DOJ Press Release, BOP Rule on FSA Time Credits Exceed Expectations

Anyone who has been paying attention to the implementation of First Step Act (FSA) time credits by the Bureau of Prisons (BOP) over the past three years knows how important of a day Jan. 15, 2022, is. On that date, the BOP, the Department of Justice (DOJ) and countless federal courts have promised, federal prisoners will finally receive all of the time credits they’ve earned over the past two-plus years.

For months, however, those in BOP custody, their loved ones and prison reform advocates across the country have worried about what Jan. 15, 2022, would actually look like. Let’s make one thing clear from the outset: we still don’t really know. What the DOJ and the BOP say they will do on paper doesn’t always line up with what they do in reality. But, with that giant caveat in mind, the DOJ’s announcement on First Step Act time credits this morning, as well as the BOP rule that came with it, seem like good news.

The BOP has already started releasing people who have earned enough First Step Act time credits.

In a press release issued this morning, the DOJ formally announced its new rule implementing the FSA time credits program. “Today,” the press release begins, “the Department of Justice announced that a new rule has been submitted to the Federal Register implementing Time Credits program required by the First Step Act….”

Then the press release highlights the first big piece of good news. “As part of the implementation process, the Federal Bureau of Prisons (BOP) has begun transferring eligible inmates out of BOP facilities and into either a supervised release program or into Residential Reentry Centers (RRCs) or home confinement (HC).” (Emphasis added.) Put more simply, the BOP is already releasing people. Great news.

“The First Step Act, a critical piece of bipartisan legislation, promised a path to an early return home for eligible incarcerated people who invest their time and energy in programs that reduce recidivism,” said Attorney General Merrick B. Garland according to the press release. “Today, the Department of Justice is doing its part to honor this promise, and is pleased to implement this important program.”

The BOP pledged to apply FSA time credits to those who are immediately eligible for release or close to it.

The second piece of good news is that the BOP plans to release people in a common-sense way. “Implementation will occur on a rolling basis, beginning with immediate releases for inmates whose Time Credits earned exceed their days remaining to serve, are less than 12 months from release, and have a Supervised Release term,” the press release states. “Some of these transfers have already begun, and many more will take place in the weeks and months ahead as BOP calculates and applies time credits for eligible incarcerated individuals.”

It’s fair to criticize the DOJ and BOP in this regard. Congress gave both federal agencies two full years to “phase-in” First Step Act time credits. As I’ve explained before, there was no reason for the DOJ and BOP to purposelessly wait until Jan. 15, 2022, to apply time credits that people have been earning for years. The “phase-in” period recognized that applying credits would take time, and Congress gave the BOP two years to use accordingly.

But the BOP didn’t use that two-year phase-in period to gradually roll out First Step Act time credits. And the DOJ successfully defended that position in all but two federal courts over the past year and a half. Nevertheless, there’s no way to go back in time and fix that problem now. Instead, the most logical approach is to immediately begin releasing those eligible for release. And that’s precisely what the BOP has pledged to do.

The new rule fix some of the biggest problems with FSA implementation, including the start date for time credits.

In addition to announcing that the BOP had already “begun transferring eligible inmates out of BOP facilities” and that “[I]mplementation will occur on a rolling basis, beginning with immediate releases for inmates whose Time Credits earned exceed their days remaining to serve, are less than 12 months from release, and have a Supervised Release term,” the DOJ’s press release also includes the new rule, which comes with its own good news.

In the new rule, the DOJ and BOP make it clear that “[a]n eligible inmate begins earning FSA Time Credits after the inmate’s term of imprisonment commences….” So, for those whose federal prison sentences are starting now, this means there is no waiting period. As soon as your sentence starts, so does your ability to earn FSA time credits. Great news.

What’s more significant though is how the DOJ and BOP changed their approaches to the start of FSA time credits. “An eligible inmate, as defined in these regulations,” the new rule states, “may earn FSA Time Credits for programming and activities in which he or she participated from December 21, 2018, until January 14, 2020.” (Emphasis added.) Originally, the BOP wanted to only count time credits earned after Jan. 15, 2020. The new rule changes that, giving incarcerated people an extra year-plus of incentives for programs and activities they’ve completed.

As the BOP put it in its explanation, “the Bureau amends this final rule to allow inmates eligible under the First Step Act to receive retroactive Time Credits for programming and activities they participated in starting on December 21, 2018, the date of the FSA’s enactment.” Again, great news.

Time credits will retroactively start on Dec. 21, 2018, and the BOP has a plan to go back in time to count them.

Not only has the BOP pledged to retroactively apply FSA time credits all the way back to Dec. 21, 2018; it has also pledged to give incarcerated people the benefit of the doubt when it comes to counting those early time credits.

