Legislating From The Bench: First Step Act Caselaw

If Congress wanted to make First Step Act time credits discretionary, it could have done that. If Congress wanted to make First Step Act time credits inapplicable to a term of supervised release, it could have also done that. And if Congress wanted Bureau of Prisons (BOP) determinations about First Step Act time credits immune from judicial review, it could have done that too. Yet the fact that Congress didn’t do any of those things hasn’t stopped judges all over the U.S. from saying that’s what Congress did anyway when it comes to First Step Act caselaw.

The First Step Act clearly mandates the application of First Step Act time credits to terms of supervised release.

The First Step Act is clear as to when the BOP must apply First Step Act time credits that someone in BOP custody earns. For instance, in 18 U.S.C. § 3632(A), the First Step Act states that “[a] prisoner, except for an ineligible prisoner under subparagraph (D), who successfully completes evidence-based recidivism reduction programming or productive activities, shall earn time credits….”

Subsection (i) of that statutory section, in turn, explains that “[a] prisoner shall earn 10 days of time credits for every 30 days of successful participation.” And subsection (ii) explains that “[a] prisoner determined by the Bureau of Prisons to be at a minimum or low risk for recidivating, who, over 2 consecutive assessments, has not increased their risk of recidivism, shall earn an additional 5 days of time credits for every 30 days of successful participation….”

In this context, the word “shall” is mandatory. As Justice Clarence Thomas recently wrote for the U.S. Supreme Court in a case called Kingdomware Techs., Inc. v. United States, “[u]nlike the word ‘may,’ which implies discretion, the word ‘shall’ usually connotes a requirement.”

But the First Step Act isn’t only clear in requiring that prisoners who successfully complete programs and activities “shall earn” First Step Act time credits. It also makes it clear what kind of custody those time credits “shall be applied to.” Specifically, 18 U.S.C. § 3632(C) 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.”

A Tennessee judge demonstrated how easy it is to apply these “shall” requirements in a case called Dyer v. Fulgam.

The First Step Act’s language is clear and mandatory when it comes to earning and applying credits. So, First Step Act caselaw interpreting and applying these provisions should be pretty straightforward. For example, in a case called Dyer v. Fulgam, U.S. District Court Judge Curtis L. Collier, a federal judge in Tennessee, read this language and determined that First Step Act time credits could apply to a term of supervised release.

The petitioner in that case, Douglas A. Dyer, had earned 54o days in First Step Act time credits. But the BOP waited as long as it possibly could to start applying First Step Act time credits. By that point, Dyer only had 51 days left on home confinement. So, according to the BOP, the remaining 489 days of First Step Act time credits disappeared forever. Specifically, the BOP argued that the First Step Act — the law that states that “[t]ime credits … shall be applied toward time in … supervised release” — does not authorize the application of First Step Act time credits to a term of supervised release.

Judge Collier didn’t buy that argument. Relying on 18 U.S.C. § 3632(C)’s clear language, Judge Collier recognized that “[t]he FSA explicitly provides for eligible inmates to earn time credit for activities that promote rehabilitative functioning, and [Dyer] is entitled to receive the benefit of his participation in those activities.” “Therefore,” he concluded, “the Court will apply the unused FSA time credits toward [Dyer’s] term of supervised release.”

Other judges, however, have either struggled to find or decided to rewrite the First Step Act’s clear “shall” language.

While Judge Collier’s decision in Dyer v. Fulgam was significant in that it was only the third or fourth time a federal court has declined to do what the BOP asked when it came to First Step Act caselaw, his actual reasoning wasn’t. He literally just quoted the First Step Act’s language and ordered the BOP to do what it said. That’s it. For other First Step Act caselaw, however, this clear statutory language, including its “shall” requirements, may as well not exist.

Last week, in a case called Zimmer v. Marske, U.S. District Court Judge James D. Peterson, a federal judge in Wisconsin, ruled that neither he nor the BOP could apply First Step Act time credits to a term of supervised release — the exact opposite outcome of the one reached by Judge Collier in Dyer v. Fulgam.

The Zimmer v. Marske case arose out of a request by a federal prisoner, Michael Zimmer, for 100 days of First Step Act time credits based on his participation in the BOP’s Residential Drug Abuse Program (RDAP). The BOP didn’t dispute Zimmer’s successful participation. Instead, the BOP took the position that because it already released him to supervised release, those 100 days in First Step Act time credits didn’t matter.

Zimmer responded, arguing “that, if he received 100 days of earned-time credits, his supervised release would end 100 days earlier.” That’s pretty much exactly what Judge Collier ruled in Dyer v. Fulgam. “But,” Judge Peterson said in Zimmer v. Marske, “I cannot use the earned time credit that the BOP allegedly unlawfully failed to give Zimmer before his release to reduce his term of supervised release retroactively.” Accordingly, Judge Peterson dismissed Zimmer’s petition.

The different outcomes in Dyer v. Fulgam and Zimmer v. Marske are the product of very different analyses by the two judges.

The disparity between Judge Collier’s decision in Dyer v. Fulgam and Judge Peterson’s decision in Zimmer v. Marske is obvious. In one case, a federal judge ruled that First Step Act time credits could apply to a term of supervised release. In the other, a federal judge ruled that First Step Act time credits could not apply to a term of supervised release.

