Judges Struggling To Keep Up With First Step Act Rules

For months, almost every judge in the country said the same thing to people who asked for help with First Step Act time credits: wait. All but two of the judges who have considered the First Step Act’s time-credits program held that the First Step Act gave the BOP until Jan. 15, 2022 to implement the program and start applying time credits.

It’s fair to question whether this court-approved wait-until-the-last-minute approach by the BOP was what Congress intended or even a reasonable application of the law. But with Jan. 15, 2022 now in the rearview mirror, so too are arguments about it. Or at least they should have been.

Yet, even after the Jan. 15, 2022 deadline came and went, some judges still kept relying on it to dismiss petitions for First Step Act time credits. For instance, in a case called Fair v. Thompson, one judge dismissed a petition seeking First Step Act time credits based on the Jan. 15, 2022 deadline on Jan. 20, 2022 — five days after the deadline had already passed.

When you read that judge’s decision though, you’d have no idea that deadline had come and gone. “Respondent argues that the BOP is not required to calculate and apply time credits under the FSA for petitioner or any other prisoner until January 15, 2022 and thus petitioner lacks standing to pursue his time credits claim until that date….” he wrote. “This court agrees.”

In a case called Banks v. Bureau of Prisons, another judge did the same thing, writing that “the BOP is not obligated to award time credits to those who successfully complete the assigned programs and activities prior to January 15, 2022.” That decision came in May, five full months after the Jan. 15, 2022 deadline. Again, the judge didn’t mention a word about it.

Over the past six months, some judges have expected the BOP to do more than tell people to wait.

Thankfully, not every judge accepted the BOP’s position without any pushback like the judges in the Fair and Banks. In the past six months, in fact, two judges have squarely rejected the BOP’s approach to First Step Act time credits after the Jan. 15, 2022 deadline: one in Tennessee and another in Alabama.

In a case called Dyer v. Fulgam, a Tennessee judge refused to look the other way when the BOP told someone that he would lose 489 of the 540 days in First Step Time credits he earned simply because the BOP didn’t start counting right away. Specifically, the judge ruled that if the BOP didn’t apply the 489 additional days to his time in prison or on home confinement, the agency had to apply them to his time on supervised release.

“Here, the relevant statutory provision provides 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 … supervised release,’ ” the judge wrote. “Therefore, the unambiguous, mandatory language of the statute provides that earned-time credits may be applied to a term of supervised release.”

In a case called Stewart v Snider, an Alabama judge issued another common-sense decision on First Step Act time credits. Specifically, the judge declined to accept the BOP’s plan to wait until its automated system was ready to count and apply First Step Act time credits again. But, the judge said, “it is unclear when the automated system will be up and running,” and, “[w]hile it could be within the next 90 days, that is not guaranteed….” Rather than just wait, the judge ordered the BOP to count and apply Mr. Stewart’s time credits every 60 days.

These decisions come shortly after the DOJ’s new rule requiring the BOP to retroactively apply time credits.

The decisions in Dyer and Stewart didn’t happen in a vacuum. Instead, they come within months of the DOJ’s announcement of its new First Step Act rule back in January. On Jan. 13, 2022, just two days before the all-important Jan. 15, 2022 deadline, the DOJ published its final rule on the BOP’s implementation of the First Step Act’s time-credits program. That rule included several important updates.

First, according to the DOJ’s press release, the BOP had finally started “transferring eligible inmates out of BOP facilities” based on their First Step Act time credits. After waiting months for the BOP to start counting First Step Act time credits, this update was huge news.

Additionally, the DOJ announced that implementation of the time-credits program would “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.” This is probably the only logical approach to applying credits. Yet the fact that the DOJ chose it and put it in writing was a win, too.

But arguably the most important part of the new rule was the DOJ’s decision to apply time credits retroactively, going all the way back to the First Step Act’s enactment in December of 2018. “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.”

More simply, the DOJ ordered the BOP to go back to Dec. 21, 2018 and count. For courts, this made the framework for cases involving First Step Act time credits pretty easy. Or at least it should have been.

Even with these new decisions and the new time-credits rule, however, some judges still focus on Jan. 15, 2022.

Fast forward to the middle of 2022 — a full six months after the DOJ announced the new rule and weeks after decisions like Dyer and Stewart — and we still have some judges who won’t push back against the BOP and its delays. The most recent example of this comes from a June 29, 2022 decision by U.S. District Court Judge Nicholas G. Garaufis, a federal judge in New York, in a case called Lallave v. Martinez.

In that case, like in so many before the Jan. 15, 2022 deadline, Judge Garaufis started there. “Up until January 15, 2022,” he wrote, “the BOP had exclusive discretion to grant FSA credits.” By itself, this sentence seems unremarkable. After all, all but two judges to consider First Step Act time credits leading up to that deadline decided that the BOP didn’t have to apply time credits until that date.

But Judge Garaufis went further than that. Even after that deadline and the DOJ’s clear rule that people “may earn FSA Time Credits for programming and activities in which he or she participated from December 21, 2018,” Judge Garaufis concluded that he was powerless to compel the BOP to award any time credits earned before the Jan. 15, 2022 deadline.

“If the BOP is required to implement the FSA credit system—and the court can only enforce the system—as of January 15, 2022, less than a month before the Petition was filed, Petitioner could not possibly have earned enough ETCs to have been released almost a year early,” Judge Garaufis wrote. Despite recognizing that the Ms. Lallave participated in First Step Act programs and activities, he called the suggestion that she had earned enough time credits for a release in February “not possible.”

If judges only look back to Jan. 15, 2022 to calculate time credits, what’s the point of the DOJ’s new rule?

Maybe Judge Garaufis reached the correct outcome. After all, he explained, he “ha[d] virtually no information about what programs were assigned to Petitioner and to what extent she participated in these programs.” Maybe that information was not available because Ms. Lallave really hasn’t earned many First Step Act time credits. Or maybe even if she has participated, it still makes sense for a judge to dismiss her petition if she does not have enough documentation.

These outcomes, while perhaps frustrating, make sense. What doesn’t make sense, though, is why a judge is identifying Jan. 15, 2022, not Dec. 21, 2018, as the start date for applying First Step Act time credits. Had Judge Garaufis said that it was “not possible” for someone in BOP custody to earn a year of First Step Act time credits in the more-than-three-year period between the First Step Act’s enactment and Ms. Lallave’s petition, the decision would have made sense.

Judge Garaufis would have been wrong. But he would have at least used the correct date. But that’s not the date he used. Even though the new rule clearly states that people like Ms. Lalleve “may earn FSA Time Credits for programming and activities in which he or she participated from December 21, 2018,” Judge Garaufis’ decision only references time credits earned after Jan. 15, 2022. Why?

Judge Garaufis doesn’t really say. In fact, he doesn’t mention the DOJ’s new rule clarifying that Ms. Lalleve “may earn FSA Time Credits for programming and activities in which he or she participated from December 21, 2018.” It’s hard not to wonder why.