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January 13, 2022

Thousands of federal prisoners finally to get FIRST STEP Act credits as DOJ implements earned time rules

As reported in this new AP article, headlined "Thousands of federal inmates to be released under 2018 law," this weeks brings some big FIRST STEP Act implementation news, just over three years since President Trump signed the landmark sentencing reform legislation.  Here are the basics:

The Justice Department will begin transferring thousands of inmates out of federal prisons this week as part of a sweeping criminal justice overhaul signed by President Donald Trump more than three years ago.

The department, in a rule being published Thursday in the Federal Register, is spelling out how “time credits” for prisoners will work. The bipartisan law is intended to encourage inmates to participate in programs aimed at reducing recidivism, which could let them out of prison earlier....

While the transfers are expected to begin this week, it isn’t clear how many inmates will be released. The department would only say that “thousands” of inmates are being affected.

Under the law signed in December 2018, inmates are eligible to earn time credits — 10 days to 15 days of credit for every 30 days they participate in prison programs to reduce recidivism. The programs range from anger management and drug treatment to educational, work and social skills classes.

The announcement of a finalized rule being published comes about two months after the department’s inspector general sounded an alarm that the Bureau of Prisons had not applied the earned time credits to about 60,000 federal inmates who had completed the programs. It also comes a week after an announcement that the director of the prison agency, Michael Carvajal, will resign from his position in the face of mounting criticism over his leadership.

The Biden administration has faced increased pressure from both Democratic and Republican lawmakers to do more to put in place additional aspects of the First Step Act, and the bureau has been accused of dragging its feet....

The inmates being released will be sent to supervised release programs, released to home confinement or transferred into the bureau’s residential re-entry centers, commonly known as halfway houses. The law allows inmates to earn time credits back to 2018, when the First Step Act was enacted.

The Justice Department says implementation of the finalized rule will begin this week with inmates whose time credits exceed the days remaining on their sentence, are less than a year from release and have a term of supervised release. Transfers are underway. More are expected in the weeks ahead as officials apply the time credits to inmates’ records.

The rule also changes the bureau’s definition of a “day” of credit. A proposed version in January 2020 said inmates would need to participate for eight hours in certain academic programs or prison jobs to qualify for one day’s worth of credit. But the final version changes the timetable and says the prior standard “was inconsistent with the goals” of the law. Inmates will earn 10 days for every 30 days they participate in programs. Inmates who can remain in lower risk categories will be eligible for an additional five days of credit in each 30-day period.

Advocates say the finalized definition of a “day” will make it easier for a wide array of prison programs to count toward time credits and will mean more people will be eligible for release earlier.

This new Justice Department press release, titled "Justice Department Announces New Rule Implementing Federal Time Credits Program Established by the First Step Act," discusses these developments this way:

Today, the Department of Justice announced that a new rule has been submitted to the Federal Register implementing the Time Credits program required by the First Step Act for persons incarcerated in federal facilities who committed nonviolent offenses.  As part of the implementation process, the Federal Bureau of Prisons (BOP) has begun transferring eligible inmates out of BOP facilities and into either a supervised release program or into Residential Reentry Centers (RRCs) or home confinement (HC).

“The First Step Act, a critical piece of bipartisan legislation, promised a path to an early return home for eligible incarcerated people who invest their time and energy in programs that reduce recidivism,” said Attorney General Merrick B. Garland.  “Today, the Department of Justice is doing its part to honor this promise, and is pleased to implement this important program.”

The First Step Act of 2018 provides eligible inmates the opportunity to earn 10 to 15 days of time credits for every 30 days of successful participation in Evidence Based Recidivism Reduction Programs and Productive Activities.  The earned credits can be applied toward earlier placement in pre-release custody, such as RRCs and HC.  In addition, at the BOP Director’s discretion, up to 12 months of credit can be applied toward Supervised Release.  Inmates are eligible to earn Time Credits retroactively back to Dec. 21, 2018, the date the First Step Act was enacted, subject to BOP’s determination of eligibility.

Implementation will occur on a rolling basis, beginning with immediate releases for inmates whose Time Credits earned exceed their days remaining to serve, are less than 12 months from release, and have a Supervised Release term.  Some of these transfers have already begun, and many more will take place in the weeks and months ahead as BOP calculates and applies time credits for eligible incarcerated individuals.

The final rule will be published by the Federal Register in the coming weeks and will take immediate effect.  The rule, as it was submitted to the Federal Register, can be viewed here: https://www.bop.gov/inmates/fsa/docs/bop_fsa_rule.pdf

This seems like a very big deal, especially with the retroactive application of credits and the new "day" rule for earning credit, and I will be very interested to see if the federal prison population (which today BOP reports at 157,596 "Total Federal Inmates") starts a move back down after having grown by around 6,000 persons during the first year of the Biden Administration.

January 13, 2022 at 11:33 AM | Permalink


This is a really big deal for inmates. By taking every available applicable BOP course, inmates will be able to cut their time inside prison.

Posted by: Mike | Jan 13, 2022 7:39:44 PM

This is a really big deal for inmates. By taking every available applicable BOP course, inmates will be able to cut their time inside prison.

