Don’t Let The BOP Off The Hook For The First Step Act Deadline

For more than a year, Interrogating Justice has warned about problems with the BOP’s implementation of the First Step Act time-credits system and the possibility of it missing the law’s most important deadline. In courtrooms across the U.S., incarcerated people have tried to address these implementation problems as well. But, for months, all but two federal courts have endorsed the BOP’s assurances: You have to wait until Jan. 15, 2022, but then you’ll get your time credits. With Jan. 15, 2022, just days away, the groundwork for why the BOP can’t meet that First Step Act deadline has already started working its way into the media.

The deadlines set for the BOP under the First Step Act time-credits system couldn’t be clearer.

When former President Donald Trump signed it into law in 2018, the First Step Act created a deadline for the BOP for each step of the law’s time-credits system. First, the BOP had 210 days after the date of enactment, i.e., Dec. 21, 2018, to create a risk and needs assessment. Bill Barr, the Attorney General at the time, took all 210 of those days. His office waited until July 19, 2019, to release the Prisoner Assessment Tool Targeting Estimated Risk and Needs (“PATTERN”).

The DOJ’s July 19, 2019 release of PATTERN, in turn, triggered another due date. The BOP then had 180 days after that date to implement and complete an initial risk and needs assessment for every person in BOP custody using PATTERN. Within that 180-day period, the BOP also had to begin to assign incarcerated people to evidence-based recidivism reduction programs based on that initial risk and needs assessment. The BOP also took all 180 of those days, waiting until Jan. 15, 2020, to complete those initial risk and needs assessments.

As a result, by Jan. 15, 2020, the BOP had PATTERN available to assess the risks and needs of everyone in its custody, had completed an initial assessment for everyone in its custody and had begun assigning incarcerated people to programs and activities to earn First Step Act time credits. But is that when you could actually start earning time credits? Good question. I’ll let the BOP’s “Frequently Asked Questions” page answer that. “When can inmates begin earning time credits?” the FAQ page asks. “FSA Time Credits (FTC) may only be earned for completion of assigned evidence-based recidivism reduction programs or productive activities authorized by BOP and successfully completed on or after January 15, 2020.”

The BOP’s alleged concerns about meeting those deadlines are problems of their own making.

So, for the past two years, thousands of people in BOP custody have been earning First Step Act time credits. For many, they earned enough that they deserve an immediate release to home confinement, a residential reentry center or elsewhere. But, for more than a year, the BOP has refused to release those individuals. Even in cases where the DOJ acknowledges that an incarcerated person has earned enough time credits for release, the DOJ has claimed that incarcerated people must still wait until Jan. 15, 2022, for the BOP to “provide” their earned time credits.

This Jan. 15, 2022 deadline is the final deadline for the BOP under the First Step Act. The First Step Act gave the BOP two years from the Jan. 15, 2022 deadline to phase in the First Step Act time-credits system. That’s literally what Congress labeled that provision: “Phase-In.” The definition of “phase in” is “to start to use or do (something) gradually over a period of time.” And that’s what the BOP should have been doing: starting to use the First Step Act time-credits system over the two-year phase-in period.

But that’s not what the BOP chose to do. Instead, the BOP chose to wait until the very last day permitted under the statute, Jan. 15, 2022, to provide earned time credits under the First Step Act. In doing so, the BOP has refused “to start to use [the time credits] gradually over a period of time.” Had federal courts interpreted and applied the First Step Act’s “phase-in” period according to its plain and ordinary meaning (which they are required to do), the BOP’s decision not to actually phase in the First Step Act’s time-credits system would have violated the statute. But that’s not what federal courts did.

Politicians and the media appear willing to let the BOP off the hook if it can’t meet Saturday’s deadline.

Rather than push back on the BOP’s wait-until-the-last-minute approach, all but two federal courts to address the issue have endorsed the BOP’s decision to wait until Jan. 15, 2022, to provide a single First Step Act time credit. According to the DOJ’s Office of Inspector General, this decision has impacted up to 60,000 incarcerated people. That’s how many people the OIG estimates could have earned time credits over the past two years. But, the OIG states, none of those individuals have been provided the time credits they’ve earned.

And now, just days before the next First Step Act deadline, the media seems willing to let the BOP off the hook. Last week, Forbes published an article describing the First Step Act’s time-credits system as a “lesser defined part of FSA….” According to author Walter Pavlo, the First Step Act isn’t clear on the issue of “whether or not those in custody within the Federal Bureau of Prisons (BOP), could earn time credits for participation in classes and meaningful activities in order to get time reduced off of their sentence.” But the First Step Act is extraordinarily clear: Those in BOP custody “shall” earn time credits, and those time credits “shall be applied.” There is no ambiguity at all.

In this sense, Pavlo recognizes the problem that’s less than a hundred hours away. “Indeed, there will be many prisoners on January 15, 2022 who are being detained unlawfully if the law comes into effect on that day and they are still incarcerated,” he writes. “[T]hat is going to happen.” He’s right about that, and Americans need to decide whether they’re willing to accept that the U.S. will have hundreds and maybe thousands of people “who are being unlawfully detained” come Saturday.

It’s easy to say “[t]his is going to be more complicated than anyone ever imagined.” But it’s not that complicated.

Pavlo’s conclusion in Forbes is short and sweet: “This is going to be more complicated than anyone ever imagined.” To support how complicated implementing the First Step Act’s time-credits system will be by Jan. 15, 2022, he calls it “a monumental task for BOP case managers.” He says “[i]t requires a tremendous amount of paperwork and coordination, often taking months.” All of these complications will take a long time to figure out, he contends, and it’s proving “to be more complicated than anyone ever imagined.”

But someone did imagine how complicated it could be: Congress. That’s why Congress gave the BOP a two-year “phase-in” period. The fault for the the BOP’s decision to wait until the very last day of that “phase-in” period, Jan. 15, 2022, to “phase in” the First Step Act’s time-credits system doesn’t fall on anyone but the BOP itself. Moving someone from a BOP facility to home confinement, a residential reentry center or elsewhere does “often tak[e] months.” That’s why Congress gave the BOP two years.

But, instead of the BOP decision-makers facing accountability, Pavlo’s predicted result is about to become a reality. On Jan. 15, 2022, it is likely that “there will be many prisoners on January 15, 2022 who are being detained unlawfully….” As he says, “that is going to happen.”