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New BOP Director Clears Up First Step Act Implementation

by Benjamin Tschirhart

On November 18, 2022, almost four years after Congress passed the First Step Act (FSA) to reduce the population incarcerated by the federal Bureau of Prisons (BOP), new BOP Director Colette Peters finally clarified the agency’s policy to implement the law.

FSA was signed into law by former Pres. Donald J. Trump (R) in December 2018, but BOP has been behind schedule in implementing its provisions ever since. It took the agency 42 months to manually complete sentence recalculations for just the first 6% of its 141,600 prisoners. [See: PLN, Oct. 2022, p.19.]

Of course, BOP doesn’t have the staff to manually calculate sentence credits for so many prisoners, leaving it to rely on an “auto-calculator” program that has been repeatedly delayed. It was not even slated to be rolled out until August 31, 2022. Then, when it finally went live a month later, the “auto-calc” erroneously erased thousands of credits due to a glitch.

Sentence credits provided under FSA are known as FSA Time Credits, or FTCs. The law provides ten days of sentence credit for every 30 days of a prisoner’s participation in Evidence-Based Recidivism Reduction (EBRR) programs or Productive Activities (PAs) that “maintain or work toward achieving a minimum or low risk of recidivating.” For prisoners with a low recidivism risk score — as calculated by BOP’s PATTERN tool [See: PLN, Sep. 2021, p.53] — there is an additional credit of five days for every 15 days of participation.

The new policy provides a list of EBRR programs that qualify for FTCs, ranging from trauma counseling to Victim Impact Classes. Also outlined are PAs including hobby crafts, religious services and even participation in an Inmate Financial Responsibility plan to satisfy court-ordered restitution.

Why did this take BOP so long? Good question. The agency made it harder than the law intended for some prisoners to earn FTCs when it decided not to count any credits earned within 18 months of slated release. At a Senate judiciary committee hearing in April 2021, former BOP Director Michael Carvajal was grilled about this by Sen. Dick Durbin (D-Ill.), who reminded the agency leader that lawmakers “came up with the First Step Act … to reduce overcrowding and to allow those prisoners, who we perceive not to be a threat to society, to have a chance to leave that prison setting.”

“Why [were more of them] … not placed in home confinement?” Durbin demanded.

Carvajal was ultimately replaced with former Oregon Department of Corrections Director Colette Peters in August 2022. [See: PLN, Sep. 2022, p.56.] Apparently more concerned with the will of the federal legislature, her clarification eliminated the 18-months-from-release ban on earning FTCs and sought to address two other issues concerning eligibility for the credits.

First, a prisoner’s total potential earnable FTCs will be calculated from his first Unit Team meeting, allowing an estimate of the amount of time that can be earned by participating in EBRR programs and PAs, as well as showing any projected change to his release date.

Second, FTCs were foreclosed to prisoners who had not taken the BOP’s Risks and Needs survey. No matter whether they had ever been asked to complete it, all were placed in ‘refusal’ status, leading to the glitch that caused the “auto-calc” program to delete FTCs for so many. But that status is now reset, and all prisoners have another chance to take the survey and change their status.

After the latest roll-out of “auto-calc” on January 9, 2023, a tweet was sent out by Rabbi Moshe Margaretten of Tzedek, an organization that pushed hard for FSA:

“Today thousands in federal prisons and community release got the good news that they’ve at last received the credits they earned under the #FirstStepAct.”

Because of BOP delays in training its staff in FTC eligibility, however, many of those prisoners have been forced to wait out delays in their releases. For others like them, there is BOP’s lengthy administrative remedy. If that fails, there is a habeas corpus petition under 28 U.S.C. § 2255. See: First Step Act of 2018 - Time Credits: Procedures for Implementation of 18 U.S.C. § 3632(d)(4) – (Nov. 18, 2022). 


Additional source: Forbes

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