Court Says BOP Free From Oversight On Other FSA Incentives

If you’re reading this article, you probably already know that the Bureau of Prisons (BOP) completely botched the implementation of First Step Act (FSA) time credits. Federal law explicitly required that the BOP have the time-credits program fully implemented by, at the absolute latest, Jan. 15, 2022. That deadline came and went more than a year ago. Yet someone I know just received their first FSA time credits at the end of last week — more than fourteen months after the FSA mandated the BOP start applying them.

But the BOP is, for the most part, an oversight-less federal agency. A few weeks ago, I wrote this article about a gun incident at USP Tucson’s minimum-security satellite camp. One of the campers was able to access a handgun and, had he not mistakenly used the wrong ammunition, would have executed his wife in a room full of campers, women and children. No one held the BOP staff accountable for the nearly lethal lapse in security. Instead, they used their unsupervised authority to punish the campers and their families.

The only tangible oversight over the BOP, at least at this point, seems to come from federal courts. In some rare instances, federal courts have pushed back against the BOP’s approach, including its approach to FSA time credits. Until a few weeks ago, however, they hadn’t had a chance to see if federal courts would push back when it comes to the BOP’s approach to other FSA incentives. But earlier this year, in a case called Bonnie v. Warden, we finally got our answer. It’s the one we expected — and the one we were afraid of.

The FSA awards time credits to federal prisoners who participate in certain programs and activities. But it includes other incentives as well.

By this point, most people have a decent understanding of how FSA time credits work. Federal prisoners can earn 10, and sometimes 15, FSA time credits for every 30 days they participate in evidence-based recidivism reduction programming and productive activities. But FSA time credits are only available to individuals with a “minimum” or “low” PATTERN score. This means that “medium” and “high” security prisoners are ineligible. Certain prisoners are also ineligible for FSA time credits if they were convicted of one of a number of disqualifying offenses set forth in the FSA.

But that doesn’t mean that these individuals who are ineligible for FSA time credits aren’t eligible for other incentives. In fact, the FSA says the exact opposite. For example, the FSA specifically states that “[a] prisoner who is successfully participating in an evidence-based recidivism reduction program shall receive” “phone privileges, or, if available, video conferencing privileges, for up to 30 minutes per day, and up to 510 minutes per month,” as well as “additional time for visitation at the prison, as determined by the warden of the prison.”

The FSA also mandates that “[t]he Director of the Bureau of Prisons shall develop additional policies to provide appropriate incentives for successful participation and completion of evidence-based recidivism reduction programming.” In fact, the FSA says, those additional “incentives shall include not less than 2 of the following:” (1) “[i]ncreased commissary spending limits and product offerings,” (2) “[e]xtended opportunities to access the email system,” “(3) “[c]onsideration of transfer to preferred housing units (including transfer to different prison facilities)” and (4) “[o]ther incentives solicited from prisoners and determined appropriate by the Director.”

These other FSA incentives aren’t time off your sentence. But make no mistake about it — they matter for incarcerated people, their families and the public.

Obviously incentives like more phone privileges and consideration for transfers to preferred housing units or different facilities aren’t quite as lucrative as actual time off your sentence. But these incentives still matter. They matter to incarcerated people and their loved ones because they mean more time together, even if that time is only on the phone or in a visitation room. They matter to incarcerated people and their loved ones because a little extra commissary spending can often mean a healthier diet. And they matter because being in a facility closer to home means you are, literally, being closer to home.

But these incentives should matter to the people who read this but have no vested interest in the people in BOP custody or their loved ones too. We already know that, statistically speaking, making sure that incarcerated people and their loved ones stay in contact benefits everyone. In other words, as the Prison Policy Initiative puts it, “[t]he research is clear: visitation, mail, phone, and other forms of contact between incarcerated people and their families have positive impacts for everyone — including better health, reduced recidivism, and improvement in school.”

Additionally, these other FSA incentives, as their name (“incentives”) suggests, incentivize participation in evidence-based recidivism reduction programming. This kind of programming includes programs proven to reduce recidivism for those who participate in them. Reducing recidivism, in terms, means reducing crime. According to a Gallup Poll from early 2022, Americans are more worried about crime now than they’ve been in quite a few years. Incentivizing participation in recidivism reduction programming directly addresses those fears.

According to a recent federal court decision, however, the BOP need only provide these other FSA incentives on paper, not in real life.

Unfortunately, like with FSA time credits, prisoners are already complaining that the BOP isn’t providing these other incentives that they’re statutorily required to provide. According to a federal court lawsuit filed by Gregory Allen Bonnie, a federal prisoner at FCI Williamsburg in South Carolina, the BOP hasn’t provided any of the other incentives the FSA requires for his participation in programs and activities. Conceding that he wasn’t eligible for FSA time credits, Mr. Bonnie asked a federal court to order the BOP to provide those other incentives.

But U.S. Magistrate Judge Thomas E. Rogers, III, a federal judge in South Carolina, said no. Even though the judge acknowledged that federal prisoners are entitled to those other FSA incentives, he concluded that he “lack[ed] habeas corpus subject matter jurisdiction to consider [Mr. Bonnie’s] claims.” Because granting Mr. Bonnie the relief he sought “would not afford [Mr. Bonnie] any speedier release or change the fact or duration of his confinement,” Judge Rogers concluded, he simply could not order the BOP to provide those incentives.

This is, legally, the correct outcome. The problem, however, is that there is no other way to get the BOP to do what the FSA requires and provide those other incentives. But don’t take my word for it. Judge Rogers literally tells Mr. Bonnie not to try anything else. “To the extent Petitioner now is considering filing a Bivens action, there has been no recognized Bivens claim in this context and the BOP’s administrative grievance process has been found to be an alternative remedial structure which would counsel against any recognition of a Bivens claim in this context,” he wrote in a footnote. “Any future action under Bivens as to this exact issue would be subject to summary dismissal as well.”

If judges are willing to literally “counsel” federal prisoners against suing the BOP, it’s no wonder people think the BOP’s power is limitless.

Judge Rogers’ decision to “counsel” Mr. Bonnie against filing a Bivens claim was, frankly, peculiar. As Justice Brett Kavanaugh recently recognized on behalf of the U.S. Supreme Court in a case called TransUnion LLC v. Ramirez, “federal courts do not issue advisory opinions.” Yet, in this case, Judge Rogers literally “counsel[ed]” Mr. Bonnie as to what he should (or should not) do in an entirely hypothetical case. That’s problematic for a lot of reasons, including the fact that a judge would never “counsel” a government defendant in the same way.

Last week, for example, I wrote this article about a case in which a judge rejected two obviously meritless arguments from the BOP about FSA time credits. First, U.S. Magistrate Judge Andrea K. Johnstone rejected the BOP’s argument that a statute disqualifying prisoners subject to “a final order of removal” from earning FSA time credits applied to prisoners with ICE detainers who were not subject to “a final order of removal.” Second, Judge Johnstone rejected the BOP’s argument that the statute disqualifying prisoners from earning FSA time credits before “the date that the prisoner’s sentence commences” applied to prisoners whose sentences had commenced but had not yet been moved to their “designated BOP facility.”

Imagine if Judge Johnstone had provided the same “counsel” to the BOP in that case as Judge Rogers gave Mr. Bonnie in Bonnie v. Warden: To the extent the BOP now is considering making similar arguments in other cases, there have been no courts who have adopted the BOP’s interpretation of the statutory provisions at issue which would counsel against any similar arguments in this context. Any future arguments of this nature would be rejected as well.

It’s hard to imagine a judge writing something like that, isn’t it? It is. That’s why it’s a problem.