If you’re in Bureau of Prisons (BOP) custody, you probably have questions about First Step Act (FSA) time credits. Why didn’t I get the right amount of time credits? When will I get more? If the BOP doesn’t give me the time credits I earned, can I sue them?

When people ask us questions like this, we almost always feel stuck giving them an honest but useless answer: It depends. Unfortunately, that’s the best we can do at this point. And if you don’t believe us, consider two cases that came out just four days apart.

United States v. Calabrese

First, on Feb. 13, 2023, U.S. District Judge Sara Lioi, a federal judge in Ohio, ruled “that FSA credits cannot be used to reduce a term of supervised release.” This decision arose out of a defendant’s motion asking Judge Lioi “to apply time credits that he earned pursuant to the First Step Act … to reduce his remaining term of supervised release.”

When the defendant, Anthony O. Calabrese, III, asked Judge Lioi to apply his FSA time credits to his term of supervised release, he had “approximate three months of supervised release” “remaining[.]” Between the fact that he had “earn[ed] him approximately eight months in time credits,” and the fact that “the government seem[ed] to concede” the same, Mr. Calabrese argued that his term of supervised release should end immediately.

Judge Lioi rejected that argument. According to Judge Lioi, the First Step Act “clearly provides that the time credits are to reduce the prisoner’s prison term.” But, she continued, “the FSA does not allow a prisoner to reduce the imposed length of supervised release.”

In fact, Judge Lioi explained, nothing in First Step Act supports the idea that FSA time credits can reduce terms of supervised release under any circumstances: “There is nothing to suggest that there will ever be any reduction to the court-imposed term of supervised release using FSA time credits—only that the term imposed would begin earlier if FSA time credits were applied to the prison term.”

United States v. Morgan

Four days later, on Feb. 17, 2023, U.S. District Judge Thomas L. Ludington, a federal judge in Michigan, ruled that a “[d]efendant’s FSA Time Credits should be applied to his time on supervised release if he is not approved for prerelease custody before his term of imprisonment ends.”

While the motion before Judge Ludington was one for compassionate release, the defendant’s argument was pretty much the same. Specifically, the defendant, Damon Desean Morgan, asked Judge Ludington to release him early based on “the BOP not placing him in home confinement despite earned time credits.”

Judge Ludington declined to grant Mr. Morgan’s petition based on Mr. Morgan’s failure to prove the existence of “extraordinary and compelling reasons” justifying his release. But, in doing so, he specifically said that Mr. Morgan’s request for “one-and-a-half years ‘of time credit’ under the First Step Act” applies to his term of supervised release.

“Defendant’s FSA Time Credits should be applied to his time on supervised release if he is not approved for prerelease custody before his term of imprisonment ends,” Judge Ludington wrote. “If Defendant’s FSA Time Credits are not applied to his supervised release term, then he may challenge the computation of his time credits under 18 U.S.C. § 2241.”

In fact, Judge Ludington explained, the First Step Act’s statutory language allows only this outcome. “[T]he text of the FSA is clear,” he wrote. “FSA credits apply to only ‘prerelease custody or supervised release,’ not to a term of imprisonment.”

The Takeaway:

How can you possibly square the decision in United States v. Calabrese with the decision in United States v. Morgan? The reality is that you can’t. In one case, a judge ruled “that FSA credits cannot be used to reduce a term of supervised release.” In the other, a judge ruled that a “[d]efendant’s FSA Time Credits should be applied to his time on supervised release….” These are completely opposite outcomes.

This is the current state of affairs when it comes to First Step Act time credits. If your case landed in front of Judge Lioi, those credits can only apply to time in prison. If you’re a few miles north and your case landed in front of Judge Ludington, they can only apply to time on home confinement or supervised release. Both judges are using the same law but reaching completely opposite outcomes.

Which outcome will the judge reach in your case? For now, the answer is kind of a toss-up. Your judge could agree with Judge Lioi, or your judge could agree with Judge Ludington. In other words, it’s basically a coin flip.