Getting The BOP To Apply FSA Time Credits: From A Lawyer

After months of waiting, the Department of Justice (DOJ) announced that the Bureau of Prisons (BOP) started applying First Step Act (FSA) time credits last week. According to a new BOP rule, the BOP plans to count all of the FSA time credits people have earned all the way back to Dec. 21, 2018, when the FSA became law.

For some, the good news impacted them fast. Right away, the BOP moved some people to home confinement or a residential reentry center. And some people even got released. But many others were left waiting. Even now, almost a week later, many still have no idea if or when the BOP will apply the FSA credits they’ve earned.

If you’re one of those people who are still waiting, here are some thoughts from a lawyer on what to expect next…

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When will the BOP apply your FSA time credits?

It depends on how many FSA time credits you’ve earned. It also depends on how close your expected release date is. If you’ve earned enough FSA time credits to be eligible for release right now or in the next month, you should hear from the BOP very soon. Check the BOP’s “Inmate Locator” now to see if your release date has changed.

But keep in mind that this is based on the BOP’s calculation of your time credits, not yours. You may believe you have earned several months’ worth of FSA time credits, but the BOP may only apply a few days’ worth of credits. You can check with BOP staff to see if they will tell you how many the BOP has calculated.

If your release date is a few months away, you may have to wait a while. The BOP has stated it will apply time credits to those who are close to release first. It’s hard to predict how long it may take for the BOP to calculate everyone’s earned time credits. It could be several months.

What happens if the BOP doesn’t apply them or applies the wrong amount?

It’s possible that you will believe you have earned more FSA time credits than the BOP applies. Under the FSA, you can only earn time credits for programs and activities that the BOP says address your risks and needs as determined by PATTERN. Therefore, the fact that you completed programs and activities doesn’t mean you’ll automatically get time credits for them.

But if the BOP assigned you to programs and activities based on your PATTERN scores and you completed those, you deserve FSA time credits for them. If you have documentation from those programs and activities, there may be ways for you to get the BOP to recalculate your FSA time credits.

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How can you challenge the BOP’s FSA time credits decision?

When all is said and done, there are likely to be a lot of people in BOP custody who don’t get the FSA time credits they believe they’ve earned. There are ways to challenge the BOP’s FSA time credits decisions. Like most other problems, you’ll start with your prison’s grievance process and go from there.

Unfortunately, courts are already trying to avoid getting involved. In several different cases, federal courts have specifically said they will accept the BOP’s calculation of FSA time credits — even if that calculation is wrong. It’s possible some courts won’t do that. But these decisions make it very important that you do your best to work with BOP staff first. That may be your best chance to get out sooner.