Judge Collier’s decision in Dyer v. Fulgam relied on the language of the First Step Act, including 18 U.S.C. § 3632(C), which, again, 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.”

Judge Peterson’s decision in Zimmer v. Marske doesn’t mention this First Step Act statutory language at all. Instead, his assertion that he “cannot use the earned-time credit that the BOP allegedly unlawfully failed to give Zimmer before his release to reduce his term of supervised release retroactively” relied on three (non-binding) U.S. District Court decisions: a Florida case called Wilson v. Sawyer, a Virginia case called Wilson v. Andrews and a Louisiana case called Garland v. Johnson.

The first case Judge Peterson relied on, Wilson v. Sawyer, inexplicably conflated First Step Act time credits with good time credits.

The first case relied on by Judge Peterson was Wilson v. Sawyer, a 2020 case out of Florida. In that case, a federal prisoner, Freddie Wilson, filed a habeas petition “seeking good-time credits under the First Step Act….” Despite starting the decision that way, U.S. Magistrate Judge Martin A. Fitzpatrick later explains that Wilson actually sought time credits “based on his successful participation in certain recidivism reduction programming.” Recidivism reduction programming only applies to First Step Act time credits, not, as Judge Fitzpatrick says, “good-time credit.”

Perhaps it is this confusion that later leads Judge Fitzpatrick to say that, “[e]ven if [Wilson] was entitled to additional good time credit toward his sentence and did not receive it, federal law provides that those credits could not be used to shorten his period of supervised release” because of 28 C.F.R. § 2.35(b), a federal law that prohibits the application of “good time” credits “to shorten the period of supervision….”

Judge Fitzpatrick’s perplexing decision to conflate First Step Act time credits with good time credits continues throughout his decision. In fact, it goes all the way to his conclusion that “the Court cannot grant the relief Petition requested” “[b]ecause the [First Step] Act does not permit good time credits to be applied to a term of supervised release[.]”

But, as indicated above, the First Step Act does permit that First Step Act time credits, which are completely different from good time credits, to be applied to a term of supervised release. In fact, 18 U.S.C. § 3632(C), which 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,” expressly requires it.

The other “First Step Act” caselaw Judge Peterson relied on doesn’t even mention First Step Act time credits.

Judge Peterson’s reliance on the other “First Step Act” caselaw, Wilson v. Andrews and Garland v. Johnson, was even more flawed. In Wilson v. Andrews, for example, there is no mention of First Step Act time credits at all. Instead, that case involved a petition for a writ of habeas corpus by a federal prisoner, Thomas Wilson, “challenging the calculation of [a prisoner’s] good conduct time credits (‘GCT’) by the Bureau of Prisons (‘BOP’).”

“Although Wilson remains on supervised release,” the federal court in Virginia explained, “even if Wilson’s claim for additional GCT were meritorious and he actually served more time in custody than he should have due to BOP miscalculations, excess prison time cannot offset and reduce a term of supervised release.”

Presumably, that conclusion relied, at least in part, on 28 C.F.R. § 2.35(b). Again, that statute provides that “good time” cannot “shorten the period of supervision….” One’s “good time” credits, of course, are not the same as their First Step Act time credits. And Wilson v. Andrews didn’t involve First Step Act time credits, which is why the decision doesn’t mention them.

The situation in Garland v. Johnson was practically identical to the one in Wilson v. Andrews. “[E]ven if Garland had been entitled to additional good time credit toward his sentence that he did not receive,” a Louisiana federal judge wrote in Garland v. Johnson, “federal law provides that those credits could not be used … to shorten the period of his supervised release….”

The federal judge in Garland v. Johnson specifically relied on 28 C.F.R. § 2.35(b) to support his decision. But, like the judge in Wilson v. Andrews, does not even mention First Step Act time credits.

Maybe the decision to treat First Step Act time credits like good time credits is a good one. But should unelected judges be making those decisions?

It’s not unreasonable to think that the decision by Judge Peterson in Zimmer v. Marske might be a good one and that Judge Collier’s decision in Dyer v. Fulgam might be the problem. After all, if good time credits can’t shorten a term of supervised release, why should First Step Act time credits? The motivations to reward good behavior are similar to the motivations to reward rehabilitation and productivity, and the decision to reward each in a different way doesn’t necessarily make much sense.

In my opinion, good time credits and First Step Act time credits should apply to a term of supervised release. Others might think the opposite. They may believe that neither good time credits nor First Step Act time credits should apply to supervised release. Usually, politicians debate the pros and cons of these two views. Then, Americans like you and me vote for the candidate whose views on this issue (and countless others) match ours.

But no one elected Judge Collier or Judge Peterson. And, as lifelong appointees, they likely won’t ever have to answer for their views on this disparity in First Step Act caselaw. This is precisely why we ordinarily leave policy decisions like these to elected officials like those currently in Congress.

And when Congress passed and President Donald Trump signed into law the First Step Act in 2018, those elected officials expressly chose to require 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.”

Interpreting and applying that clear language in any other way is a picture-perfect example of legislating from the bench.