[Part 3 of 3] Multiple FCI Englewood Inmates Join National Flurry of Suits Claiming the Biden Administration’s BOP is not Following the Law When it Comes to Awarding First Step Act credits
Littleton, Colorado (D.A.S.) – At the beginning of 2022, it looked like the federal Bureau of Prisons might actually have decided to fully implement the full reforms adopted by the widely applauded bipartisan First Step Act, specifically its new earned-time credit program that allowed active, non-violent, low-risk inmates to earn put o 15 days each month towards early release or community custody (e.g. home confinement). However, eleven months in, a growing chorus of leaders, activists, and American families are raising increasing cry’s that something is still deeply wrong inside the BOP. The same is happening in Colorado, at FCI Englewood, where several inmates have recently filed suit claiming that J.F. Williams (the local warden) and the BOP generally, are requiring them to serve more time in federal prison than Congress has provided. In each case the inmates allege their FSA credits are not being fully awarded and even the FSA credits that have been awarded are not being fully applied.
The problem, according to the FCI Englwood inmate filings made over the last 45-days, is that Congress has given the inmates the mandatory right to earn and apply credits towards earlier release and more time in less-restrictive, more productive environments like home confinement. This is a similar argument successfully raised by inmate Joseph Brodie in the Southern District of New York.
Nevertheless, the BOP continues to disregard and even contradict key portions of the First Step Act law. On November 16, 2022, several prominent United States Senators also added to the cacophony of criticism directed at the BOP over its handling of FSA time-credits.
“We write regarding continued failures by the Federal Bureau of Prisons (BOP) to adequately implement the Earned Time Credit (ETC) provisions of the bipartisan First Step Act of 2018 (FSA),” wrote Durbin and Grassley. “The FSA enacted critical reforms to promote public safety and make our criminal justice system fairer. A fair system for awarding time credits to those who participate in recidivism-reduction programming is necessary to meet the FSA’s goal of reducing recidivism and making our communities safer. Unfortunately, almost four years after the FSA was signed into law, implementation of its ETC provisions continues to fall short… Although BOP has struggled to develop and implement consistent and fair policies to this effect, enough time has passed that further delay cannot be excused.”
November 16, 2022 Letter from Senators Durbin and Grassley
BOP Wardens and Staff Not Following the Law
The public has been informed repeatedly over the last several years of rogue BOP actions, including a culture of government employees who believe they are not required to follow the law. For example, on November 15, 2021 the Associated Press reported that its own investigation revealed: “the federal Bureau of Prisons, with an annual budget of nearly $8 billion, is a hotbed of abuse, graft and corruption, and has turned a blind eye to employees accused of misconduct.” Since that report, BOP wardens and staff have been criminal charged across the country, and misconduct continues.
As far as the First Step Act, and BOP officials refusing to follow the law, FCI Englewood inmates appear to have more than political support; the law appears to be firmly on their side as well. As mentioned above, in a recent New York case, federal inmate Joseph Brodie filed a § 2241 habeas petition challenging the BOP’s refusal to continue awarding and applying time-credits he had earned in the final 18 months of his incarceration.
The judge in Brodie’s case granted the habeas petition on November 7, 2022 explaining in relevant part: “[The BOP] has offered no legal basis for its decision to refuse to calculate FSA Time Credits for Petitioner’s qualifying participation in programming.” Brodie v. Pliler, 1:22:-cv-03821 (S.D. NY, Nov. 7, 2022) at 6.
Brodie’s judge flatly rejected the BOP’s explanation that granting Brodie his credits would be difficult and time consuming, and also rejected the BOP’s unsupported policy which it claims is “eminently reasonable.” The judge ruled: “the Court has not located, any part of the [BOP’s Final] Rule that imposes or authorizes this 18-month cutoff, nor any statute authority under which such a rule could be promulgated.” Id. In response to the BOP’s complaint that it should be allowed to impose a rule limiting FSA credits the Court explained: “the FSA does not grant the BOP discretion to stop awarding FSA Time Credits at a certain point. The FSA provides that an incarcerated person ‘shall earn’ either ten or fifteen days…[and these credits] ‘shall be applied to toward time in prerelease custody or supervised release’ and the BOP ‘shall transfer eligible prisoners[.]’” Id.
