Blog Article 

 Early Release & Earned Time Credits: FAQs 

Michael Santos

Michael Santos

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Introduction

Since January 13, 2022, our team has received many calls from family and friends of people in prison for years, letting us know that their family member was suddenly released from prison based on First Step Act earned time credits.  

One person in a Texas medical prison got a call to report to Health Services immediately, only to then be told, “go pack up, you’re going home,” after serving eight years. Another person incarcerated in Florida had a similar experience. 

Immediate release under the First Step Act earned time credits is now a real thing. The Federal Bureau of Prisons (BOP) is computing First Step Act earned time credits and automatically applying them to reduce people’s time in federal prison. 

What are earned time credits under the First Step Act?

Eligible people in federal prison have the opportunity to earn 10 to 15 days of time credits for every 30 days of successful participation in a specific list of programs and productive activities. The earned credits can result in an earlier move to a halfway house, home confinement, or probation.  

Now that implementation of this aspect of the First Step Act of 2018 (18 USC sec. 3632(d)(4)) is visibly in motion, people have many specific questions about the First Step Act earned time credits provisions.

Background

On January 13, 2022, the Federal Bureau of Prisons (BOP) published a final rule regarding early release opportunities for people serving time in federal prisons.

This development was long overdue.

Congress included earned time credits in the First Step Act over 3 years ago.

As with many things having to do with early release, the BOP dragged its feet by, among other things, making implementation suggestions and proposals that undermined the goals Congress had in creating the earned time credits program

Thus, up until January 13, 2022, the implementation of earned time credits under the First Step Act fell short of expectations. As of that date, we had seen no evidence that the BOP released anyone under the earned time credits provisions. Nor had we seen any evidence that the BOP had started to calculate people’s earned time credits, let alone apply earned time credits to eligible people in their custody. 

Although there were some justifiable delays in implementation, no doubt due to the pandemic, the BOP was in no hurry to help eligible people get their time credits and return to their families and communities as soon as possible. 

Based on BOP’s procrastination, many people lost faith that the earned time credits provisions of the First Step Act would have a meaningful impact on people’s lives.

Now that we have seen the earned time credit program in action, we hope that many more people in the federal system will avail themselves of the chance to directly impact their release date by being productive. 

Frequently Asked Questions

As we try to answer and clarify some of the frequently asked questions about earned time credits and the First Step Act, remember that there is still much to learn as the rollout continues. As developments warrant, we will provide updates and continue to answer questions for people impacted by this program. 

Who created the earned time credit program rules?

Congress left it up to the BOP to create a rule to implement procedures for earning and awarding earned time credits to eligible people in federal prison. 

Specifically, the First Step Act defines who can earn the credits based on their criminal offense and risk level. The Act also directs the BOP to create a risk and needs assessment system (known as PATTERN) that can help determine a person’s risk levels and programming needs. Congress asked the BOP to identify evidence-based programs and productive activities. Finally, Congress asked BOP to develop the rules and mechanisms for this new system. 

What are the Evidence-Based Recidivism Reducing Programs and Productive Activities? 

The BOP has published a list of all approved Programs and Productive Activities in the First Step Act Approved Programs Guide. See below to access the list of programs: 

The BOP will update the list each year. Among the programs and productive activities included on the BOP list are UNICOR and RDAP, specific BOP-approved online correspondence college courses, and faith-based activities. 

Can anyone in federal prison participate in programs and engage in productive activities?

Generally speaking, anyone in federal prison can take courses that award earned time credits. Still, not everyone is eligible to apply their earned time credits toward pre-release custody or supervised release. 

See below for a summary of criteria that can make a person ineligible to apply earned time credits toward early release from prison or supervised release:

Do the First Step Act Earned Time Credits Reduce Your Sentence?

Earned time credits do not shorten a person’s sentence, but they can make people eligible for earlier transfer to a halfway house, home confinement, or supervised release. Reports say that BOP data shows that about half of all people in federal custody—tens of thousands of people—are eligible to earn time credits and get an early start reintegrating into the community and reuniting with family.

Who can apply earned time credits towards early release?

Early release is available for people under BOP custody in federal prison, halfway house, or home confinement, who:

  • are serving a federal sentence; 
  • have successfully participated in qualifying programs or productive activities; 
  • are considered a “minimum” or “low” risk of re-offending or can obtain the warden’s approval; and
  • have earned time credits equal to or higher than the remainder of their prison term. 

Who cannot earn time credits or apply them towards early release? 

People serving sentences for convictions under state or District of Columbia law, or people who have a final order of removal under immigration law, cannot apply earned time credits towards early release.

Likewise, people serving a sentence for a conviction the First Step Act identifies as disqualifying cannot earn time credits. 

*Note: Offenses that make people ineligible to earn time credits are generally categorized as violent, or involve terrorism, espionage, human trafficking, sex, and sexual exploitation. 

Additionally excluded offenses are a repeat felon in possession of firearm or high-level drug offenses. If disqualified, people can earn other benefits for successful participation in recidivism-reducing programs.

See below for more information about disqualifying offenses:

Certain prior convictions may also prohibit people from earning credit in some circumstances. Still, observers believe that as many as 50% of people in federal prisons today may qualify for early release under the earned time credit programs.

