Tag Archives: FTCs

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

Former BOP Official Says “Wait Until The Halfway House Has Space” Is A Fable – Update for October 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.

THE ANT AND THE GRASSHOPPER

antgrasshopper241021Most kids recall Aesop’s fable about the grasshopper who played away the summer while his neighbor, the industrious ant, worked dawn to dusk storing food for the winter. You can imagine the ending: the grasshopper. When the cold winds blow, the hungry grasshopper begs for food from the ant but is refused.

The situation sums up the virtues of hard work and planning for the future, a lesson lost on the Federal Bureau of Prisons when it came to wisely using the years following the First Step Act’s passage to expand access to halfway house space.

Admittedly, 18 USC § 3624(g) is a long, convoluted subsection. But that’s no excuse for the BOP skipping the very last paragraph, which says “[t]he Director of the Bureau of Prisons shall ensure there is sufficient prerelease custody capacity to accommodate all eligible prisoners.” After all, “shall” means “shall” and “all” means “all.”

The grasshopper was reduced to begging. The BOP, on the other hand, has addressed its lack of preparation by vigorously arguing that nothing was its fault and that inmates with FSA credits earned by successfully completing programming that reduces recidivism can use them for halfway house or home confinement only at the whim of the halfway houses. The BOP has told courts that a prisoner has no constitutional right to be placed in a particular facility and that the BOP has exclusive authority and discretion to designate the place of confinement.

The shortage of halfway house or home confinement capacity for all of the FTCs people have to redeem is no secret. BOP Director Collette Peters testified about it before Congress last summer. Her lament that the BOP has a “capacity” problem – like the government’s use of the shortage as a reason FTCs cannot be redeemed – has a flavor of John Belushi as Jake Blue, kneeling in the muck in front of Carrie Fisher, blubbering that his tux had been at the cleaners and that “it’s not my fault.”

fault200814What has been a secret, however, is that the BOP apparently has been fully aware that “shall” means “shall,” and that it is obligated to place prisoners in halfway house or home confinement when their FTCs dictate, not when the halfway house says so. In a remarkable article published this week in ExpertClick, former BOP official and consultant Bruce Cameron and recently retired BOP Unit Management Section Chief Susan M. Giddings – candidly acknowledge that “[t]he BOP has no discretion to deny or delay transfer to prerelease custody for any reason, including the lack of physical space.”

It is not surprising that Bruce would state this obvious fact. He retired from the BOP 11 years ago and has run Federal Prison Authority, a consultancy that (among other things) assists people with RDAP and placement in community programs ever since. But Dr. Giddings – whose declarations have supported any number of government oppositions to prisoner habeas petitions since First Step – only retired from the BOP five months ago. As the “go-to” BOP official on all matters related to FTCs, she would have been privy to the BOP’s thinking when she retired in the same month as the remarkable Woodley v. Warden decision was handed down by a district court in Kansas.

In the ExpertClick article, Susan and Bruce argue that the Woodley decision has limits that are easily overlooked. The Woodley court ruled that while the BOP must place an inmate so that she may use all of her FTCs, the agency “retains its discretion regarding the type and location of placement.” They focus on the Woodley court’s caveat that “the BOP retains the discretion to decide whether to transfer the petitioner to a [halfway house] or home confinement, or even whether to transfer to petitioner to early supervised release[…] Nor does the Court require that petitioner be placed in any particular [halfway house]; thus, the BOP retains the discretion to choose the particular prerelease facility.”

Petitioner Woodley could not be placed in a Tampa halfway house in time to use his FTCs, so pursuant to the court’s order that it do something to place him, the BOP sent him to one in Orlando, 70 miles away. Susan and Bruce complain that by requiring placement so as to use all of a prisoner’s FTCs,

Congress gutted the real and vital purpose of reentry services. Yet, that is the real issue and impact of Woodley. For all their talk, Congress failed to include participation in a meaningful prerelease community program as a part of the FSA, literally contradicting the purpose of the Second Chance Act. So, whether an incarcerated person is placed 5, 50, or 500 miles from their home and community, all that matters is that they were transferred.

outtahere230914It is unlikely that an inmate seeking to cash in his FTCs cares much about the meaningfulness of the “prerelease community program” to which he is sent. What is noteworthy to prisoners is that experts – especially Dr. Giddings, only months from having been at the center of BOP decision-making on all matters related to FTCs – accept as a given Woodley’s holding that “[t]he BOP has no discretion to deny or delay transfer to prerelease custody for any reason, including the lack of physical space.”

Woodley v. Warden, Case No. 24-3053, 2024 USDist LEXIS 87521 (D.Kan. May 15, 2024)

ExpertClick, Woodley v. Warden Revisited: Time Credits, Prerelease Placement, and Agency Discretion (October 17, 2024)

House Subcommittee on Crime And Government Surveillance, Testimony of Colette Peters (July 23, 2024)

– Thomas L. Root

You Can Slice a Cucumber, But Not a Federal Sentence – Update for October 16, 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.

2ND CIRCUIT DASHES § 924(c) HOPES FOR FTC CREDITS

Everyone knows that the First Step Act excluded people with 18 USC § 924(c) convictions (using, carrying or possessing a gun during and in relation to a drug offense or crime of violence) from getting FTCs (also called FSA credits). And, no, there is no move afoot in Congress to change as much as a jot or a tittle of First Step, especially § 924(c) eligibility.

slicing241016But § 924(c) sentences have to be served consecutively, leading a number of inmates to make the reasonable argument that they should be denied FTCs only during the part of their sentence that represents the § 924(c) sentence. So if you got 84 months for selling marijuana and a consecutive 60 months for carrying a gun while you did it, the argument is that you should be allowed to earn FTCs for 84 months, the non-924(c) part of the sentence.

That’s what Charles Giovinco argued in a district court. He got shot down, and last week, the 2nd Circuit agreed. The 2nd ruled that under 18 USC § 3584(c), “multiple terms of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment. Pursuant to this aggregation provision, a prisoner is serving a sentence for any offense that is part of his aggregated term of imprisonment. Accordingly, the Bureau of Prisons must aggregate a prisoner’s sentence pursuant to § 3584(c) for the administrative purpose of determining his eligibility for FSA time credits under § 3632(d)(4).

Giovinco v. Pullen, Case No. 23-251, 2024 U.S.App. LEXIS 25348 (2d Cir. Oct 8, 2024)

– Thomas L. Root