BOP Continues To Delay First Step Act Implementation Until 2022

When former President Donald J. Trump signed the First Step Act into law in 2018, its implementation could have started immediately. The timeline of the act should have been straightforward. First, the BOP develops and releases a risk and needs assessment. Then it completes a risk and needs assessment for each prisoner. Then, immediately after doing so, the BOP hits the ground running with evidence-based recidivism reduction programming and productive activities. The BOP finished the first two of those three steps in a relatively timely manner. And they’re ready and able to complete the third. But the BOP still isn’t letting federal prisoners get time credits under the First Step Act for their participation in evidence-based recidivism reduction programming and productive activities. Why has the BOP delayed implementation of the First Step Act? Apparently, it’s just because it can.

The BOP has been able to award First Step Act time credits since Jan. 15, 2020 at the latest.

Former President Donald Trump signed the First Step Act into law on Dec. 21, 2018. The First Step Act, 18 U.S.C. § 3632, sets forth the timeline for its implementation. Under subsection (a) of § 3632, the Attorney General had 210 days to develop and release a risk and needs assessment system. Then-Attorney General William Barr met that deadline when he released PATTERN on July 19, 2019. The release of PATTERN triggered another due date. As of that date, the BOP had 180 days to complete a risk and needs assessment for each prisoner under subsection (h)(1)(A). That 180-day deadline fell on Jan. 15, 2020, a deadline the BOP met, too. So, as of that date—Jan. 15, 2020—the BOP had completed a risk and needs assessment for every prisoner in its custody. 

That Jan. 15, 2020 date is significant. As of that date, the BOP had identified the risks and needs for all of the people in its custody. The BOP and federal prisoners were then in a place where they could begin working to address those risks and needs. They do this through “evidence-based recidivism reduction programming” and “productive activities” as set forth in the First Step Act. Because of their participation, they can achieve rehabilitation and release sooner with time credits they earn. Even the BOP’s “Frequently Asked Questions” page on its website recognized the importance of that date. The site asks: “When can inmates begin earning time credits?” The answer? “FSA Time Credits (FTC) may be earned for competition of assigned [Programs] or productive activities authorized by BOP and successfully completed on or after January 15, 2020.”

But, so far, the BOP has refused to do so, waiting until January 15, 2022 instead.

So federal prisoners have been earning First Step Act time credits for the past 18 months, right? Not so fast. The First Step Act gave the BOP a “[p]hase-in” period of two years to start providing First Step Act time credits. Specifically, the law directs the BOP to “provide such evidence-based recidivism reduction programs and productive activities for all prisoners before the date that is 2 years after the date on which the Bureau of Prisons completes a risk and needs assessment for each prisoner.” Again, the BOP completed the risk and needs assessment for each prisoner on Jan. 15, 2020. So it is required by law to provide evidenced-based recidivism reduction programs and productive activities to all prisoners “before” two years later, i.e., Jan. 15, 2022. The BOP has emphasized that Jan. 15, 2022 deadline throughout the entirety of its two-year “[p]hase-in” period.

Federal courts across the country have treated the Jan. 15, 2022 date as a clear-cut deadline, too. Most recently, in a case called Depoister v. Birkholz, a Minnesota federal court, quoting an Arkansas federal court, ruled that “under the Act’s two-year phase-in period, the BOP was given no later than ‘January 15, 2022 to provide evidence-based recidivism reducing programs and productive activities to all prisoners.’ ” This is true even though “the Act contemplates that the BOP will begin offering these programs to prisoners sooner than that,” the Court explained. ” ‘During’ the phase-in period, for example, the Act requires that ‘priority for such programs and activities shall be accorded based on a prisoner’s proximity to release date,’ ” the Minnesota Court elaborated, quoting 18 U.S.C. § 3621(h)(3). Yet, according to the BOP and courts across the country, nothing can be done until that date.

Why is the BOP waiting until January 15, 2022 even though it doesn’t have to? Because it can.

The BOP’s position, which courts have almost universally accepted, is relatively simple. You can’t make us award prisoners time credits under the First Step Act until the statute makes us, the BOP claims. In a general sense, that argument has merit. At least one provision in the statute, 18 U.S.C. § 3621(h)(4), states that, “[b]eginning on the date of enactment of this subsection, the Bureau of Prisons may begin to expand any evidence-based recidivism reduction programs and productive activities that exist at a prison as of such date, and may offer to prisoners who successfully participate in such programs and activities the incentives and rewards described in subchapter D.” (Emphasis added). The fact that Congress used the word “may” arguably supports the BOP’s “we don’t have to yet” position.

But the idea that the BOP, a federal agency with more than 130,000 prisoners in their custody, would take a “we don’t have to yet” position simply for the sake of doing so is frightening. Yet, so far, the BOP has argued, and courts have routinely held, that the BOP need not award First Step Act credits until Jan. 15, 2022, regardless of its reason for refusing to do so. In Depoister v. Birkholz, neither the BOP nor the federal court explained why the BOP shouldn’t award time credits for the prisoner’s successful participation in evidence-based recidivism-reducing programs and productive activities. Instead, the court simply said, the BOP just doesn’t have to. “Because the First Step Act leaves the BOP discretion to apply earned time credits until expiration of the First Act’s two-year phase-in period, [the prisoner’s] Petition is premature.”

The practical consequences of the BOP’s delayed implementation are obvious.

It’s not hard to imagine why the BOP’s decision to delay implementation of the First Step Act has become a problem. Government officials tell prisoners that participation in evidence-based recidivism-reducing programs and productive activities will help them get released sooner. But, so far, that hasn’t been the case. Instead, their participation has led to nothing but failed lawsuits.

The prisoner in the Depoister v. Birkholz case is a perfect example. Toby L. Depoister claims he has earned, or soon will earn, 154 days of time credit by participating in the BOP’s programming and employment. If his calculations are correct, and there’s nothing in the court decision to suggest they aren’t, his release date would be Aug. 25, 2021, a date right around the corner.

But that date will come and go, and Depoister will remain locked up, even though the First Step Act is almost three years old now. Depoister has participated in evidence-based recidivism-reducing programs and productive activities under the First Step Act. Those programs and activities have rehabilitated him in the exact same way that they will in 2022. But, according to the Minnesota federal court and other courts across the country, he’s stuck waiting until Jan. 15, 2022, anyway. Why? The answer is, ultimately, quite simple. He, like hundreds or thousands of other prisoners just like him, is stuck there simply because the BOP wants it that way. That’s not a very good reason.