How do people in prison earn time credits under the First Step Act?

A person can earn 10 days of credit for every 30 days of “successful participation” in programs and productive activities that the BOP recommended.

To be eligible for earned time credits, people must remain in a minimum or low-risk category for re-offending. If they remain at low or minimum risk of re-offending over two consecutive assessments, they can earn an additional 5 days of time credits for every 30 days in programs and productive activities. 

How is a “day” calculated to count toward successful participation? 

Under the final rule, a “day” does not mean the individual must participate in 8 hours of programming to get credit, which was the BOP’s prior position. 

Instead, a day means a calendar day on which the person participates in whatever assigned programming takes place on that date. 

For example, a person assigned to 3 programs that take place 3 times a week should receive credit as long as they consistently attend the program or activity for 30 days.

Moreover, people can receive credits even if they cannot complete the program. 

Which programs and productive activities qualify? 

Under the First Step Act, programs or productive activities are recommended by BOP staff based on the BOP’s assessment of a person’s individualized risk of re-offending and their programming needs. (The risk and needs assessment is based on a tool called PATTERN.)

Programs a person took after the law passed but before the risk and needs assessment became official will count towards earned time credits.

That is, the award of credits is retroactive to the date that Congress passed the First Step Act.

Can I earn programming credits if my programs or productive activities are interrupted or unavailable for reasons beyond my control? 

Generally, people should not be penalized under those circumstances unless it was their choice not to participate in programs or productive activities. 

However, there are times when a person will not be considered to have “successfully participated” and therefore will not receive credits. One example is when a person gets sent to the SHU for a disciplinary infraction.

Also, people will not get credits when they are on designated status outside their BOP facility. Some common reasons people are out of their prison facility and unable to participate in programs include: 

  • medical evaluation or treatment;
  • court appearances;
  • extended furloughs;
  • on a writ;
  • on a temporary transfer to the custody of another federal or nonfederal government agency; 
  • on a mental health hold.

CAN PEOPLE EARN TIME CREDITS WHILE AT A HALFWAY HOUSE OR ON HOME CONFINEMENT?

Yes. The BOP has publicly agreed that people in prerelease custody—whether in a residential reentry center (RRC) or on home confinement—are eligible to earn First Step Act Time Credits under 18 U.S.C. 3632(d)(4)(A), which they can then apply, under 18 U.S.C. 3632(d)(4)(C), toward transfer to supervised release. 

What can I do with First Step Act earned time credits? 

Eligible people who have earned time credits can apply them toward early release from prison, halfway house, home confinement, or supervised release. Transfer to supervised release can be for not more than one year. 

When can I begin earning time credits under the First Step Act? 

People can participate in programs and productive activities as soon as their sentence begins. 

How are earned time credits applied so people can leave prison early?

 A person still in federal prison is eligible for transfer to a halfway house or home confinement when they have:

  • earned credits that equal the time left on their sentence; 
  • low or minimum risk of recidivism for several consecutive assessment periods or receive the warden’s approval.

A person is eligible for transfer to supervised release when they are within 12 months of the end of their sentence and have to serve time on supervised release. In addition, the person maintained a low or minimum risk of recidivism for several consecutive assessment periods or received the warden’s approval.

 Warden approval means the warden has determined that the person does not pose a danger to society, has made reasonable efforts to lower their risk of recidivism, and is unlikely to re-offend.

Can people lose earned time credits they have earned? 

Yes, people can lose their earned time credits if they violate the programming rules. The BOP has created a table for sanctions involving earned time credits similar to the sanctions table the BOP uses to take away people’s good time credits. 

Prohibited Acts and Available Sanctions

AVAILABLE SANCTIONS FOR GREATEST SEVERITY LEVEL PROHIBITED ACTSB.2
Forfeit up to 41 days of earned FSA Time Credits for each prohibited act
committed.
AVAILABLE SANCTIONS FOR HIGH SEVERITY LEVEL PROHIBITED ACTSB.2
Forfeit up to 27 days of earned FSA Time Credits for each prohibited act
committed.
AVAILABLE SANCTIONS FOR MODERATE SEVERITY LEVEL PROHIBITED ACTSB.2
Forfeit up to 14 days of earned FSA Time Credits for each prohibited act
committed.
AVAILABLE SANCTIONS FOR LOW SEVERITY LEVEL PROHIBITED ACTSB.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

Can people go to court if they disagree with the BOP’s calculation of their earned time credits? 

After going through the administrative remedies process, people can ask a federal judge to review the BOP’s calculations of their earned time credits. However, based on some court cases where people tried to force the court to order the BOP to give them their earned time credits, courts were not in a hurry to weigh in and showed a lot of deference to the BOP. At this time, 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. 

CONCLUSION

The team at Prison Professors continues to assist people with their questions about earned time credits under the First Step Act. 

The BOP must continue to implement this important early release program.

Prison Professors, an Earning Freedom company, works alongside (not in place of) civil and criminal defense counsel to help clients proactively navigate through investigations and prosecutions. Our team also helps clients prepare mitigation and compliance strategies.

If you have any questions or are uncertain about any of the issues discussed in this post, schedule a call with our risk mitigation team to receive additional guidance.

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