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 Earned Time Credits and Advocacy 

Michael Santos

Michael Santos

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Many people in federal prisons across the nation have written that their release dates reflect only some of the ETC they’ve earned. To the extent that’s true, those people spend more time in prison than they should.

It’s one of the reasons we strive to help people learn the art and importance of self-advocacy. We provide resources people in our community can use.

Ongoing use of diplomacy, advocacy, and litigation will contribute to fully implementing the auto calculation system. Despite the challenging rollout of the system, I’m confident that we’ll get a resolution—and I’ll do my part to nudge the system along, sharing what I learn along the way.

More on those efforts later.

Today I want to respond to a question from Matt, a valued community member. I’ve interacted with Matt since before he surrendered. He contributed to a course I created and distributed to people in jails and prisons across America.

Because of that course on personal leadership that Matt helped me author and distribute, I interact with BOP leaders at the highest level. From them, I try to get accurate information.

I’ve gone through decades with the BOP, and I am conditioned to expect these slow rollouts.

I know the delay hurts those people who expect the agency to move with the swiftness and enthusiasm of an entrepreneur.

We must live in the world as it exists and not as we want it to be.

Bureaucracies Differ from Business

The BOP is not a business. It’s a bureaucracy with over 35,000 employees—some of whom do not want to see the progressive changes that came with the First Step Act. Therefore, we should expect many years of resistance before we see full implementation.

As a reminder, it took more than 20 years of advocacy and litigation before the BOP recognized that people should get credit for 15 percent good conduct time.

It’s one reason we urge our community members to read or listen to Earning Freedom: Conquering a 45-year Prison Term. That book shows the many obstacles that come along the journey. It also offers suggestions on how to plant seeds that lead to better results.

Matt urged me to review BOP Program Statement 5410.01, dated November 18, 2022. He asked that I interpret verbiage on pages 15 and 16 of the Program Statement that governs the implementation of the First Step Act and Earned Time Credits.

I want to be responsive to his request.

Program Statement 5410.01

Pages 15 and 16 of Program Statement 5410.01 includes a lengthy paragraph that may be difficult to interpret:

“RRC and/or HC referrals will ordinarily be submitted to the responsive Residential Reentry Management (RRM) office 12 months in advance of the inmate’s PRD [Projected Release Date] or at least 60 days prior to the projected RRC/HC [halfway house or home confinement] placement date, whichever is greater.”

The paragraph goes on, but I want to dissect this language. It means the BOP will auto-calculate a release date. That date will include projections for ETC credits. But the release date will not change until the person actually “earns” credits—a projection does not equate to earning.

The case manager will make the referral for transition to community confinement when the person is within 12 months of the actual release date. The Residential Reentry Manager will be the person who selects whether the RRC (halfway house or residential re-entry center) can bring the person into the community-based center, either a halfway house or home confinement. Remember that even if the person qualifies, the RRM decides how many people to receive. He will want to ensure the RRC has sufficient staff as he interprets the need.

This interpretation harmonizes with what I learned from a retired BOP executive who previously presided over every federal halfway house and home confinement program in the nation.

The RRM (residential reentry manager) will never meet or interact with the person in prison. To make a decision, the RRM will rely upon the referral package, including the person’s release plan. The case manager is responsible for sending the referral package to the RRM.

Therefore, we offer guidance that people should use to develop a comprehensive release plan. We offer an entire course/workbook on the release plan that people can download from Prison Professors under the “Resources” tab at the top of the page.

Now let’s continue with the paragraph Matt asked me to dissect.

“The RRC and/or HC recommendation will include the total number of days recommended based on the Five Factor Review (see Title 18 U.S.C. Section 3621(b)), required under the Second Chance Act, plus the remaining number of FTC days not applied to supervised release at the time of the referral.”

Let me offer more interpretation for Matt and others in our community.

To understand the section of the paragraph that I quote above, a person would need to understand the actual US Code and BOP Program Statement 5331.02, titled “Early Release Procedures Under 18 USC Section 3621(e).

