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October 30, 2023

Detailing yet another challenging detail of earned time credits under the FIRST STEP Act

Walter Pavlo has another effective article in Forbes providing another review of yet another accounting challenge in calculating earned time credits under the FIRST STEP Act. This piece is headlined "Bureau Of Prisons’ Dilemma On First Step Act Credits," and here are excerpts:

The First Step Act (FSA) was signed into law in December 2018. The law allowed prisoners, mostly minimum and low security offenders, to earn a reduction in their sentence for being productive while incarcerated. That productivity is measured by the prisoners’ participation in meaningful programs and having a job while incarcerated. However, nearly five years after the law was enacted, the complexities of the Federal Bureau of Prisons (BOP) ability to comply with the law is still being revealed....

According to the BOP’s own program statement:... "An eligible inmate begins earning FSA Time Credits after the inmate’s term of imprisonment commences (the date the inmate arrives or voluntarily surrenders at the designated Bureau facility).”  [But a recent] decision in a federal court in New Hampshire has upended this definition of when FSA Earned Time Credits begins ... [by ruling that] "the date established by the plain language of the FSA upon which [a defendant] is entitled to begin earning FSA time credits is [the date of sentencing]."...

The BOP is in a bad position in that it can either follow the law, which is flawed, because it has no mechanism to measure success under FSA (classes and work assignment) for prisoners not in their custody at the final designated facility. The alternative is that the BOP can follow a judgment from a federal court and award credits to prisoners who have not complied with the programming requirements of FSA.

One solution, or compromise, would be to get prisoners to their final destination in less time, but that does little to those who went through lengthy transportation nightmares getting to their designated facility.  However, even that is outside of the BOP’s power as transportation of prisoners falls under US Marshals.  Another is for the BOP to provide some programming, even a manual, to give to prisoners immediately after sentencing to start the FSA programming and to provide some sort of PATTERN assessment soon after the prisoner is sentenced.  All of these solutions are outside the control of the prisoner who must serve the time with no means to correct the situation other than going to court.

The BOP could change its FSA Program Statement right now to comply with this New Hampshire decision but it has not and it is likely trying to assess how it can comply.  However, the BOP did not appeal the Yufenyuy decision, so many prisoners remain in limbo on this issue. The result is that the FSA continues to experience problems in its implementation and the prisoners and their families are the ones paying the price.

October 30, 2023 at 11:44 PM | Permalink


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