If a prison term is in your future, learn how to use all of your critical thinking skills to sow seeds for an early release.
Options to Get Out Early
As repeated throughout each of our lessons, our team at Prison Professors encourages people to focus on the best possible outcome. Individuals will define the best possible outcome differently, depending on the values and goals that drive them. Yet every person in prison aspires to return to society at the soonest possible time.
Although a person’s attorney would be best suited to advise on the prospects for release through judicial actions, such as an appeal or a motion for post-conviction relief. This lesson focuses on mechanisms for early release through the executive branch of government rather than the judicial system. Those mechanisms include:
- Good Time Credit: Avoiding disciplinary infractions and compliance with BOP programs entitles people to receive 54 days of “good-time” credits. Basically, if a person doesn’t lose good-time credit, the person will serve roughly 10 months for every year that the judge imposed at sentencing.
- RDAP: Those who qualify and successfully complete the Residential Drug Awareness Program (RDAP) will get up to one year cut from their release date. To qualify, however, an individual must document his problem with substance abuse at the appropriate time; if the person fails to document the substance abuse appropriately, officials may disqualify the person from participating. Read the following policy statement to learn more about what it takes to qualify for RDAP.
- First Step Act: The First Step Act has made it possible for people to petition the warden—or the sentencing judge—for compassionate release. President Trump signed this law with wide bipartisan support. To qualify for compassionate release, a person should build a record showing an extraordinary-and-compelling adjustment. A successful adjustment in prison, together with another factor, may advance a person’s eligibility for compassionate release. The following link will offer more insight on the First Step Act: See our article on the First Step Act.
- Executive Clemency: The United States Constitution, Article II, Section 2, authorizes the President of the United States to adjust prison sentences through Executive Clemency. Inmates may read about this mechanism in Title 28 of the United States Code, Sections 509 and 510. In the past, this has been a very high hurdle. But the crowded prison system has spawned reforms with regard to Executive Clemency.
Below, we offer more information on each of the early-release mechanisms.
Good Time Credit:
When a federal judge sentences a person to a clearly defined number of months, the person eventually makes his way to the Federal Bureau of Prisons. All people serving sentences for crimes that occurred after November 1, 1987, serve time under a system that is known as the Comprehensive Crime Control Act. As such, Title 18 of the United States Code, section 3585(a) applies to them. That section indicates that the Bureau of Prisons will credit 54 days of credit each year to people who comply with all programs and avoid disciplinary infractions.
To earn good time, a person must meet the following criteria:
- Have a sentence that exceeds one year, even if it’s one year and one day.
- Demonstrate proof of having a high school diploma, a GED, or working toward a diploma.
- Avoid disciplinary infractions that can result in the loss of good time during a given year.
If people cannot prove that they have a high school diploma or GED, they will not receive the full amount of good time unless the person works through classes to earn a GED.
Retracting good-time awards:
- If a person receives a disciplinary infraction before the good time vests, the BOP may serve more time in prison.
- If the person’s good time from previous years is vested, the BOP can still take the good time administrators find that the person participated in serious misconduct that disrupted the security of the institution, like a riot or a food strike.
- The BOP can retract previously awarded good-time if administrators later find that the inmate committed disciplinary infractions during a year that it already awarded good time.
People who want to receive the maximum amount of good time in federal prison don’t have to do anything especially “good” or meritorious. They simply must avoid disciplinary infractions and participate in the GED program if they cannot show that they have a high school diploma or its equivalent.
Residential Drug Awareness Program (RDAP):
Many of our articles offer details on the RDAP program, so we will not reprint the details here. Again, anyone can read the program statement that governs RDAP, showing what BOP officials will consider before allowing a person to qualify (and get the benefits of a time cut):
- Policy Statement for RDAP: https://prisonprofessors.com/wp-content/uploads/2020/11/Program-Statement-5330.11.pdf
Basically, those who qualify for RDAP may qualify to receive up to 12 months cut from the scheduled release date. The individual’s sentence length and the amount of time he has remaining to serve when he completes the program will determine how much time the BOP cuts from the release date.
In a nutshell, with regard to RDAP, the key issue is whether the inmate properly documented his substance abuse prior to confinement. As stated in our other articles and interviews, the person should prepare long before meeting with the probation officer who will complete the Presentence Investigation Report.
If a person fails to document the record appropriately, BOP administrators will not authorize the person to participate in RDAP and he will not qualify to receive the time cut.
