The Bureau of Prisons finally published the First Step Act policy. The new policy makes marked improvements. Use the link below to download the policy or read our summary.
First Step Act Policy 5410.00—Earned Time Credits:
On November 18, 2022, the Bureau of Prisons published Program Statement 5410.01, titled First Step Act of 2018—Time Credits: Procedures for Implementation of 18 USC Section 3632(d)(4). This Program Statement clarifies many factors that people in federal prison need to know.
With this policy, we do not see any mention of the controversial 18-month rule. That “rule” came out through an unsigned memorandum, indicating that the BOP would finalize release dates once a person moved to within 18 months of release. It would have removed the ability for people with shorter sentences to reap the full benefit of the First Step Act. Thankfully, Policy Statement 5410 does not mention such a rule, which means the BOP reversed the practice of “finalizing” release dates. People can earn time credits even while they’re in administrative detention. Another critical change tells us that people will continue earning credit while in the halfway house or in home confinement.
Now that the Correctional Programs Division of the Bureau of Prisons has published this Program Statement, we anticipate that Grand Prairie administrators will begin adjusting release dates. Our Subject-matter expert let us know that we should expect the following:
- The Bureau of Prisons will recompute every person’s sentence computation sheet. With more than 100,000 people in prison, this task may take a week or so. We should expect to see the new computation dates reflected on the BOP’s website for each person by mid December.
- If the new release date does not match with a person’s records, Policy Statement 5410 encourages people to work through the administrative remedy process.
The program statement makes clear that up to 365 days of earned FTCs will automatically apply to early release for people who meet the following criteria:
- Has a term of supervised release to follow the term of incarceration,
- Has a low or minimum PATTERN risk level,
- Has maintained a low or minimum PATTERN risk level for at least two consecutive assessments conducted during regularly scheduled Program Reviews,
- Has no detainers or unresolved pending charges, to include unresolved immigration status and,
- Has not opted out or refused to participate in any required program and, therefore, is in earning status.
Also, the program statement clarifies that eligible people may earn up to a year for RDAP and an additional year off for participation in other programs.
For these reasons, it makes sense for each person to understand this policy and to do everything necessary to qualify.
For more insight, we encourage people to participate in our free interactive webinars.
So did my first review, most likely will have to review several times to get the entire gist of it, but couple things jump out:
Separately, we hired one of our subject-matter experts to analyze policy statement 5410.00. He provided us with useful information that members of our community should know and understand, including:
- As Hugh Hurwitz, the former BOP Director initially recommended, the BOP has determined that a person in federal prison will be able to see all of their potential Federal Time Credits (FTC) at their first team meeting.
- People will continue to earn FTCs while in Administrative Detention. Participation will be limited in that they cannot leave to go to programs/classes. But if they have access to self-directed classes, they may earn FTCs while in Administrative Detention.
- People will continue to earn FTCs while in the community, as long as they are compliant with the rules of the Residential Reentry Center or home confinement.
- If a person signs up for an approved class, and the person qualifies for FTC, the person will remain in “earning status” while on the waitlist. The policy limits this to two consecutive assessment time frames, but administrators have discretion on this matter. This policy should lead to more programs that will qualify for FTC in federal prison.
Areas for Advocacy:
- The policy statement also addresses complications with juveniles in federal custody, and people serving sentences under the DC code, and people serving state sentences. These provisions will require more advocacy and time for the BOP and the courts to resolve.
- Another issue that the courts already ruled on is detainers or concurrent jurisdiction cases. If a person has a concurrent federal and state sentence (ran at the same time) and the individual is in state custody, there is no reason that the BOP cannot allow for FTC credits to allow the Federal Sentence to be shortened. This interpretation would not infringe upon the state sentence in any way.
- The program statement does not specify how the BOP will document a delay of a person to complete the SPARC 13 questionnaire. Our subject-matter expert considers this an area of contention. It will most likely take a lot of Administrative Remedies and Court Cases to resolve. People should learn about SPARC 13 and any other questionnaires that the BOP requires and complete those questionnaires or surveys as soon as possible.
- We have enough cases where an individual is designated to a RRC to serve their sentence, generally sentences of a year or less but with the Elderly Offender Program we have seen this extended significantly. According to the program statement, people may earn FTCs but its contrary to the language in 6(a). The language of 6(a) puts people FTC earning status upon arrival at a designated Bureau facility. Advocacy may be necessary to change this language to allow for designation to a BOP facility or any other facility.
- Pg 13 10(a) goes against the recent court case regarding application of FTC towards early termination of the Federal Sentence if a detainer is in place. The court ruled that the BOP should apply FTCs toward early termination of the Federal Sentence and transfer to the detaining agency. The policy does not allow for this transfer and may require additional advocacy.
- Pg 15, 2nd bullet says that if an individual transferred to early placement into a RRC, and subsequently returns to BOP custody, the person “ordinarily” will not to be considered for placement again under the FSA FTC criteria. This may be problematic for individuals who earned significant time credits to allow for the year early supervision and a year in the RRC. It’s conceivable that they are returned to the BOP for a technical infraction, sanctioned to loss of a small part of the FTCs, but now are now no longer be eligible to apply any subsequent FTCs earned to early release or placement in the community. As BOP DHOs must sanction cases this happens fairly frequently where an inmate is returned to a federal facility for their hearing and discipline and currently return to a RRC. This section of the policy does not allow for return under FSA so only the 2nd Chance Review will allow them to return to a RRC or HC without the benefit of application of the FTCs. It may require further advocacy.
- If a person scores as a high or medium security level, and the person has less than three years on their sentences, they do not have an avenue to initiate a request based on their participation in programs. A vehicle does not exist to show three years or more clear conduct. (Note: this may have been the intent of the FSA; if a person scores as a High/Med, the person should serve at least 3 years of a sentence. This may require more advocacy.
- Pg 16 again uses the detainer language. It will be interesting to see if any more court cases come out of this part of the policy.
- The RDAP early release section contains a couple things that need to be cleared up. If the person is in FTC earn status and is also a 3621e, it’s possible that the FTC Projected Release date would come before the 3621e release date. The BOP is going to have to calculate both methods of release to determine which method would release the individual the earliest. This calculation may be somewhat difficult. The BOP does not require that a person complete RDAP to be eligible for the FTCs associated with RDAP. The agency does require completion for the 3621e date to apply. It requires a person participate in the program and complete it successfully. A person may earn the early release based on FTCs rather than the completion of 3621e.
The First Step Act FTC program will continue to face challenges over the next few years. Typically, several years will pass before the agency develops a sound policy. We should expect advocacy and litigation as we continue to see this program evolve. Our team at Prison Professors will continue working to bring awareness to the program, and to help stakeholders understand the importance of expanding policies that allow all people in prison, regardless of PATTERN Scores, to work toward earning higher levels of liberty, at sooner times.