We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
MAKING A VIRTUE OUT OF FSA NECESSITY
The Bureau of Prisons has announced a change in 28 CFR § 523.42(a), effective September 30, 2026. The change makes an inmate eligible to earn First Step Act credits “after the inmate’s term of imprisonment commences.” Currently, the rule says that eligibility begins on “the date the inmate arrives or voluntarily surrenders at the designated Bureau facility where the sentence will be served…”
This should be a small but welcome deal for FSA-eligible inmates, who on average spend 60 days from their sentencing date (when their BOP imprisonment begins) to the date they arrive at their prison. That 60 days will net them an additional 20 days of FSA credit.
Writing in Forbes, Walter Pavlo (whose work I admire) was effusive in his praise for the “significant” progress made in FSA implementation under BOP Director William Marshall III.
Marshall deserves kudos for advancing FSA implementation more than his predecessors, but praising him for this rule change makes a virtue of necessity.
Pavlo notes in passing that “[t]he change followed a series of court decisions finding that the BOP’s previous regulation conflicted with the First Step Act. The BOP specifically cited decisions including Miles v. Bowers and Sharma v. Peters in explaining why it was removing the restriction….”
No fooling. It was almost two years ago that Sharma v. Peters depantsed the BOP’s § 523.41, which denied FSA credit to inmates while out on writ or in administrative detention (the SHU) but not in disciplinary segregation. Last April, both the 1st Circuit and 4thCircuit ruled that the BOP’s rule denying FSA credits until arrival at the designated prison and completion of an initial review was contrary to the FSA. The Miles v. Bowers court ruled:
[T]he statutory obligation to provide prisoners “with the opportunity to actively participate in” EBRR programs during “their entire term of incarceration,” 18 USC § 3621(h)(6), is incompatible with the BOP’s claim that it can refuse to credit prisoners’ participation in programming that it later determines meets the prisoners’ “specific criminogenic needs” simply because that participation preceded the assessment that identifies those needs.
Pavlo argues that “[t]he BOP did something unusual and useful in announcing this change. It calculated the expected financial impact. The agency estimates that expanding the period during which prisoners can earn Time Credits will save approximately $54.1 million annually.”
In fact, the BOP – which only a few months ago was resisting cleaning up its rule – did what it had to do. It deserves no pats on the head for fighting the clear disconnect between its rule and the law for two years before finally surrendering to common sense and the courts.
Forbes, Bureau of Prisons Upgrades First Step Act With More Credits (Sept 18, 2026)
Federal Register, First Step Time Credits – Revision, 91 FR 55740 (Aug 31, 2026)
Miles v. Bowers, Case No. 25-1291, 2026 U.S. App. LEXIS 11998 (1st Cir. Apr 27, 2026)
Benson v. Warden, Case No. 24-6713, 2026 U.S. App. LEXIS 11454 (4th Cir. Apr 22, 2026)
~ Thomas L. Root