Explainer: Forbes Article Highlights BOP’s FSA Time Credits Mess
If you’ve spent any time on How to Justice or Interrogating Justice over the past couple of years, you know how frustrating the BOP’s implementation of First Step Act (FSA) time credits has been. To begin, the BOP decided to wait until the very last moment to start applying FSA time credits to the sentences of federal prisoners. Then, after literally waiting years to do that, the BOP did it in a way that left federal prisoners and their loved ones clueless as to how many, if any, FSA time credits they would ever see. And, thanks to all but a handful of federal courts doing what the BOP asks in cases involving FSA time credit disputes, the BOP now has virtually unstoppable discretion when it comes to applying FSA time credits.
Has the BOP’s implementation of FSA time credits improved?
No. In fact, according to an article by Walter Pavlo for Forbes from last week, the BOP’s implementation is getting worse. Pavlo reports that the BOP has decided to use that virtually unstoppable discretion to significantly limit FSA time credits in a manner that, as Pavlo says, “clearly goes against the BOP’s own experts on FSA.”
Last Thursday, Pavlo explains, the BOP posted the following memorandum in federal prisons across the country:
“Eligible inmates will continue to earn FTC [Federal Time Credits] toward early release until they have accumulate 365 days OR are 18 months from their release date, whichever happens first [emphasis added by BOP]. At this point, the release date becomes fixed, and all additional FTCs are applied toward RRC/HC [Residential Reentry Centers / Home Confinement] placement.”
As Pavlo accurately notes in his article, “[t]he effect will be that those prisoners with short sentences will get no reduction in their sentence….” In other words, prisoners with shorter sentences — which usually means the sentences imposed for the least serious crimes — may never get to benefit from FSA time credits. Unelected BOP officials decided to disqualify those individuals even though elected lawmakers did no such thing.
Can courts order the BOP to apply FSA time credits anyway?
Yes. At least in theory, federal courts can order the BOP to apply the FSA time credits that a federal prisoner has earned. We’ve seen a couple of federal courts do that over the nearly four years since Congress passed and President Donald Trump signed the First Step Act into law in 2018.
Yet, in almost every case, federal courts usually don’t push back against the BOP. Sometimes federal courts’ unwillingness to help might be easy to explain. A common example of that is when a federal prisoner fails to exhaust his or her administrative remedies.
But, in other cases, federal courts are willing to go pretty far to adopt the BOP’s position. As Peter J. Tomasek wrote in an article for Interrogating Justice last week, some federal judges have went so far as to say that a law that states that “[t]ime credits … shall be applied toward time in … supervised release” does not allow the BOP to apply time credits toward time in supervised release.
The BOP asks Congress for more than $7 billion in taxpayer money every year. (When the BOP publishes the number, officials list it in millions, e.g., “$7,161.2 million,” to make it look better.) That’s a lot of money. They wouldn’t — but, because it’s our tax dollars, maybe “we wouldn’t” feels more accurate — have to spend as much if the BOP released prisoners sooner based on their accumulation of FSA time credits.