Court Reluctance to Touch First Step Act Cases Continues After Deadline

For more than a year and a half, almost all of the federal courts in the U.S. have been reluctant to get involved in First Step Act cases. Giving the Bureau of Prisons every benefit of the doubt imaginable, these courts have told incarcerated people who have earned First Step Act time credits over the past three years to simply wait until Jan. 15, 2022, for them to be applied — even if it means spending longer in prison or on home confinement than necessary.

But these federal courts, the DOJ and the BOP have continually told litigants that Jan. 15, 2022, would be the magic deadline. Once that deadline comes, these government officials have assured us, your First Step Act time credits will count. It’s fair to question that wait-until-the-last-minute approach. But that deadline is now in the rear-view mirror. So, incarcerated people and their loved ones should see First Step Act time credits applied left and right.

In some cases, that has actually happened. People in prison have moved to home confinement, and people on home confinement have lost their ankle monitors. For these individuals, Jan. 15, 2022, lived up to its lofty expectations. But, for others, Jan. 15, 2022, came and went, and nothing changed. And that appears to be the same approach that federal courts plan to take with the Jan. 15, 2022, deadline for First Step Act time credits, too.

One court ruled that the BOP need not “calculate and apply time credits under the FSA … until January 15, 2022,” even though that deadline already passed.

Last week, a federal court in California dismissed another petition for First Step Act time credits based on the Jan. 15, 2022 deadline in a case called Fair v. Thompson. “[T]he Act provides that, from the date of its enactment (December 21, 2018) until the end of the phase-in (January 15, 2022), the BOP ‘may’ offer incentives and rewards described in the Act — which include the potential for earning time credits — to prisoners who successfully participate in EBRR programs and productive activities,” Eastern District of California Magistrate Judge Edmund F. Brennan wrote. “Because the statute specifically grants this discretion to the BOP, courts have held that district courts lack the authority to order the BOP to release a prisoner to home confinement.”

According to Judge Brennan, prisoners must wait until after Jan. 15, 2022: “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…. This court agrees.” (Citations omitted.) “If Congress had intended to require the BOP to apply the time credits incentive during the phase-in period,” he reasoned, “it could easily have done so by replacing the permissive word ‘may’ with the compulsory ‘shall.’ It did not do so.”

The California judge’s decision isn’t remarkable for its substance. But it is notable that federal judges are still telling litigants to wait until a date that has already passed.

In terms of substance, Judge Brennan’s decision is unremarkable. It’s likely that more than a hundred federal judges have endorsed the Jan. 15, 2022 deadline and avoided the merits of First Step Act cases already. What’s significant, however, is the date of that decision. Judge Brennan issued it on Jan. 20, 2022. That’s a full five days after the Jan. 15, 2022 deadline. Yet nowhere in his decision does he acknowledge that the deadline has already passed. Instead, like the judges before him, he merely tells the prisoner to wait until a deadline that’s now almost two weeks old.

Judge Brennan’s decision in Fair v. Thompson comes as other courts are expressing a reluctance to review, much less recalculate, the BOP’s calculation of First Step Act time credits in other cases. If this trend continues, the result would essentially leave the BOP’s calculation of First Step Act credits immune from judicial review. This is precisely the kind of issue that advocates warned about when the DOJ announced the new BOP rule earlier this month.