Explainer: The BOP Slow-Walks First Step Act Implementation

The First Step Act was arguably the most significant criminal justice reform legislation in a half century, maybe even more. It addressed crack-versus-powder cocaine disparities. It renewed legislation to give people a second chance. And, perhaps most importantly, it created a system in which incarcerated people could earn time off of their sentences. They are able to do this in exchange for addressing their rehabilitative needs and risks. This was a win-win move: people could leave prison sooner and be more rehabilitated when they do. But the implementation of the First Step Act has moved at a snail’s pace so far. This is especially true for the implementation of the First Step Act’s earned time credit system. And the reason why is as disappointing as it is simple: because the Bureau of Prisons wants it that way.

The First Step Act ushered in many meaningful reform measures, including a measure allowing federal prisoners to earn early release through time credits.

Former President Donald Trump signed the First Step Act into law on Dec. 21, 2018. The First Step Act, specifically 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. Attorney General Barr met that deadline when he released PATTERN on July 19, 2019.

The release of PATTERN triggered another due date. The BOP then 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. The BOP met that deadline, too. As of that date — Jan. 15, 2020 — the BOP had completed a risk and needs assessment for every prisoner in its custody.

The significance of the Jan. 15, 2020 achievement is hard to overstate. 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. And, as a result of a prisoner’s 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.”

The BOP publicly identified Jan. 15, 2020, as the date federal prisoners could start earning First Step Act time credits, but, in court, it takes a very different view.

Incarcerated people, prisoners’ friends and family and justice-reform advocates undoubtedly celebrated the Jan. 15, 2020 green light the moment the BOP turned it on. It almost felt too good to be true. And it was.

Almost immediately, prisoners started asking for earned time credit for the programs and activities they were participating in during their incarceration. For some, they wanted credit for their classes and prison work they were already doing. For others, they wanted credit for BOP-approved programs and activities they were assigned under the First Step Act. Put more simply, they wanted to see the First Step Act work. The BOP expressed a different view.

Despite openly claiming that prisoners could earn time credits, and an early release, based on successful competition of programs and activities “on or after January 15, 2020,” the BOP went a very different direction in court. According to the government, the BOP actually didn’t have to award a single earned time credit as of Jan. 15, 2020. Instead, it did not have to do so under the First Step Act until Jan. 15, 2022 — two full years after the date it proudly represented on its website.

The BOP is currently capitalizing on a statutory ambiguity, taking literally as long as possible to put Congress’s intent into meaningful action.

To the BOP’s credit, the First Step Act statutory language is somewhat vague when it comes to implementation. On the one hand, the only clear time limitation on earning earned time credits under the First Step Act is set forth in 18 U.S.C. § 3632(d)(4)(B)(1), which states that “[a] prisoner may not earn time credits … for an evidence-based recidivism reduction program that the prisoner successfully completed” “prior to the date of enactment of this subchapter,” i.e., Dec. 21, 2018.

On the other hand, subsection (h)(2)(A) of 18 U.S.C. § 3621 does allow the BOP “2 years” for a “[p]hase-in” period. Specifically, the Act requires that the BOP “provide such evidence-based recidivism reduction programs and productive activities for all prisons before the date that is 2 years after the date on which the Bureau of Prisons completes a risks and needs assessment for reach prisoner….” So, as the BOP argues, it has two years after the Jan. 15, 2020 date to begin providing programs, i.e., on Jan. 15, 2022.

The BOP has taken the position that it doesn’t actually have to phase in programs and activities during the “phase-in” period.

Of course, the entire concept of a “[p]hase-in” period assumes that the BOP will, in fact, phase the earned time credits in. Nothing in the statute contemplates the BOP’s version of phasing in, which essentially means wait until the very last minute. In fact, the very next subsection in the statute explains that, “[d]uring the 2-year period,” i.e., the two-year period in which the BOP is supposed to be phasing in the earned time credits, “the priority for such programs and activities shall be accorded based on a prisoner’s proximity to release date.”

Why would Congress have included a priority provision during the two-year phase-in period if the BOP wasn’t going to offer earned time credits anyway? The answer is obvious. Congress intended that the BOP would actually phase in the programs and activities. It did not intend that the BOP would slow-walk the entire process until the very last minute.

The BOP has deliberately chose to take all the time it possibly could to delay the meaningful reform measures in the First Step Act.

The government goes to great lengths in its briefs to emphasize that extra two years in court. It claims that “the First Step Act does not obligate the BOP to” provide any prisoners any earned time credits until that two-year waiting period is over. According to one of the briefs filed by the government that is available on PACER, the “BOP has not yet determined what programs and activities … will qualify” under the First Step Act at some of its facilities. According to another brief on PACER, the BOP is even intentionally delaying implementation. “BOP’s decision to wait to implement ETCs is based, in part, on the need for the regulations it has promulgated[,]” it claimed in one case.

According to the government’s briefs in these cases, it is the prisoners who are trying to “bypass” Congress’s intent. The government claims they are improperly seeking time credits for their participation now. And the government makes this claim even though they are participating in programs and activities as we speak. Instead, the government contends, prisoners should just “await the completion of” the two-year period the BOP is capitalizing on. In fact, the government is taking this position even in cases where the prisoner seeking First Step Act earned time credits will be released before that two-year deadline is up.

If the DOJ and BOP continue to get their way in court, the First Step Act’s earned time credit provisions won’t mean much until more than three years after the Act became law.

The DOJ and BOP have been clear and consistent in cases involving earned time credit disputes under the First Step Act. In their view, prisoners aren’t entitled to a single one until Jan. 15, 2022. A federal lawsuit filed by Michael Cohen, former President Trump’s former lawyer, is perhaps the most high-profile example of this.

In that case, the government successfully obtained dismissal of a petition filed by Cohen. Cohen sought an order compelling the BOP to give him credit for his participation in various programs and activities. “Cohen’s Petition is not ripe for review because he has suffered no imminent injury,” the government claimed. A New York federal court agreed. And courts across the country are doing the same thing in numerous cases that aren’t as media-friendly as well.

But, even if this unnecessary two-year delay isn’t concerning in and of itself, the BOP isn’t done. In some of its most recent briefs, the government has taken an even more drastic position. It argues that courts couldn’t do anything if the bureau denied earned time credits to prisoners who earned them anyway.

In fact, in a case called Llewlyn v. Johns out of Georgia, attorneys for the government came right out and said it. “Even if time credits were available, a decision by BOP to deny time credits would not be reviewable because the Administrative Procedure Act (APA) divests the Court of jurisdiction.”