After months and months of waiting, the Bureau of Prisons (BOP) finally started calculating First Step Act (FSA) time credits earlier this year. For some, the benefits came quick and easy. The BOP calculated their FSA time credits and immediately moved them to a halfway house or home confinement. For others, the benefits took a while and didn’t come close to meeting expectations. So, what do you do if the BOP did not calculate your FSA time credits correctly? For now, the answer to that question isn’t clear.
How should the BOP calculate FSA time credits?
The BOP should calculate FSA time credits in a pretty straightforward way. For every 30 days of participation in evidence-based recidivism reduction programming or productive activities, you should earn at least 10 days in time credits (assuming you qualify for FSA time credits in the first place). For those in BOP custody who maintain a “low” or “minimum” risk of recidivism over the course of two assessments in a row, it’s even better. You can earn 15 days in time credits rather than 10.
Originally, the BOP’s approach to counting days was a disaster. The BOP was going to treat eight hours of participation as one day. As a result, it would have taken months (sometimes even years) to earn just a few days in time credits. And it also would have turned the jobs for BOP staff into math-filled messes. But, in January, the BOP changed course. As of now, the BOP will treat any day you participated in qualifying programs or activities as a day for purposes of FSA time credits.
The BOP’s new rule was also significant because the Department of Justice (DOJ) ordered the BOP to go all the way back to December 2018 when former President Donald Trump signed the FSA into law to count time credits. That’s why it was so significant when the BOP started counting time credits in January 2022. You received (or should have received) two years’ worth of time credits. Unfortunately, for many, that’s not what happened.
What are your options if your FSA time credits aren’t calculated correctly?
Between How to Justice and Interrogating Justice, we’ve heard from dozens of people with loved ones in a BOP facility who believe their FSA time credits were not calculated correctly. For some, the BOP has applied some FSA time credits but not enough. For others, the BOP still hasn’t apply any at all. Either way, these incarcerated people and their friends and family are left wondering what they can do to get the FSA time credits they’ve earned. As of now, the answer still isn’t clear.
Of course, like most things in prison, you could file a grievance and work your way through the BOP’s Administrative Remedy Program. If you have a loved one in prison, you already know the chances of success using this method are low. You could also file a petition for a writ of habeas corpus in federal court. But courts have been very reluctant to say that the BOP has not calculated FSA time credits correctly. So, again, your chances of success are low. Finally, you could informally ask BOP staff for help. While the chances of success with this method are low too, politely asking might be your best option.
Before you pursue these options, though, you need to understand what counts and what doesn’t count for purposes of FSA time credits. The fact that you participated in a program or activity doesn’t automatically mean you get time credits. BOP staff must have assigned you to the program or activity to address an FSA risk or need. So, if you happened to have a prison job for the past three years, you don’t automatically get FSA time credits for it. Understanding this distinction will make a huge difference.
Nevertheless, even if you’re 100% sure your calculation is correct, you need to know that help will be hard to find. According to one individual who had to wait several weeks for his FSA time credits to be applied, most BOP staff are just telling people to call the BOP’s Grand Prairie Office Complex with FSA questions. “[H]alfway houses are directing prisoners to call Grand Prairie (BOP headquarters) with FSA questions,” he said. “Grand Prairie never picks up the phone and is a waste of time.”
If the BOP hasn’t calculated your FSA time credits correctly, you have some options. You can file a lawsuit, file a grievance or politely ask for help. Unfortunately, none of these options have guaranteed success. As of now, low-level BOP employees have a lot of power when it comes to FSA time credits. Some will work hard to get you the credits you’ve earned. Others won’t bother trying at all. As time goes on, there should be more helpful information on this topic.