The United States Code has provided this mechanism under Title 18, Section 3582 for many decades. Until the First Step Act, however, administrators rarely recommended a person for compassionate release. The First Step Act, in the view of our team at Prison Professors, is the most significant prison-reform legislation since the Comprehensive Crime Control Act of 1984.
To initiate a request for release on grounds of compassion, a person must file a request with the warden. His request should articulate that his particular situation has changed since the judge sentenced him, and the changes are of a “particularly extraordinary or compelling” nature. Since the changes could not have been anticipated prior to sentencing, the person may argue that the judge should have an opportunity to review the sentence to determine whether continued incarceration is warranted.
The person’s letter to the warden should also detail his proposed plans for after release. Elaborate on details that include:
- Living arrangements
- Work accommodations
- Health details
- Community support
- Extraordinary record
COVID Pandemic Exception
In the spring of 2020, the COVID Pandemic changed the entire game. As a result of COVID threatening our entire nation, the Attorney General took unprecedented action. He invoked the CARES Act, authorizing the Director of the Bureau of Prisons to release more people to home confinement.
When people in prison felt that the Bureau of Prisons moved too slowly to transfer people from prison to home confinement, they filed motions directly with their sentencing judge, citing a combination of laws, including:
- Title 18 USC Section 3582
- The CARES Act
- The First Step Act
Although no person in prison had a right to transfer to home confinement from prison, many people have succeeded in transferring to home confinement. If it were not for the pandemic, people would have to go through the administrative remedy process before trying to seek relief through Compassionate Release motions. During these unprecedented times, however, judges have used their discretion to help people transition to home confinement from prison.
The video below profiles a person who got a surprise release due to the Cares Act, on the motion of the Bureau of Prisons. Most people we know that transitioned to home confinement had to fight hard for the right to transfer. I blurred the person’s face, because his identify wasn’t nearly as important as his story.
The U.S. Constitution authorizes the President to commute sentences and to forgive people for criminal convictions through the pardon process. These are big issues, especially now, because the Department of Justice has announced that it is working with law firms across the nation to advance more candidates for clemency.
Accordingly, Prison Professor encourages all people in prison to work toward building a compelling narrative that would persuade officials at the Department of Justice and the President that continued incarceration is not warranted. They should understand how the executive clemency process works.
For those who would like to access official forms to pursue executive clemency independently, click the following link:
First, understand the difference between a pardon and a commutation.
- Executive Clemency: Clemency is the overall term for when the President chooses to act on criminal justice matter. The President may choose to forgive a crime in different ways, including amnesty, a pardon, or a commutation.
- Amnesty: Through Executive Clemency, the President may choose issue an order of Amnesty to a particular class of offenders. For example, people who violated various laws pertaining to income tax may have qualified for an amnesty grant if they paid the taxes owed by a certain date. In 1977, President Jimmy Carter granted a blanket amnesty to Americans who refused to serve in the Vietnam War, despite laws that required them to register with the military.
- Remission: Reduces the financial sanction associated with a sentence.
- Reprieve: Delays the imposition of the sentence. This form of Executive Clemency might apply if the President chose to delay the imposition of a death sentence.
- Pardon: The President may forgive an offense through the Pardon process. Pardons may have conditions, or strings attached, or the President may issue a Pardon without conditions. A Pardon can restore certain rights, like the right to bear arms, to vote, or to run for public office. People who are convicted of felonies lose such rights, but a Pardon can restore them. Although the President can grant a Pardon at any time, typically, they only grant Pardons after the individual has finished serving the sentence and lived as a law-abiding citizen for five years.
- Commutation. A commutation will be of interest to anyone in prison, because the President can commute the sentence, at any time. This means the President can say, “enough is enough” by issuing a commutation. The former President Bush commuted the sentence of his aide Scooter Libby, sparing him the indignity of serving a prison sentence altogether.
Acts of Executive Clemency have been rare, especially since our nation made its commitment to mass incarceration. Ironically, when our nation’s prison population was much lower,
Presidents were much more generous in their willingness to use their Executive Clemency powers. To illustrate this point, President Lyndon Johnson served between 1964 and 1969. During those years, our nation’s federal prison system confined fewer than 35,000 people. President Johnson received 4,537 requests from inmates for Executive Clemency. He granted 960 pardons and he commuted the sentence of 226 inmates.
The federal prison population has surged since President Johnson’s administration. Ironically, as federal prison population levels surged, Presidents grew less inclined to forgive sentences through pardon, or to commute sentences.
