The Bureau of Prisons issued an unsigned Memorandum on October 14, 2022 to people who transitioned from federal prison to a halfway house. We share that Memorandum and, with help from our SMEs, we offer some analysis of what it says.
On October 14, 2022, the Bureau of Prisons issued another unsigned Memorandum on U.S. Department of Justice Letterhead. The Memo came from the Federal Bureau of Prisons’ Reentry Services Division.
This memorandum stated as follows:
Under the First Step Act of 2018 (FSA), eligible individuals in Bureau of Prisons (BOP) custody are able to earn and apply time credits toward time off their sentences and/or early placement in pre-release custody. Since January 2022, BOP has been calculating these credits using interim procedures. Recently, the agency moved to a more precise automated calculation, which led to some calculations changing which impacted some inmates’ community placement dates.
As of the issuance of this document, individuals already in community placements or within two months of a community placement who had received FSA time credit under the interim calculation, will not see a change in release date based on the automated calculation.
Additional information will be provided to BOP staff and individuals in custody regarding the automated calculation as it applies to those with more than two months until community placement.10/14/22 BOP Memo
Interpretation and Analysis of BOP Memorandums:
This 10/14/22 Memorandum shows us how much trouble the BOP has had in creating a uniform policy to award Earned Time Credits. On Saturday, I spoke with one of our subject-matter experts. He told me that he spoke with one of his former colleagues at the BOP to get clarification on the 10/14/22 Memorandum.
Apparently, with the new auto calculation of credits, some people who transferred to home confinement or to a halfway house got bad news. Staff members told them that they would have to return to prison. The new auto calculation indicated that staff members authorized their transfer to a halfway house too soon. Even people who received clemency got the bad news.
How does this happen?
Confusion has come because the First Step Act has made an enormous change in the BOP. Previously, the BOP did not put a lot of emphasis on helping people in prison transition to society early. It resisted the efforts people made to transition to society early. With the First Step Act, the agency has had to retool completely. To use an analogy that has become a cliché, it’s like building the plane while the plane is flying.
The 10/14/22 Memorandum clarified the mistake of the earlier communication that let people know that they may have to return to prison. The new Memo only went to people who had been assigned to an RRC. Basically, the Memorandum let them know that regardless of what changes the new auto calculation made, the BOP would not require people in an RRC to return prison, regardless of the auto calculation. If a person was in an RRC, or a person was within two months of release, the person’s release date would remain the same.
More time, more advocacy, and more litigation will take place before the Bureau of Prisons gets a policy together on how the agency will apply time credits. Even the name for time credits confuses people. In various government documents or memorandums we’ve seen authorities refer to the time credits as follows:
- Earned Time Credits (ETC)
- First Step Act Credits (FSA)
- Federal Time Credits (FTC)
For several years, the BOP used “interim procedures” to calculate the time credits.
In September, the BOP distributed an unsigned Memorandum to people in prison through the Trulincs computer system. The Trulincs message included a bullet point as follows:
- Eligible inmates will continue to earn FTCs toward early release until they have accumulated 365 days OR are 18 months from their release date, whichever happens first. At this point, the release date becomes fixed, and all additional FTCs are applied toward RRC/HC placement.
With continued advocacy, we will likely see challenges to the rules in months or years to come. These are the types of slow-moving reforms that I saw throughout the 9,500 days that I lived in federal prison. In time, I anticipate that the BOP will rescind that 18-month rule. We shall see.
I remain hopeful that, in time, people serving sentences in federal prison will receive the full benefit of the First Step Act, as Congress intended. But the agency will has more work to complete in putting together a coherent policy.