The First Step Act (FSA), which among other things, provided federal prisoners a way to effectively lower their prison terms through participation in programs and productive activities. The law, signed by President Donald Trump in December 2018, meant that some prisoners could reduce their prison terms by up to one year. However, the rollout of the program has resulted in men and women remaining in prison well beyond what their release dates would be under FSA.
When the Federal Register published the final FSA rule on January 19, 2022, it also included comments from congressmen who expressed the need for clarity of the law. One such comment was “The Bureau does not have the resources to implement the FSA Time Credits program appropriately.” Over four months since that statement, it has proven to be true.
According to insiders at the BOP, prisoners and former executive staff with connections to the current state of the BOP as it relates to the FSA, there is “mass confusion at every institution,” and that the Designation and Sentence Computation Center, the entity ultimately responsible for calculating sentence duration, is backed up and the programming is not in place for FSA. The result is that thousands of prisoners are incarcerated beyond their legal release date.
The Federal Bureau of Prisons (BOP) was tasked with implementing the FSA. One component of that was measuring prisoner risk for both violence and general recidivism, known as a PATTERN score, and providing an incentive for prisoners to earn time off of their sentence. Prisoners with minimum and low PATTERN who also did not have a disqualifying offense (like sex offenses, terrorism, etc.) could participate in programs and productive activities to reduce their prison term. Unfortunately, it was not until the final rule was published in the Federal Register in January 2022 that the BOP realized that FSA’s implementation would be much different than envisioned. The FSA final rule caught many by surprise, including the BOP who is now playing catch-up. During January and February 2022, many prisoners were released from halfway houses and home confinement when it was determined that they had earned FSA credits toward an earlier transfer to supervised release (in essence a shorter sentence). They were let go but they all should have been let go much sooner.
BOP staff who have no official program statement to work from are spreading misinformation to prisoners. Many prisoners are being told that they do not qualify for FSA credits for a variety of reasons, many those reasons are just not true. As a result, prisoners are not only confused but have no place to go to get clarification. Now, some are going to Court.
Douglas Dyer entered prison January 29, 2017 to serve a 60 months prison term for a non-violent crime. Having numerous health concerns and 62 years old, Dyer transitioned to home confinement under the CARES Act in June 2020 where he was to serve the remainder of his sentence. However, Dyer was concerned that his sentence, even on home confinement, was not being reduced by FSA credits, which can also be earned while in home confinement. He filed a habeas petition in Eastern District of Tennessee (Case No 1:21-cv-00299) on May 14, 2021 claiming that the FSA earned-time credits he had accrued entitled him to an earlier release from prison. The Court dismissed that petition because of Dyer’s failure to exhaust his administrative remedies, an internal and despairingly slow process within the BOP for inmates to seek relief. Dyer went back through the BOP administrative remedy process and, to nobody’s shock, his FSA credits were denied. Dyer filed again in December 2021 and 6 months later, in May 2022, a judge agreed. However, by that time, Dyer had already been released from prison as a result of the final rule. U.S. District Judge Curtis L. Collier issued an order that Dyer get 459 days reduced from his supervised release term.
However, there are men and women in prison who are languishing because the BOP has not implemented a calculation to timely release prisoners who have earned FSA credits. Alexander Ohiro is currently serving a 48 month prison term at the federal prison camp in Florence, CO. Ohiro is due to be released on November 7, 2022 but he is also due FSA credits, he claims 195 days, which would make his revised release date February 9, 2022 … over 3 months ago. Today (May 30, 2022), Ohiro is still in BOP custody in Florence awaiting a decision by Senior U.S. District Court Judge Lewis T. Babcock (District of Colorado, Case No: 1:22-cv-00950). Judge Babcock has yet to rule and has asked Ohiro to pay $5.00 filing fee before the case can move forward. By the time the judge rules, Ohiro should have been out months ago and the fault is not with Judge Babcock, it is clearly with the BOP.
Ohiro is not only suffering by being imprisoned longer than the law states, but he is also being threatened by his own unit manager at the prison. According to Ohiro’s filing, “Ms. Avalos, the Unit Manager for Florence FPC, berated me for filing this Application, told me that the application would fail and not do me any good, and not only threatened to take away my approved halfway house time, but she threatened to throw me in the segregated housing unit (”SHU”)” … something usually reserved for disciplinary infractions. Stories like this are common in federal prison camps across the country.
Senator Martin Heinrich (Democrat, NM) received a letter from one of his state constituents who is also housed in the camp at Florence, CO. Neil Duda, a prisoner at Florence camp, is set to be released in August 2023 but believes he is due FSA credits that could get him out this year. However, his release date is still listed as August 4, 2023 and Senator Heinrich encouraged Duda to file an administrative remedy with the BOP to get the credits, a process that could take months before it eventually is eligible to be in the federal court system. Those inmates who are hurt the most by actions like this are the indigent which make up 90% of all inmates in federal prison.
Congressman Hakeem Jeffries’ comments regarding the final rule were for the BOP to broadly interpret FSA to allow the most amount of inmates to participate in the programs that would lead to sooner release dates. Jeffries stated that the BOP’s interpretation for awarding credits did not “appear to be a good faith attempt to honor congressional intent.” The BOP responded in the final comments that it too agreed with Jeffries and adopted a number of broader interpretations of giving FSA credits “to ensure it furthers Congressional intent of the statute, the Bureau hopes to increase the amount of FSA Time Credits that may be awarded to eligible inmates.” Those words ring hollow.
Inmates who are eligible to earn FSA credits to reduce their sentence are asking that the BOP apply the credits so that they can go home. The law involves fairly simple math; prisoners with certain low and minimum PATTERN scores earn 10 days off for every 30 days of programming. If, after their second PATTERN assessment, they maintain a low or minimum rating, the prisoner can earn an additional 5 days (for a total of 15) for every 30 days of programming. As a result, prisoners can earn up to a year off of their sentence and many more days earned toward prerelease custody (halfway house and home confinement). However, the BOP may be months away from having a compliant computer assessment tool and meanwhile prisoners stay behind bars, clearly not honoring what Congress intended.
The BOP stated that it intends to transfer eligible inmates who satisfy the criteria of the FSA to supervised release to the extent practicable, rather than to prerelease custody. Yet the BOP’s “discretion”, something too often used by the agency to mask the malice it has toward those incarcerated, is being abused as it continues to improperly and knowingly incarcerate inmates beyond what should be their release date.
It is not about compassion, it is about following the law and the BOP is wrongly holding thousands of inmates in prison who could otherwise be home. It is not only a violation of law but it is counter to the great measures congress went to in an effort to “right” some of the criminal law that incarcerate too many people for too long.