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Introduction
Thousands of federal prisoners have been released recently under the earned time credits programs of the First Step Act.
Finally, after three years, the BOP has published the final rule for implementation of the programming aspects of the First Step Act, including early release with earned time credits.
SEE BELOW TO ACCESS OUR PRIOR ARTICLE ON EARNED TIME CREDITS DISCUSSION & FAQs.
Like with “good days” or “good-time credits,” people earning First Step Act earned time credits must guard them zealously, understanding that the BOP can take time credits away.
And although there are also provisions for restoring lost earned time credits under certain conditions, our advice is to guard earned time credits by following all the prison and program rules along the way.
Discussion
People in federal prison and those about to begin serving a federal sentence can now be more optimistic because they can influence their release date when they participate in approved Bureau of Prisons programs and productive activities.
See below to access the current list of BOP Approved Programs.
We now have initial evidence that the BOP will award people’s earned time credits under the First Step Act. Moreover, the BOP will follow the intent of Congress and apply earned time credits towards a person’s early release from prison, halfway house, home confinement, or supervised release.
Thus, the incentives for people to be productive while serving a federal prison sentence have never been higher.
However, we must also acknowledge the reality that people can lose their earned time credits under certain circumstances and that how the BOP will handle loss and restoration of earned time credits remains to be seen.
For now, let’s look at the rules for loss of time credits and sanctions as published on January 13, 2022.
Loss of FSA Earned Time Credits
People in federal prison can lose First step Act earned time credits by violating the rules of an assigned program or productive activity. The number of earned time credits lost depends on the severity of the rules violation, and a person must have clear conduct for a year to restore lost credits.
What is good time credit and who is eligible?
Good time credit reduces a prisoner’s actual time in BOP custody. Federal prisoners serving a sentence of more than one year (at least 12 months and one day) and less than life in prison are eligible to earn good time credit.
A federal prisoner gets a maximum of 54 days per year of good days, or good time credit, for every year of their sentence, which amounts to a 15% reduction. This time off is sometimes called “good conduct time” because people earn it for “good behavior” or “exemplary compliance with institutional disciplinary regulations.”
See below for a comprehensive discussion of federal good time credit:
With that as background, this is the actual provision regarding the Loss of FSA earned time credits, which BOP modeled after the loss of good time credit:
§ 523.43 Loss of FSA Time Credits.
(a) Procedure for loss of FSA Time Credits. An inmate may lose earned FSA Time Credits for violation of the requirements or rules of an EBRR Program or PA. The procedures for loss of FSA Time Credits are described in 28 CFR part 541.
(b) How to Appeal loss of FSA Time Credits. Inmates may seek review of the loss of earned FSA Time Credits through the Bureau’s Administrative Remedy Program (28 CFR part 542).
(c) Restoration of FSA Time Credits. An inmate who has lost FSA Time Credits under this regulation may have part or all of the FSA Time Credits restored to him or her, on a case-by-case basis, after clear conduct (behavior clear of inmate disciplinary infractions under 28 CFR part 541) for two consecutive risks and needs assessments conducted by the Bureau.
What We Know So Far
The final rule for FSA Time Credits was published about one week ago. We have no experience with how the BOP will implement the rule in practice, but we will continue to monitor all developments.
Here is what we know so far:
- The First Step Act authorized the BOP to put in place procedures for reducing earned time credits when people violate prison programming rules. (See 18 USC 3632(e).)
- BOP also put in place procedures for restoring lost earned time credits, based on a person’s individual progress after the date of the rule violation.
- The BOP has now published the procedures for such cases.
- The BOP will implement loss of earned time credits procedures through the existing prison disciplinary process.
- People who lose earned time credits can seek a review through the Administrative Remedy Program. (See 28 CFR part 542.)
- People can lose their earned time credits if they violate the requirements or rules of an approved program or productive activity.
- According to the BOP, “an inmate will not be considered to be successfully participating if that inmate refuses to participate in or otherwise violates conditions, rules, or requirements of programs or productive activities recommended based on the inmate’s risk and needs assessment.”
