What Does Today's Big FSA Time Credits News Mean?

In a press release issued this morning, the Department of Justice (DOJ) announced a new Bureau of Prisons (BOP) rule that applies to all First Step Act (FSA) Time Credits. The rule has several parts, and it comes just days before the long-awaited Jan. 15, 2022 deadline coming up this Saturday. But it’s big news.

When will the BOP start applying FSA Time Credits?

The first problem that the BOP’s new rule solves deals with when the BOP will start applying FSA Time Credits. The answer to that question is now. According to the DOJ, the BOP “has begun transferring eligible inmates out of BOP facilities and into either a supervised release program or into Residential Reentry Centers (RRCs) or home confinement (HC).”

For months, the BOP and DOJ have indicated that they would wait until Jan. 15, 2022, to begin applying FSA Time Credits. With that deadline just 48 hours away, it appears that the BOP and DOJ already started. While it’s fair to wish they would have started sooner, this is still good news.

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When will the BOP go back to when applying FSA Time Credits?

The second problem that the BOP’s new rule solves deals with how far back the BOP will go when applying FSA Time Credits. Originally, it appeared that BOP officials might not apply any earned before Jan. 15, 2022, at all. More recently, however, the BOP’s FAQ Page said that time credits earned after Jan. 15, 2020, would count.

Now, the BOP has promised to count all FSA Time Credits earned since Dec. 21, 2018, the day the FSA became law. This is great news and gives some people in BOP custody credit for the programs and activities they completed for more than a year before the Jan. 15, 2020 start date on the BOP’s FAQ Page.

It’s important to point out that applying these FSA Time Credits earned before Jan. 15, 2020, won’t be easy. The BOP admits that its record-keeping of those programs and activities isn’t great. But the BOP has agreed to count credits going back to 2018 and will use prisoners’ calculations as part of that process.

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How will the BOP count FSA Time Credits?

Another problem that the BOP’s new rule solves deals with how the agency calculates “days” under the First Step Act. Originally, the BOP wanted to define a “day” of programs and activities as eight hours. Anyone who has been in a BOP facility knows how hard it is to get eight hours of programming everyday. (It’s impossible.) And, with the BOP often disagreeing about whether work counts, the eight-hour-a-day rule was a real problem.

Now, however, the BOP will county any day that you participated in a program or activity. And they’ll count it regardless of how long that program or activity was. “Under this model,” the BOP explains, “each eligible inmate earns Time Credits while participating in recommended EBRR Programs and PAs.”

Even better, the BOP applies Time Credits at the end of every 30-day period, not at the end of every program or activity. This means that prisoners should see their FSA requirements applied every month. This will be true even if they haven’t completed a program or activity during that month.

The Takeaway:

Today’s FSA Time Credits news is a big deal. The BOP has botched the implementation of the First Step Act over the past three years. But this new rule fixes some of those problems. That’s why it’s a big deal. But it only fixes those problems on paper. Whether it fixes those problems in reality remains to be seen.