Posted by: Mike | Jan 13, 2022 7:39:45 PM

One part of the publication that is still concerning is the insistence on only applying credits for those programs that inmates were "assigned" to. I personally saw this issue arise in the many court cases (including my own case) that made their way to various courts/judges over the past couple years whereby inmates were petitioning for the application of their earned time credits. In simplistic terms, judges/BOP were basically like, "yeah well you did complete the courses, but we never assigned them to you...so you are out of luck". These assignments come from the PATTERN scoring system that was supposedly implemented across the BOP.

For example, within the 52-page report, one such reference (there are many) to assigned programs is here: (2) “Successful participation” requires a determination by Bureau staff that an eligible inmate has participated in the EBRR programs or PAs that the Bureau has recommended based on the inmate’s individualized risk and needs assessment, and has complied with the requirements of each particular EBRR Program or PA."

The problem is, many inmates were never assigned to anything until very recently. At my institution, I didn't actually receive a formal/printed "needs assessment" until late 2021 - around the time of my release. Now the DOJ has allowed programs completed from December 2018 (FSA Enactment date), and has addressed the challenges it faces when trying to assess whether programs completed prior to PATTERN development fit the "criminogenic needs" of the inmate.

This "assignment" caveat has always left me apprehensive with the notion of actually receiving the credits for all the programming I underwent whilst incarcerated. Already, my PATTERN evaluation says that I do not have a "need" for "work". What? EVERY inmate has a "need" for work - it forms one of the most crucial foundations for successful reentry. Most of my programming was via an apprenticeship (work) as my institution offered very, very, very little in the way of programming. The question remains...will I actually get the credits applied...or was there another loophole left for the BOP to utilize?

Overall though, this seems like a huge win for inmates. In my experience with the BOP/DOJ, these wins are very rare and I champion them for finally doing the right thing - for finally siding with the logical interpretations of the law (as it was intended). Although I gripe that I lost valuable time sitting on a wealth of credits...I'm happy that the overall, broader inmate population will benefit from these landmark changes and actions.

I would love to hear your thoughts/take, Mr. Berman...

Posted by: V | Jan 14, 2022 12:04:24 AM

There are still lots and lots of devils in all the details, V, as your comment highlights. I suspect there are thousands of folks like you who have missed out because of the challenges of FIRST STEP application over the last three years.

That said, one reason this latest rule is such a big deal is that it suggests the current (and future?) DOJ/BOP brass is inclined to try to give broad reach to earned-time credits. But that reach will still be limited by various aspects of the statute and likely other practical concerns (e.g., I presume DOJ will not want to allow a person in federal prison to say simply reading a book or watching the right TV program on their own should count as "productive activity" to earn credits).

Good luck getting your credits, V.

Posted by: Doug B. | Jan 14, 2022 10:47:52 AM

I think the BOP's implementation of the FSA won't advantage as many inmates as you might think. This is because the number of inmates eligible for additional credits is severely constrained by 18 USC 3632(d)(4)(D). By my count, inmates convicted of 68 different offenses cataloged from Section 3632(d)(4)(D)(i)-(lxviii) are tarred as "ineligible prisoners." To make matters worse, regardless of the offense of conviction, if the inmate's a "deportable prisoner," Section 3632(d)(4)(E) makes the inmate ineligible for the additional time credits.

Posted by: redlon | Jan 14, 2022 1:06:03 PM

The USSC estimated back in January 2019 that, despite the restrictions you cite, redlon, there may be more than 80,000 federal prisoners who will earn credits. https://www.ussc.gov/sites/default/files/pdf/research-and-publications/prison-and-sentencing-impact-assessments/January_2019_Impact_Analysis.pdf

Posted by: Doug B. | Jan 14, 2022 11:30:02 PM

Thank you for your response Mr. Berman. I was actually released today! In the end, I received roughly 2.5 months of time credits leading to an early release from BOP custody. Now I begin my assigned term of supervised release early. As I alluded to in my previous comment, a little "bittersweet"...but I'll never complain about actually getting something out of the BOP.

Question for you - and I see that you just posted another blog post re: the same: Can the remainder of an inmate's credits be applied to REDUCE the term of supervised release? In my reading and interpretation of the law, bills, and the recent 52-pager, I actually don't see that question directly addressed. Doesn't "pre-release custody" encompass "supervised release"? So far, I've been told to take the matter to the courts (by USPO), but I'm interested to hear your thoughts on the application of time credits to further reduce imposed terms...specifically, supervised release...as I still have a host of unused, accrued credits.

Thank you again, Mr. Berman.

Posted by: V | Jan 18, 2022 3:44:28 PM

I am unaware of any statement that credits can be used to reduce the duration of SR, and that is why you may be told to try to press the point in court. But I will keep an eye out and try to post about these "technical" questions that remain.

Posted by: Doug B. | Jan 19, 2022 2:33:53 PM

Under the FSA does the reference to "imposed term of imprisonment" when addressing application of FSA Time Credits mean the unadjusted term imposed as part of the sentence or the term adjusted for good conduct under the First Chance Act? If it's the former, with a 30 month sentence there is no significant benefit to use of credits when you have to wait to have earned as much as you have left to serve. I can find nothing specifically addressing this so I assume it to be the actual full term time left without taking into account the reduction from the 54/year good conduct credits. Please let me know your thoughts.

Defense Attorney

Posted by: NV | Apr 25, 2023 5:24:43 PM

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