When people started earning First Step Act (FSA) Time Credits in Bureau of Prisons (BOP) custody, they believed they were earning a lot. In some cases, we’ve seen people claiming that they have earned thousands of days off their sentence by participating in evidence-based recidivism reduction programming or productive activities. But we’ve also seen the BOP cap them at 12 months or, in some cases, even less than that. So, how many FSA Time Credits can someone earn? It depends.
How many FSA Time Credits can you earn in prison?
Incarcerated people can earn ten days of time credits for every 30 days they successfully participate in evidence-based recidivism reduction programming or productive activities in a BOP facility. And if they maintain a minimum or low risk of recidivating over two consecutive PATTERN assessments, they can earn an additional five days of time credits, allowing them to earn a total amount of 15 every 30 days. Put simply, as long as you’re participating in programs and activities, you can earn time credits pretty fast.
As of now, however, the BOP and federal courts are limiting people to one year’s worth of FSA Time Credits off of time in prison. This is based on 18 U.S.C. § 3624(g)(3). That statute states as follows: “If the sentencing court included as a part of the prisoner’s sentence a requirement that the prisoner be placed on a term of supervised release after imprisonment … the Director of the Bureau of Prisons may transfer the prisoner to begin any such term of supervised release an earlier date, not to exceed 12 months….”
How many FSA Time Credits can you earn after that?
What’s fascinating about the BOP’s and courts’ approach in this regard is that it doesn’t stop you from earning more FSA Time Credits to reduce the amount of time you spend in home confinement or on supervised release. This means that even if you can’t use more than 365 days’ worth of FSA Time Credits to reduce your time in a BOP facility, you should still be able to use any extra Time Credits to reduce your time in home confinement or on supervised release.
U.S. District Judge Lee H. Rosenthal, a federal judge in Texas, recently explained how this works in a case called Burruss v. Hawkins. In that case, Judge Rosenthal refused to apply 525 days’ worth of FSA Time Credits to a prison term. But he agreed that 160 days’ worth of those Time Credits (525 – 365 = 160) would apply to the prisoner’s time on home confinement or supervised released: “The remainder of her credits will be applied to her time in pre-release custody or on supervised release.”
Unfortunately, not all federal judges have agreed with this understanding. For example, U.S. District Court Judge Robert N. Scola, Jr., a federal judge in Florida, said the exact opposite was true in a case called Harrison v. Federal Bureau of Prisons. “Based on the plain text of [18 U.S.C. § 3624(g)(3)], FSA credits cannot be used to shorten a term of supervised release,” he explained. “Rather, the credits can only be used to allow early transfer to supervised release.” To put it bluntly, it’s literally a coin flip in court right now.
Will we ever get a definitive answer to these questions?
We don’t know if we’ll ever get answers to these questions or not. Some judges rule that FSA Time Credits can only apply to time in prison. Others rule that application of those credits is capped at one year but the remainder of them can be applied to time on supervised release. And, when it comes to home confinement, we’ve heard a variety of different things. Some BOP officials and judges said FSA Time Credits apply. Others say the exact opposite. Right now, this area of law is simply a mess.
The Takeaway:
Over the past four-plus years since President Donald Trump signed the First Step Act into law, we’ve had more questions than answers when it comes to FSA Time Credits. Unfortunately, we still have many of those questions. Right now, there are thousands of people in BOP facilities, on home confinement and on supervised release who don’t know if, much less when, they will receive the FSA Time Credits they believe they’ve earned. Without consistent court decisions, we may never get answers to these questions.