During President George W. Bush’s eight-year term, the Federal Bureau of Prisons incarcerated more than 200,000 prisoners at all times. He received a total of more than 11,000 petitions for Executive Clemency. If he granted clemency in the same proportion as President Johnson, he would have either commuted or pardoned the sentences of more than 3,000 people. Instead, he pardoned the crimes of 189 people and commuted only 11 sentences, including that of his pal Scooter Libby.
As Prison Professor prepared this lesson, in October 2014, President Obama has only issued pardons to 52 people. He has commuted the sentence of only 10 people. But change is coming.
On April 23, 2014, Deputy Attorney General James M. Cole held an official press conference to announce a new clemency initiative. In his statement, he said:
“For our criminal justice system to be effective, it needs to not only be fair, but it also must be perceived as being fair. These older, stringent punishments that are out of line with sentences imposed under today’s laws erode people’s confidence in our criminal justice system. I am confident that this initiative will go far to promote the most fundamental of American ideals—equal justice under law.”
This new clemency initiative makes it more important than ever for inmates to understand the process of Executive Clemency. The more inmates understand, the better prepared they’ll be to make an informed decision on whether they want to advance a petition for a commutation of sentence.
Preparing a Petition for Clemency:
Those who aspire to become recipients of Executive Clemency, whether by commutation or Pardon, should begin engineering a path that would advance the candidacy of their petition. Before beginning, they should understand the process:
- Once ready, the inmate will prepare the petition, addressing it to the President, but submitting the petition to the Pardon Attorney. Official petitions are available through the Case Manager at the Bureau of Prisons, or through the office of the Pardon Attorney.
- The Pardon Attorney initiates and directs an investigation. In most cases, the Pardon Attorney will request the US Attorney in the district of conviction to provide comments and recommendations.
- The Pardon Attorney will also solicit the views of the sentencing judge. The Pardon Attorney will give considerable weight to the views of both the US Attorney and the sentencing judge when considering the merit of the case.
- The Pardon Attorney will also solicit assistance from the Federal Bureau of Investigation, or other law enforcement agencies. If the case involved victims, the Pardon Attorney will ask those investigative agencies to solicit the views of the victims.
- The Pardon Attorney will request a progress report from the Federal Bureau of Prisons. The Case Manager will prepare the official progress report. Since the Case Manager will ask the inmate to sign the Progress Report, the inmate will have an opportunity to read what the Case Manager wrote.
- If after reviewing all the information, the Pardon Attorney agrees to advance the inmate’s petition, the Pardon Attorney will submit the inmate’s petition to the Deputy Attorney General.
- The Deputy Attorney General will make a decision of whether to advance the petition to the desk of the President, and may work with the President’s general counsel.
Prison Professor advises all inmates who aspire to an act of Executive Clemency to take the matter extremely seriously. They must build a compelling case, even with the new initiative that the Department of Justice has announced. As stated above, many people will have a role in determining whether an act of clemency is warranted. Although none of those people have the power to say yes, they all have the power to say no. And if they say no, the petition will die before the President ever learns of the inmate’s petition.
Inmates who choose to apply should consider the following suggestions from our experts at Prison Professor:
- Build a compelling and distinguished record that would show a commitment to live as a law-abiding, contributing citizen.
- Build a record that would show remorse and a commitment to redemption.
- Build a record that would persuade all readers that continued incarceration is not warranted.
- Persuade the prosecutor to support the petition, or at least not oppose the petition.
- Persuade the sentencing judge to support the petition, or at least not oppose the petition.
- Persuade leading community citizens to write letters that endorse the petition.
Those who want ongoing assistance in preparing the most compelling case for a clemency petition may consider working closely with Prison Professor.
- In what ways will your understanding early-release mechanisms available through the executive branch of government influence your adjustment in prison?
- What type of adjustment in prison would persuade your prosecutor and judge to consider you from a different perspective than they did at sentencing?
- If you were to design, or engineer, a prison adjustment with a goal of pursuing clemency, but the President did not commute your sentence, what would that decision do to your spirits?
- From your perspective, what are the characteristics of an inmate who would receive favorable consideration on a clemency petition?
- How would your adjustment compare or contrast with your answer to the previous question?
- DOJ Link: https://www.justice.gov/jm/jm-9-140000-pardon-attorney
- Sidebars blog: https://sidebarsblog.com/trump-presidential-pardons/