Bureau Of Prisons Director Colette Peters Issues Clear Guidance On First Step Act

BOP Director Colette Peters took a huge step in making her mark on the Federal Bureau of Prisons. Since assuming her role in August 2022, Peters, who came from the Oregon Department of Corrections, was tasked with leading an agency with many challenges. One of those was implementation of the First Step Act (FSA), which has been plagued by problems since being signed into law in December 2018.

One of the key features of FSA was the ability of prisoners to participate in programs and productive activities in order to earn up to a year off of their sentence and additional time in prerelease custody (halfway house and home confinement). However, federal prisoners have been confused over how the FSA would be implemented and their respective case managers in the BOP had few answers for them. Today, under Peters’ leadership, the BOP issued a program statement that clarifies some of the confusion over FSA.

The BOP issued a statement along with the policy today, nearly 10 months after the Federal Register published its Final Rule on FSA. Two primary issues that were of concern was the accuracy of the auto-calculator that went into place in October 2022 and a rule that froze FSA credits within 18 months of release. Both of those have been clarified and many federal prisoners will see a benefit in the comings days and weeks.

First, inmates will soon be able to see all potential Federal Time Credits (FTC) they may earn over the course of their sentence at their first Unit Team meeting. This means that the FSA credits will be a forward looking calculation for Minimum and Low security inmates who are eligible for FSA, much like the Good Conduct Time credit, with an estimated out date. The BOP clarified, “This number is an estimate; however, credits may change depending on whether the inmate successfully participates in programming. Second, inmates will be able to earn credit while in administrative detention, such as protective custody or quarantine, if they continue participating in available programming opportunities provided to them. Finally, inmates will be able to continue earning credit while in the community, so long as they continue to successfully comply with all the rules and procedures of pre-release custody.” This corrects a controversial BOP interpretation of FSA that would have led to thousands of prisoners staying in institutions for many additional months. This change also reflects the intentions of Congress when they passed FSA.

There was also considerable confusion over a survey that prisoners were supposed take upon entering prison. The survey was supposed to identify programming needs and, subsequently, an outline of the classes the prisoner would take to earn FSA credits. Many were not aware of the importance of the survey or were simply unaware of it, so many prisoners were listed as not compliant and not receiving FSA credits. Most prisoners only found out the importance of the survey once they received their FSA credits.

The BOP stated, “The Bureau used the January 2022 publication of Federal Regulations on the First Step Act time credits to manually calculate FTCs and, more recently, implemented automated calculation software. With the automation, some inmates noticed their time credit balance decreased due to incomplete needs assessments and/or declined programs. This policy includes a grace period, available until December 31, 2022, for inmates who have not completed all needs assessments or who have declined programs to try to address these issues. Beginning January 1, 2023, any incomplete needs assessments or any declined to participate codes will lead to the inmate not earning FTCs in accordance with the federal regulations.”

The issuance of this program statement and Peters’ leadership is a significant one for both prisoners and staff who have struggled since January to understand the BOP’s position on these FSA credits.