Free Copy of Earning Freedom
Introduction
By now, everyone knows that people in federal prisons can earn time credits under the First Step Act and redeem their time credits for earlier transfer to a halfway house, home confinement, or supervised release.
But did you know that people already at the halfway house or home confinement can accumulate more earned time credits to apply towards reduced supervised release?
Yes, in a little-noticed about-face last week, the Federal Bureau of Prisons (BOP) admitted that it would award First Step Act earned time credits for productive activities and programs people join in their communities after release from a prison facility.
Discussion
More people than ever before are now spending significant amounts of time at halfway houses and home confinement due to the COVID-19 pandemic. It is one of the goals of the CARES Act to reduce the federal prison population by having people continue to serve their sentence on home confinement to reduce the spread of COVID-19.
In the COVID-19 era, thousands of people are spending a year or more serving the end of their federal sentence on home confinement. As of last week, they can earn time credits and accelerate their release from custody.
That’s because they can engage in productive activities and programs and earn First Step Act earned time credits. They can then apply the earned time credits to reduce their time on home confinement or supervised release.
The Federal Bureau of Prisons opposed this approach but has retracted its opposition.
The BOP’s Initial View
The BOP initially proposed that earned time credits under the First Step Act can “only be earned while an inmate is in a BOP facility and will not be earned if an inmate is in a Residential Reentry Center or in home confinement.”
The BOP’s interpretation of the First Step Act in this regard was incorrect and inconsistent with the goals of the First Step Act. Therefore, the BOP was forced to retract its opposition last week publicly.
Before the final rule was published on January 13, 2022, critics of the BOP’s original approach suggested that BOP needed to revise its approach and allow people to earn time credits while in an RRC/halfway house or on home confinement.
Congressman Hakeem Jeffries (D-NY) was very vocal, stating:
“I see no reason to make individuals in Residential Reentry Centers (RRCs) or in-home confinement ineligible to earn time credits. . . . Congress could have used a narrower definition or explicitly excluded certain categories of individuals based on where they serve their sentence, but it chose not to do so.”
Thankfully, the BOP carefully considered the comments from Congressman Jeffries and many others.
A Better Approach
The First Step Act does not ban people from earning time credits while in home confinement or in a halfway house or Residential Re-entry Center (RRC).
So, can you earn First Step Act time credits on home confinement or halfway house?
Yes, the First Step Act provides that “prisoners,” (people in the custody of the BOP) can earn time credits, and nothing in the law excludes those in home confinement or at a halfway house from earning time credits.
Let’s go through the analysis in more detail.
A “prisoner” is “a person who has been sentenced to a term of imprisonment pursuant to a conviction for a Federal criminal offense, or a person in the custody of the Bureau of Prisons.”
Because “[p]re-release inmates at an RRC remain in Federal custody while serving a sentence imposed by a US District Court or DC Superior Court,” they are “prisoners” under the First Step Act.
The First Step Act does not distinguish between “prisoners” who are serving their sentence in a BOP prison facility, in an RRC, or on home confinement. The key is that the prisoner remains in the custody of the BOP.
Moreover, the First Step Act allows people to apply earned time credits to reduce their term of supervised release. Since earned time credits earned while at the halfway house or home confinement can be redeemed for time off supervised release yet to come, there is a benefit and incentive for people to keep earning time credits.
Allowing people at a halfway house or RRC to continue to earn time credits by participating in programs and productive activities that reduce the risk of re-offending is consistent with the purposes of the First Step Act.
Are Community-Based Programs Good Enough?
There are many valuable programs in the community that will benefit people returning from federal prison. For example, RRCs/halfway houses regularly offer substance abuse treatment programs, family reunification programs, anger management programs, and others, similar to approved programs at BOP institutions.
Whether inside a prison facility or through the RRC/halfway house, these types of programs help reduce a person’s risk of recidivism in similar ways.
The BOP knows this well. People who complete the Residential Drug Abuse Program (RDAP) in prison must undergo follow-up substance abuse treatment when they return to their communities. This follow on treatment is an RDAP requirement, and people who do not comply lose their RDAP benefits. The BOP monitors the third parties who provide the treatment in the community.
In fact, proponents argue that community-based treatment programs through an RRC or halfway house may be even more effective than prison treatment programs. As people are closer to release from custody and in the community, they can begin to put lessons learned into practice as they transition home.
Last week, the BOP publicly agreed that people in prerelease custody—whether in a residential reentry center (RRC) or on home confinement—will remain eligible to earn First Step Act earned time credits (under 18 USC 3632(d)(4)(A)). They can then apply their earned time credits toward transfer to supervised release (under 18 USC 3632(d)(4)(C)).
Can BOP Track Community-Based Earned Time Credits?
Absolutely. The BOP’s stated concern about tracking people’s progress at a halfway house was disingenuous. Tracking a person’s earned time credits should not be a barrier, whether from a treatment provider or a community college.
The BOP already knows how to track community-based substance abuse treatment programs, which it already does for RDAP graduates. It is a condition of early release for RDAP graduates to continue substance abuse treatment in the community. The BOP makes sure RDAP graduates comply with this requirement. Now, RDAP graduates could also earn additional time credits from their participation in community-based treatment.
Opportunities to gain additional earned time credits in the community are plenty, and the BOP should facilitate and encourage them. While in the halfway house/RRC and home confinement, people have to show they are being productive. Many work or education activities could easily qualify for earned time credits. There are many faith-based programs in every community, similar to the faith-based programs BOP offers inside.
As a practical matter, programming and services for people in RRCs or home confinement are provided off-site or by third-party providers, which should make tracking successful participation easier.
For example, community-based substance abuse treatment programs are outpatient services in most instances. BOP can obtain records documenting successful participation from third-party providers, which it currently does for RDAP graduates.
As of last week, the BOP has agreed to work with eligible inmates in RRCs and home confinement to identify appropriate available programming for them to earn First Step Act time credits. The BOP also must determine how to best track participation as part of the BOP’s commitment to ensure the maximum number of earned time credits are available to the maximum number of eligible people.
CONCLUSION
Allowing people to earn First Step Act time credits during their home confinement or halfway house is another step forward. Congress, the BOP, and the DOJ must continue to expand the impact and reach of the First Step Act for people willing to work hard on rebuilding after prison.