Title 18 USC Section 3621(3)

The “Five Factor Review” that administrators consider as follows:

Direct quote from Title 18 U.S.C. Section 3621(b):

  1. The resources of the facility contemplated;
  2. The nature and circumstances of the offense;
  3. The history and characteristics of the prisoner;
  4. Any statement by the court that imposed the sentence (a) concerning the purposes for which the stence to imprisonment was determined to be warranted; or (b) recommending a type of penal or correctional facility as appropriate; and
  5. Any pertinent policy statement issued by the Sentencing Commission….

Again, the Five Factors support our position that each person should develop a comprehensive release plan. Each person should pursue an iterative approach, as we show in the example of our Release Plan workbook.

An effective release plan should help administrators learn more about the individual and why he or she is a worthy candidate for early release. 

  • You know why you’re worthy of release. 
  • Your family knows why you’re worthy of release. 

It’s crucial that you think about the RRM and other administrators that have discretion. They know nothing more than what government administrators have written about you.

Separately, the above-quoted paragraph includes the sentence fragment:

  • “plus the remaining number of FTC days not applied to supervised release at the time of the referral.”

The sentence fragment I quote above applies to people serving sentences longer than 30 months. If they qualify for ETC, and they have minimum PATTERN scores, they will receive time reductions of up 12 months off the sentence. Any additional ETC will trump the Second Chance Act, qualifying them for more time in either a halfway house or in on home confinement.

As I’ve written before, the Second Chance Act limits a person’s eligibility for community confinement to up to 12 months. If the person has a sentence of five years or longer, the Second Chance Act provides that the person can serve up to six months on home confinement; if a person has a sentence of less than five years, the person can only serve the final 10 percent of the sentence on home confinement.

With the First Step Act, a person has much more access to community confinement, because it overrides the Second Chance Act, assuming the person qualifies for Earned Time Credits.

The First Step Act does not have a limit to how many ETC a person can earn. Therefore, a person with long sentences, more than five or ten years, should focus on developing a comprehensive release plan that includes:

  1. program participation,
  2. avoidance of disciplinary infractions,
  3. participation in FRP program,
  4. excellent engineering when it comes to preparation for success upon release.

For that reason, we developed our course and workbook showing the strategies that helped me cross through 26 years in prison. See Preparing for Success after Prison. Remember:

  • You know that you don’t belong in prison.
  • Your family knows you should be home.

But each person has a crucial responsibility to develop a body of work. That work should convince cynical administrators that you don’t belong in prison. That strategy worked for me and I’m confident it can work for all people who use it.

Let’s continue dissecting and analyzing the paragraph Matt highlighted from Program Statement 5410.01, on page 16.

“When determining the FTC days available to be applied toward RRC/HC placement, the Bureau will assume that the inmate will remain in earning status from the referral date until the transfer to prerelease custody. There is no expectation the RRC/HC placement date will be modified once the referral has been submitted to the RRM office.”

For reasons stated above, I cannot emphasize enough the importance of a release plan. Each person should see an example of excellence. Participants should realize many people they will never meet will have enormous discretion on their levels of liberty.

In Earning Freedom I described the strategies I used to influence administrators at all levels. It all begins with a release plan, and the body of work that each person creates. I can show a person how to do it, but each person must work independently to create the personal story and release plan.

If you’re a member of our community, ask your representative to provide you with a copy of Earning Freedom. If you’re not a member of our community, consider ordering it from Amazon or Audible with the following links:

For example, if an entrepreneur wants to start a restaurant, he may hire a contractor to build the restaurant. The contractor may build the restaurant, but that doesn’t mean a customer will walk through the door. Each entrepreneur must also persuade people to buy his or her product. They need good marketing, just like every person in prison needs good marketing to show why he or she is a candidate for relief.

To use an analogy that I paraphrase from the marketing expert, Seth Godin, think of the purple cow metaphor.

If a person drives down the road and sees a pasture full of cows, he will not look. The person has seen cows before. No big deal. But if a person sees a purple cow, the person will stop and look.