“[F]or inmates participating in programming after the date of FSA’s enactment, but before the date that Bureau had completed all risk and needs assessments (December 18, 2018, to January 14, 2020), it is not feasible for the Bureau to connect individual inmates participating in programming to individualized risk and needs assessments, since the risks needs assessment tool did not exist until well after the date of the FSA’s enactment,” the BOP concedes.

However, the BOP will still apply time credits earned during that time period. “Instead, for inmate participation in programming during this period of time, the Bureau will exercise its discretion to award FSA Time Credits to inmates otherwise deemed eligible under the First Step Act by applying the same criteria as that applied to inmate participation in authorized EBRR programs or PAs recommended based on a risk and needs assessment after January 2020 to determine the inmate’s retroactive Time Credit balance.”

And, the BOP states, it’s going to give incarcerated people the benefit of the doubt. “Eligible inmates will be afforded a presumption of participation for the period between December 21, 2018 and January 14, 2020 and be awarded Time Credits accordingly.” This is great news, too.

In addition to starting on Dec. 21, 2018, the new rule also adopts a common-sense approach to how the BOP counts FSA time credits.

The new rule also addresses concerns over how the BOP counts a “day” for purposes of FSA time credits. Originally, the BOP wanted to treat a day as eight hours. On paper, that doesn’t sound awful. But when you consider what it means in reality, it rendered the time credits program largely meaningless.

This is because someone could participate in a program everyday for a month and still not earn a single time credit. Let me explain. Imagine you or your loved one took a class that the BOP offered everyday. That kind of class is rare in many BOP facilities, but let’s assume it existed. If that class was an hour long, you’d only be able to successfully complete one hour everyday. So, after a 30-day month, you would only get credit for completing 30 hours. With the eight-hour-a-day interpretation, that’s not even four days of programming.

And, under the BOP’s former interpretation, you couldn’t get credit for anything until you completed 30 days of programs. So, in this example, you’d have to participate for roughly eight months before you could earn any time credits. The BOP acknowledged how bad that was: “The proposed definition, however, would have meant that inmates could successfully do everything asked of them as part of their recommended programming for multiple days (e.g., two hours each day for four days), but be credited for only one day of successful participation.” That obviously wouldn’t work.

Now, the BOP is only going to count days and won’t get into the weeds of hours and minutes.

The new rule is so much simpler and so much better. “For every thirty-day period an eligible inmate has successfully participated in EBRR Programs or PAs recommended based on the inmate’s risk and needs assessment, that inmate will earn ten [or 15 in some cases] days of FSA Time Credits.” That’s it. As long as you’re participating on a day, you’re getting credit for that day. Once again, great news.

The BOP even described it that way. “The final rule adopts a more straightforward and more administratively manageable approach that is consistent with the FSA’s goal of promoting successful participating in EBRR Programs and PAs,” it explains. “For every thirty-day period that an eligible inmate successfully participates in EBRR Programs or PAs recommended based on the inmate’s risk and needs assessment, the inmate will earn ten days of FSA Time Credits.”

Importantly, this approach also allows people in BOP custody to earn time credits while participating in a program or activity, not just when they complete it. “Under this model, each eligible inmate earns Time Credits while participating in recommended EBRR Programs and PAs. Time Credits for successful participation are awarded at the end of each thirty-day period,” the BOP explains. “By altering the scheme for awarding Time Credits in this manner, the Bureau hopes to increase the amount of FSA Time Credits that may be awarded to the maximum number of eligible inmates.” Great news again.

Today’s announcement and the new rule look like great news on a paper. Whether that’s true in reality remains to be seen.

On paper, today’s news was a big win for incarcerated people, their loved ones and prison reform advocates. Whether that big win translates into real-world success remains to be seen.

Like we saw in the case I analyzed yesterday, courts are prepared to completely defer to the BOP’s calculation of FSA time credits, even when there is a dispute. An incarcerated person believes they’ve earned eight months in time credits. The BOP says no, just 30 days. In general, there are a lot of federal courts who are poised to say 30 days it is.

And, as I also explained earlier this week, even in the week leading up to the Jan. 15, 2022 deadline, courts weren’t in a hurry. Instead, they seemed content telling people who earned enough FSA time credits for release to just wait for the BOP.

But, for now, today’s news is good news. The BOP appears ready to finally start applying FSA time credits to those who have earned them. The BOP also appears ready to count them in a common-sense way that goes back to Dec. 21, 2018, and gives folks credit for program and activity participation regardless of how a given BOP facility actually provides it. This is unequivocally good news. And, if the First Step Act time credits program looks as good in reality as it does on paper, that’ll be even better.