those who are minimum security and recidivism risk, to home confinement. Even now, doing so would make good sense, which leads commentators like Pavlo to wonder why the agency hasn’t done so.

Forbes, Bureau of Prisons Could Do More To Send People Home, Why Aren’t They? (October 30, 2024)

Dept of Justice, Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, 88 FR 19830 (April 4, 2023)

Forbes, The Bureau Of Prisons Under A Trump Administration (November 7, 2024)

– Thomas L. Root