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August 10, 2021

Earned time credits set up by FIRST STEP Act subject to notable litigation

Though easily forgotten with all the COVID era issues and concerns, one the biggest and potentially most consequential elements of the FIRST STEP Act was its creation of a system of "earned time credits."   This part of the Act would enable certain inmates under certain circumstances to earn increased time in pre-release custody (i.e., to move from prison to a halfway house and/or home confinement).  I recall thinking at the time of FIRST STEP enactment that a robust approach to "earned time" could prove to be very consequential for incarcerated individuals while a limited approach to "earned time" could significantly reduce its potential and importance.  Against that backdrop, I am not surprised to see this new Reuters piece headlined "U.S. Justice Dept clashes with inmates over credits to shave prison time."  Here are basics:

The U.S. Justice Department asked a judge on Tuesday to deny a bid by four low-level federal inmates to qualify for early release under a new criminal justice reform law that allows shortened prison terms through recidivism-reduction programs.

In the U.S. District Court in Oregon, federal prosecutors said no program or activity the inmates took part in qualify for earned time credits. The inmates' public defender and some lawmakers have said the Bureau of Prisons' (BOP) criteria are too strict....

At issue is a provision from the 2018 First Step Act, which aims to ease harsh sentencing for non-violent offenders and reduce recidivism. The BOP may award 10 or 15 days' credit for every 30 days of participation in recidivism-reduction or activities such as academic classes or certain prison jobs. In a January 2020 proposal, the BOP defined a day of participation as 8 hours and limited the menu of qualifying programs.

"The math speaks for itself," federal defenders wrote in a January 2021 letter to BOP. "It would take 219 weeks, or over 4 years to earn a full year of credit under the BOP's proposed rule."

In Tuesday's case, lead plaintiff Adrian Cazares is serving a 71-month sentence for cocaine importation. He has held prison jobs such as a painter and an HVAC worker, and completed courses such as anger management, entrepreneurship, and a residential drug abuse program. None of those are on the BOP's approved list, prosecutors said.

"If HVAC work doesn't qualify, what kinds of jobs do?" asked Magistrate Judge John Acosta, noting the program's goal of reducing recidivism and facilitating reintegration into society.

"The ones that are identified by the Bureau of Prisons," federal prosecutor Jared Hager replied, noting the inmates have "not shown entitlement to any credit." The list of qualifying programs and activities will be updated by Attorney General Merrick Garland, he added.

A few prior related posts:

August 10, 2021 at 03:44 PM | Permalink


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