- Also according to the BOP, “temporary interruptions in participation that are unrelated to an inmate’s refusal to participate or other violation of programming requirements, or that are authorized by the Bureau, such when a recommended program or activity is unavailable or at full enrollment, will not affect the inmate’s ability to earn Time Credits.”
- BOP: “If an eligible inmate refuses to participate in the recommended program or activity, engages in misconduct that results in removal from the program or activity through placement in restrictive housing, or disrupts or fails to follow the conditions, parameters, or rules of the program or activity, accrual of Time Credits is paused until the inmate complies with programming or completes the disciplinary sanction. This methodology is intended to guide inmates back to the appropriate pro-social goals of programming and act as a deterrent for future misconduct, giving inmates a direct incentive to maintain clear conduct (behavior clear of inmate disciplinary infractions under 28 CFR part 541).”
- Failure to complete an assigned activity may itself constitute an infraction (e.g., failing to accept a mandatory work assignment). In those cases, the failure to complete a mandatory activity may result in the loss of time credits.
- It will take about 12 months of clear conduct — or two consecutive risks and needs assessments — for a person to have part or all of the lost earned time credits potentially restored.
- The BOP’s Table of “Prohibited Acts and Available Sanctions” for the loss of earned time credits resembles the sanctions structure for loss of Good Conduct Time. (See BOP Table below.)
- People lose good days in escalating amounts depending on the severity level of the prohibited act committed. The loss of earned time credits will work similarly, in escalating amounts depending on the severity of the rule violation.
Prohibited Acts and Available Sanctions
| AVAILABLE SANCTIONS FOR GREATEST SEVERITY LEVEL PROHIBITED ACTS | B.2 Forfeit up to 41 days of earned FSA Time Credits for each prohibited act committed. |
| AVAILABLE SANCTIONS FOR HIGH SEVERITY LEVEL PROHIBITED ACTS | B.2 Forfeit up to 27 days of earned FSA Time Credits for each prohibited act committed. |
| AVAILABLE SANCTIONS FOR MODERATE SEVERITY LEVEL PROHIBITED ACTS | B.2 Forfeit up to 14 days of earned FSA Time Credits for each prohibited act committed. |
| AVAILABLE SANCTIONS FOR LOW SEVERITY LEVEL PROHIBITED ACTS | B.2 Forfeit up to 7 days of earned FSA Time Credits (only where the inmate is found to have committed a second violation of the same prohibited act within 6 months; forfeit up to 14 days of FSA Time Credits (only where the inmate is found to have committed a third violation of the same prohibited act within 6 months)… |
Source: https://www.bop.gov/inmates/fsa/docs/bop_fsa_rule.pdf
In sum, we are only at the beginning of this new process.
We will continue to monitor the BOP’s ongoing implementation of the earned time credit rules moving forward.
What About Court Intervention?
People are starting to wonder to what extent they can take to court a dispute with the BOP over the calculation of earned time credits, or the loss and restoration of earned time credits.
We are at the inception of the process so a lot remains to be seen. Like in other areas, people will ask a federal judge to review the BOP’s calculations of their earned time credits once they complete the administrative remedies process.
However, based on some court cases where people have tried to nudge courts to order the BOP to calculate and apply earned time credits, courts do not seem eager to weigh in. On these kinds of matters, courts tend to show a lot of deference to the BOP.
For this reason, we believe that courts are likely to defer to the BOP’s calculation of First Step Act earned time credits when there is a dispute, but time will tell.
CONCLUSION
This post is a reminder for everyone working on earned time credits that “the BOP giveth and the BOP may taketh away.”
A person who violates the rules and requirements of an approved BOP First Step Act program or productive activity may lose earned time credits. Restoration of some or all lost earned time credits requires that a person maintain clear conduct for two consecutive risk assessments (one year).
In the same way that people wanting early release guard their 54 good days/year by avoiding disciplinary infractions, they would do well to guard their earned time credits by abiding by all the program rules.
For now, First Step Act earned time credits are real, and they result in people’s actual early release from prison, halfway houses, home confinement, or supervised release. Losing these time credits essentially extends a person’s time in custody.
