Ambiguity in New BOP Policy Means Inmates May Continue Serving More Time in Prison than Congress has Mandated
2018; 115th Congress
Washington, D.C. (DAS) – Two days after the Senate Judiciary Committee excoriated the federal Bureau of Prisons (BOP) in a letter to the United States Attorney General, for the agency’s pattern of delay and repeated failures implementing the First Step Act time-credit program; BOP appears to have changed course.
The time-credit program is part of the transformational, bi-partisan First Step Act (FSA) that was signed into law back in December 2018. It provides federal inmates with incentives to earn time-credits that can be applied towards early release and extra time in prerelease custody (halfway house and home confinement).
Scholars and government officials agree that the FSA is the most significant criminal justice reform legislation in a generation; and evidence is already mounting that when implemented, its provisions have produced better recidivism reduction results than ever previously accomplished in the federal agency’s history. Yet, despite the good news and the repeated false assurances by BOP leaders over the last 10 months, BOP hasn’t yet figured out how to fully implement the time-credit program.
Last week the BOP issued two new public documents explaining the current status of the time-credit program. The announcements are a welcome sign of progress even if late. Unfortunately, serious deficiencies in the Bureau’s new policy and continuing reluctance by BOP administrators and staff to fully comply with the law are still an issue. As a result, federal inmates are likely to remain incarcerated longer than Congress has provided until more progress is made.
THE PRESS RELEASE
In a November 18, 2022 press release, the BOP announced “three major changes” to its prior approach.
“First, inmates will soon be able to see all potential Federal Time Credits (FTC) they may earn over the course of their sentence at their first Unit Team meeting.”
It is unclear exactly why the BOP made this first change or announcement. At first glance, it appears that by calculating (and informing the inmate) the total amount of possible FSA time-credits, the BOP is planning to use this projected calculation in other important inmate decisions. As discussed below, this new policy creates more possible confusion than it solves. The law itself makes an inmate’s use or implementation of the time-credits contingent upon having earned a sufficient quantity of time-credits to equal or exceed the remaining amount of time on his or her sentence; so its unclear how projecting an inmates total potential time-credits beyond the 365 days that can be used to reduce a sentence, is going to be used by BOP.
“Second, inmates will be able to earn credit while in administrative detention if they continue participating in available programming opportunities provided to them.”
This is a welcome development since inmates have no choice when they are being held in administrative detention. There is bound to be confusion of terms however, given that both the law and official policy make it clear that inmates held in disciplinary segregation (different than administrative detention) are not eligible to earn credits.
“Finally, inmates will be able to continue earning credit while in the community, so long as they continue to successfully comply with all the rules and procedures of pre-release custody.”
It is unclear why this is a “change” in the BOP’s policy. The text of the law itself establishes no limit to what stage of incarceration an inmate must be in to earn time-credits. The official policy implemented in January 2022 was accompanied by an official explanation that the BOP was interpreting the law to mean that inmates could earn credits while in community custody (this means at a half-way house (called RRCs) or on home confinement).
REFUSE STATUS & SURVEYS
Besides these three “new” changes, the BOP also announced that it was changing course on an issue negatively affecting thousands of federal inmates. According to the release, the BOP acknowledged that its new credit calculation software resulted in a situation where some inmates were denied credits through no fault of their own for incomplete surveys or needs assessments (a complaint made public by the Senate Judiciary Committee just two days earlier). The BOP stated: “With the automation, some inmates noticed their time credit balance decreased due to incomplete needs assessments and/or declined programs.”
This is an understatement. What really happened is that the BOP had told Congress and the public that it was compliant with the new provisions of FSA law and had finished assessing all its inmate population using the new SPARC-13 needs assessment protocol. It had not.
Further, FSA time-credit training at the BOP has been sporadic at best, and staff across the country still report knowing and understanding little about this new assessment regime. Nevertheless, until this new announcement, the BOP had been holding inmates responsible for missing assessments, as if inmates could compel BOP staff members to complete the assessments or see that they had been scored and entered into the BOP’s computer system properly, even before the inmates themselves were informed of the situation.
Even more glaringly problematic, some of the new BOP assessments were just completed and made available for proper updating in the FSA time-credit system as of March 2022. For example, a group of self-assessment psychology surveys were launched on the BOP’s inmate computer system on March 1, 2022. In most facilities this meant that most inmates could take surveys to complete the assessments. However, there was no uniform way to communicate to inmates the need for these surveys or the consequences of not taking them. The law itself mentions nothing about this. Worse, thousands of inmates who did take the surveys after March 1, 2022, were still denied years of programming credit for time between December 2018 and March 2022 (when not a word was spoken about these assessments) and when the computer system did not properly update or record the completed surveys. This was just the tip of the iceberg.
Thankfully, the BOP has now stated: “This [new] policy includes a grace period, available until December 31, 2022, for inmates who have not completed all needs assessments or who have declined programs to try to address these issues.” This should allow thousands of inmates to fully receive the credits Congress envisioned.