When I was in prison, I knew that staff members saw me as just another cow in the pasture. I was number 16377-004. I was not different from anyone else. Staff members judged me based on the paragraphs that government workers wrote about me.

To become a purple cow—to make people look at me differently—I needed a comprehensive release plan that I developed over time.

Become a purple cow.

Differentiate yourself from every other person. Because the First Step Act opens opportunities for every person in federal prison to work toward earning freedom or getting higher levels of liberty at the soonest possible time.

The final paragraph in the Program Statement that Matt asked me to analyze follows:

“Prerelease placement is dependent on, but not limited to, the inmate’s release residence, program requirements, and available contract bed space and funding.”

Although Congress has given the BOP discretion to let people transition to society earlier, many administrators will weigh in on the decision. For that reason, all people should deploy the strategies and tactics of a CEO:

  1. Define success,
  2. Create a plan,
  3. Put priorities in place,
  4. Develop tools, tactics, and resources (like an iterative release plan), and
  5. Execute the plan by holding yourself accountable every day.

No one will be more influential than you at persuading authorities that you’re a worthy candidate for transition to society at the soonest possible time. You cannot change the past, but you can influence your future. And I would not ask you to do anything that I did not do.

A comprehensive release plan opened many opportunities for me, but it did not get me out of prison one day early—because the First Step Act did not exist then. I will continue working to advocate and expanding application of Earned Time Credits, as well as the reinstatement of the US Parole Commission, and broader use of Sentence Commutations. Each person must pursue excellence, and it starts with a comprehensive release plan that evolves over time.

Remember the Projected Release Date (PRD) is only a projection. Each person should continuously work to influence broader application and implementation of every policy that can increase a level of liberty, in incremental stages.

Matt asks me to consider how the BOP will define PRD and asks me to assess section 10(b) and the bottom of page 16 of the Program Statement. He then asks me to provide an example, using the following assummptions:

Start date in prison of February 2, 2022.

Sentence length: 28 months

He asked me to project the release date, considering Good Conduct Time (GCT) and ETC.

Let’s figure that out together, using the 28-month hypothetical that Matt offered.

  • Sentence length: 28 months
  • Good Conduct Time at 15%: 4.2 months (subtract)
  • “Net owed to BOP,” assuming earning of all GCT: 23.8 months
  • Surrender Date: February 2, 2022
  • Roughly 12 months served on February 2, 2022.

Conservative estimate (because I always expect the BOP to be conservative): three months with Low PATTERN Score: 1 month of ETC + the three months to earn would equal credit of four months as of May 2, 2022.

This requires us to subtract 4 months from the net owed to BOP of 23.8, which equals 19.8 months of “new net owed to BOP”

Assume minimum PATTERN Score for following months of 2022 and 2023:

  1. May
  2. June
  3. July
  4. August
  5. September
  6. October
  7. November
  8. December
  9. January

Nine months, with 15 days each month of credit: 13.5 months of ETC + the nine calendar months equals 22.5 months.

Subtract 22.5 months from the 19.8 months of “new net owed to BOP” and it would appear that, in the hypothetical example of a person with a 28 month sentence that began in February 2022 already served more time than he owes to the BOP by the end of January 2023.

For this reason, this person may consider filing a 2241 motion, seeking relief from a district court judge that presides in the district where the person serves the sentence.

I have written previously about how to file a 2241. Thankfully, another trusted member of our community, who previously worked as a lawyer, told me that the PLRA would not apply to a 2241.

For that reason, our next article to the community will follow up on the 2241 options.

For now, I wanted to provide Matt (and others in our community) with how I would analyze the sections he described in the policy statement.

Now, I am taking the next step, and sending this response to one of our subject-matter experts who retired from the BOP. From that former BOP executive, I will see where he agrees or disagrees, or what Matt can do to strengthen his case.

I will report on what I learn to all members of our community. I hope that members of our community find this analysis helpful.

Please continue to count on me to provide information that members of our community can use. Obstacles will come. Let’s find solutions to self-advocate in a methodical, deliberate way.

Best,

Michael Santos

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