LAWSUITS AT FCI ENGLEWOOD
Inmate Donald Foote was awarded FSA time-credits up until January 2022. He has continued programming but the BOP has stopped awarding him credits. Foote was recently transferred to a halfway house in Wyoming, with the BOP telling him that he would not have credits applied after January 2022 and his unused credits would not be applied since he already had an RRC transfer date. If Mr. Foote’s First Step Act time-credits were applied he would have been released from custody on November 7, 2022. Instead, the BOP is planning to hold him through April 2023. His case is open, no decision has yet been made. The case is: Foote v. Williams, Case No. 1:22-cv-002416-GPG (D. Colo).
Inmate Jason W. Schwarz was sentenced to a year and a day for a first time, non-violent financial offense. Immediately upon arriving at FCI Englewood he began successfully programming under the FSA time-credit criteria. However, since his release date is within the 18-month window where the BOP is currently saying it is too difficult to calculate and apply FSA credits, Schwarz has not been awarded any credits. Local staff told Schwarz directly, it would be a waste of time to file a grievance, nothing would be done for him. The local Case Manager told him, the FSA is not made for short-timers (meaning inmates with short sentences). Of course, the law says the opposite. As the judge explained in Brodie’s case (discussed above), there is no discretion granted by Congress for the BOP to simply stop awarding or applying FSA credits. The case is: Schwarz v. Williams, Case No. 1:22-cv-002824-GPG (D. Colo).
Inmate Ephraim Garcia is serving a 24 month sentence, for a first-time, non-violent process crime. Mr. Garcia has earned FSA credits, but because he is already scheduled for transfer to a halfway house in December of this year, the BOP has said it will not apply these credits. If these FSA credits were fully applied as the law required (which includes adding his FSA award to his existing Second Chance Act halfway house placement) he should have been transferred to home confinement or the halfway house – months ago. The case is: Garcia v. Williams, Case No. 1:22-cv-0002848 (D. Colo).
Inmate Mark Godding was sentenced to serve a 6 month sentence. Similar to the situation described by the other FCI Englewood petitioners, Mr. Godding was denied FSA credits and is being required – according to the Case Manager at the Englewood camp – to serve every day without exception. He was told, “these programs are not for you.” Mr. Godding mailed his § 2241 petition from FCI Englewood over a month ago, but it still has not been docketed by the Court. This raises another problem at FCI Englewood that we’ll address in a future update. It appears that the FCI Englewood mailroom is delaying delivery of legal documents. In Foote, Garcia, and Schwarz’s case, the court has already filed copies of mailed envelopes showing that mailing is taking more than a month to get from the Littleton, Colorado facility to the Denver, Colorado courtroom. Mr. Godding’s declaration is cited in the other lawsuits described above, where he was required to let staff tear up his BP-8 filing or have his transfer to the RRC (which is closer to his family) cancelled.
Inmate Dale Lounsberry was an FCI Englewood inmate who filed a § 2241 petition back in August of 2022. Dale was another “short timer” who was denied any consideration for CARES Act or FSA time-credit participation. Within weeks of his filing the § 2241 petition, the local staff reversed course and offered Dale his full FSA time-credit award. Dale explained that when he was called into see staff about his new release date, he was told he was being given full FSA credit. But, there was a catch. According to Dale, he was required to let staff tear up his $5 check (that he had requested via BP-199) for paying the § 2241 filing fee. The case was: Lounsburry v. Williams, et al, 1:22-cv-01911 (D. Colo.).
If you know of someone in the BOP who needs help with CARES Act or First Step Act issues; whether they are in the Administrative Remedy process stage, are looking to file with the court in a pro se petition, etc., you can tell them about this update. We are willing to discuss whether there is anything we can do to help.
Contact D.A.S. for help.
Phone: 800-489-8146
Email: info@defendantaidsociety.org