THE 18-MONTH RULE
Earlier last week, in the letter from Senators Richard Durbin (D-IL), Chairman of the Senate Judiciary Committee, and Senator Charles Grassley (R-IA), ranking Republican on the Committee, the judiciary committee outlined a series of outstanding, unresolved problems with the BOP’s arbitrary rule (just announced weeks earlier) that it would stop applying time-credits for early release once inmates reached the point of having less than 18 months left to serve. This meant, among other things, that inmates sentenced to less than 18 months would not be allowed to reduce their sentence at all – a situation that is directly in conflict with the plain language of the statute. Neither the press release, nor the Program Statement mentions this policy; and both appear to show that the BOP may have abandoned this Ill begotten notion. But only time will tell.
THE PROGRAM STATEMENT
Inmates across the BOP have been complaining about unfair and quite disparate treatment of inmates and their FSA time-credits, only to be shot down by federal district courts if they did not first “exhaust” their administrative remedy rights. In the BOP this is a detailed process where inmates are required to file a series of informal and then formal complaints before they are allowed to proceed to court. The problem with First Step Act issues is that there has been no official program statement – and therefore no real administrative remedy process – since the passage of the First Step Act in 2018. This changed last week with the November 18, 2022, release of the BOP’s new program statement, PS 5410.01.
It is better to have this Program Statement, than not. Without knowing what the BOP’s policy is, it is impossible for BOP staff, inmates, and outside parties (including Congressional oversight researchers) to measure whether the BOP is fully implementing the law. Further, there are many bright spots in the Program Statement showing uncharacteristic liberality by the BOP in its formulation of policy designed to help inmates with re-entry.
However, the Program Statement is fraught with areas of confusion and incomplete explanation. Two of the most obvious areas of concern are the interplay of FSA time-credits and Second Chance Act prerelease custody consideration (RRC and home confinement) and the question of who (which staff, institution, or BOP administrative office) will ensure inmate credits are timely applied.
Regarding the Second Chance Act, the law has long required BOP officials to consider each federal inmate for prerelease custody placement towards the end of his or her sentence (meaning transfer to complete the sentence in a halfway house (RRC) or on home confinement.) This Second Chance Act review normally takes place 17-19 months before the end of an inmate’s sentence, and typically results in the inmate being awarded up to 12 months in prerelease custody.
The problem facing the BOP, in light of the First Step Act’s time-credit program, is that the law also makes clear First Step Act time credits “shall be in addition to any other rewards or incentives for which a prisoner may be eligible.” 18 U.S.C. § 3632(d)(6). In simple terms, inmates are entitled to both Second Chance Act and First Step Act awards.
New BOP training manuals stress that submissions for Second Chance Act placement in prerelease custody must include available FSA time credits earned by the inmate; and the new Program Statement seems to acknowledge this stating: “The RRC and/or HC recommendation will include the total number of days recommended based on the Five Factor Review…required under the Second Chance Act, plus the remaining number of FTC days”.
However, the statement devotes only one obscure sentence to how this Second Chance Act / First Step Act combination will be calculated. It states: “RRC and/or HC referrals will ordinarily be submitted to the respective Residential Reentry Management (RRM) office 12 months in advance of the inmate’s [Projected Release Date] or at least 60 days prior to the projected RRC/HC placement date, whichever is greater.”
Herein lies the problem. Consider an inmate with a lengthy sentence, and a release date of November 2025. Let us say this inmate has earned three years of FSA time-credits. According to the new policy, the first year of the inmate’s earned time-credits are applied to early release. This would make his or her new projected release date November 2024. The remaining two years of time-credits are applied for two years of extra time in prerelease custody (RRC or HC); meaning he or she would be transferred to an RRC or home confinement by November 2022.
But this same inmate is eligible under the Second Chance Act for up to 12 months of prerelease custody, and this is supposed to be “in addition to” the First Step Act Award. According to the new program statement, BOP staff would submit the referral to the RRM “12 months in advance of the inmate’s PRD” or “60 days prior to the projected RRC/HC placement date, whichever is greater.” Operationalized, this means staff would submit the inmate for up to 12 months Second Chance Act prerelease custody on or before November 2021. This cannot happen for inmates in this situation since time has already elapsed. That is the case for thousands of BOP inmates now. Under the law, they are eligible for immediate transfer to prerelease custody; but the BOP continues to adopt policies that require such inmates to serve more time in prison than Congress has envisioned.
This problem appears to be something that will continue, because even if we changed the dates, and put the same scenario in the future, if the BOP waits until 12 months before the PRD to submit the inmate for prerelease custody referral, there is no way the inmate can fairly be considered for up to 12 months additional placement in prerelease custody since the referral will take weeks or months to process, and the transfer after that will also take time to process. Worse, the program statement does not say which staff, institution, or administrative authority will determine how to address this quite common circumstance.
Hopefully, BOP officials will see this issue, or Congress will continue to provide oversight to ensure this problem is addressed. With the lack of clarity, inmates will likely spend many months, and in some cases years, in more restrictive prison conditions than Congress has mandated, and federal habeas lawsuits will continue.
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
