New Decision On FSA Time Credits After New Rule Sides With BOP

On Jan. 13, the Department of Justice announced a new rule implementing the First Step Act’s Time Credits Program. As I wrote at the time, the new rule exceeded expectations in numerous ways. The new rule ensured that those in BOP custody could earn time credits in a practical and efficient manner. That’s precisely what Congress intended.

But how would that new rule impact the way that courts addressed (or, perhaps more accurately, failed to address) the BOP’s haphazard application of FSA Time Credits? A new federal court decision from South Dakota might answer that question. That decision shows that courts remain reluctant to meaningfully review, much less change, the BOP’s calculations of FSA Time Credits.

The First Step Act has an incentive program. It allows people to earn time off their sentence in exchange for rehabilitation and productivity.

The First Step Act’s Time Credits Program rewards incarcerated people for their participation in “evidence-based recidivism reduction programming” (sometimes called “EBRR programs”) and “productive activities” in BOP facilities. It does so through incentives. For every 30 days of participation in EBRR programs and productive activities, you earn 10 (and sometimes 15) “Time Credits.”

The First Step Act defines EBRR programs and productive activities in broad ways. The definitions include everything from participation in prison work to the Residential Drug Abuse Program to classes covering countless areas. Put simply, Congress wanted to make the incentives lucrative enough that people would want to participate.

For the most part, it worked. As soon as the First Step Act became law, people became eager to participate in EBRR programs and productive activities. Unsurprisingly, they were also eager to earn the Time Credits that came with that participation. It’s not an exaggeration to say that tens of thousands of people in BOP custody have participated in hundreds or thousands of days of EBRR programs and productive activities since the FSA’s enactment in Dec. 2018.

As hard as those in BOP custody worked to successfully complete EBRR programs and productive activities, they were forced to work even harder to get the FSA Time Credits they earned actually applied. Originally, the BOP waited until Jan. 15, 2022, to apply FSA Time Credits, a decision one court aptly called purposeless.

The First Step Act states that those who successfully complete EBRR programs and productive activities shall earn FSA Time Credits.

Regardless of how long it took for the BOP to apply FSA Time Credits, though, one thing remained clear: Under the FSA, Time Credits “shall” be applied when incarcerated people earn them. The FSA makes this clear two separate times.

First, in 18 U.S.C. § 3632(d)(4)(A), the FSA states that “[a] prisoner … who successfully completes evidence-based recidivism reduction programming or productive activities, shall earn time credits….”

Second, in 18 U.S.C. § 3632(d)(4)(C),the FSA states that “[t]ime credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in prerelease custody or supervised release” and that “[t]he Director of the Bureau of Prisons shall transfer eligible prisoners … into prerelease custody….”

As one federal judge explained in a 2021 case called O’Bryan v. Cox, “[m]andatory words such as ‘shall’ impose a duty and permissive words such as ‘may’ grant discretion….” Because Congress was clear in using the mandatory word “shall” in these instances, that court concluded, “no deference is to be accorded to the BOP position that it need do nothing with accrued time credits under the FSA until January 15, 2022.”

This is the only interpretation permitted by the “shall”-heavy statute. Yet, even with the statute’s clear requirement that the BOP “shall” apply FSA Time Credits, federal courts have spent the last few months deferring to the BOP’s calculations of those Time Credits anyway. They’ve done so even when the agency’s calculation differed substantially from the incarcerated person’s.

After the DOJ exceeded expectations with the new rule, however, there was hope that this deferential approach would cease. A new decision from a federal court in South Dakota makes it clear that courts’ deference to the BOP’s calculation of FSA Time Credits is here to stay.

Last Friday, a federal court held that the BOP’s calculation of FSA Time Credits is “not subject to judicial review.”

In a case called Roberts v. Cox, United States District Court Judge Karen E. Schreier of the District of South Dakota’s Southern Division issued a short but clear decision. She held that “the BOP’s calculation of … time credits is a challenge to the BOP’s adjudicative decisions” under the FSA. Therefore, she concluded, it is “not subject to judicial review.”

“The First Step Act grants discretion to the BOP to determine placement of inmates who have earned enough time credits to receive a sentence reduction,” Judge Schreier wrote. But, she continued, because the FSA allows the BOP to place them in either “prerelease custody or supervised release,” the decision is a discretionary one immune from judicial review.

This was especially true in Roberts v. Cox, the South Dakota judge said, because the incarcerated person sought Time Credits for his participation in the Residential Drug Abuse Program (usually referred to as “RDAP”). “The one-year sentence reduction for successful completion of RDAP is also at the discretion of the BOP,” Judge Schreier explained.

Ultimately, the judge ruled, it’s all up to the BOP. “Determining the placement of inmates is within the BOP’s discretion, including inmates who have received reduced sentences under the earned time credit provisions of the First Step Act and inmates who are participating in or have completed RDAP.”

If federal courts can’t issue a decision on the BOP’s calculation of FSA Time Credits, where does accountability come from?

If you’ve been following Interrogating Justice’s analysis of FSA Time Credits, federal courts’ reluctance to review the BOP’s calculation of FSA Time Credits shouldn’t come as a surprise. But this is the first time since the DOJ announced the new rule that a federal court has specifically addressed an argument that the BOP’s calculation was simply wrong. And it is likely that this decision will pave the way for federal courts to avoid disputes over FSA Time Credits moving forward.

The result? The BOP’s calculation of your FSA Time Credits will be final. Always. You think you’ve earned six months of FSA Time Credits, but the BOP says you only have a few days? You can work your way through the BOP’s administrative grievance process, of course. But nothing is likely to change. And, if every federal court does what Judge Schreier did, the success (or failure) of the FSA Time Credits Program will remain in the hands of unnamed BOP employees across the country.

Is that “the truly extraordinary bipartisan … achievement of the FIRST STEP Act” that former President Donald Trump promised? Is the FSA really “landmark legislation [that] give[s] countless current and former prisoners a second chance at life and a new opportunity to contribute to their communities, their states, and their nations” like he said it would be?