WASHINGTON, DC - APRIL 01: Matthew Charles, who was released from from federal prison after serving ... [+]
Four years ago, the House and Senate overwhelmingly passed the most comprehensive criminal reform act for federal inmates; the First Step Act (FSA). Signed into law in December 2018, it was touted as a monumental achievement by President Donald Trump’s administration and, in particular, the President’s son-in-law and senior advisor, Jared Kushner. However, the Bureau of Prisons (BOP) continues to struggle to implement the law that gives the opportunity for minimum and low security prisoners to earn credits toward earlier release. That struggle is leading prisoners to spend longer terms in prison than the law permits.
In January 2022, the Final Rule of FSA appeared in the Federal Register and it made clear that congress’s intention was to release thousands of people from prison if they earned the credits derived from meaningful programming work. While thousands have been released due to an interim and manual calculation, the automated system of calculating FSA credits has been mired in miscommunication and technical issues.
In a case in the District of Maryland (Sreedhar Potarazu v BOP, Case No.2-1334-GLR) one prisoner saw the delays coming in FSA implementation and asked U.S. District Judge George Levi Russell, III to assure that his credits were properly applied. So far, that has not happened and Potarazu remains in a Cumberland, Maryland federal prison camp waiting for either the BOP to implement an automated FSA calculation for him or have Judge Russell order the BOP to calculate Potarazu’s credits.
Potarazu, who is near the end of a 119 month federal prison term, filed a Writ of Habeas Corpus against FCI Cumberland, the Warden and BOP requesting the BOP calculate and immediately apply his FSA credits so that he can be released to a halfway house. Potarazu’s case is interesting because not only will he be receiving up to 365 days off of his sentence due to FSA credits, but he has also earned credits toward additional halfway house. The government recently responded to Potarazu stating the BOP “recommended a halfway house date of November 15, 2022 which included 386 days of Time Credits applied towards prerelease custody and 120 days of halfway house placement pursuant to the Second Chance Act.” This represents one of many prisoners who can be released with over a year of pre-release custody, something unheard of prior to the FSA.
The government has asked Potarazu’s case to be dismissed because of the pending halfway house placement but the case may have meaning for many others who are waiting to be released from prison. The US Attorneys Office (USAO), who responded to the complaint, are receiving their information from the BOP. In the response USAO stated that the BOP has complied with the timely application of FSA before going on to state that it has not. The USAO noted that “On January 12, 2022, the BOP established interim procedures to ensure timely implementation of the FSA final rule. Interim procedures were established to prioritize inmates eligible for immediate benefit in terms of release or pre-release community placement. The interim procedures remained in effect until August 31, 2022, at which time the BOP launched its auto-calculation application. This application fully automated the calculation of FSA Time Credits so that manual calculation of credit was no longer required. The system was expected to go live on September 6, 2022. However, there were some unexpected glitches. The auto-calculation process was implemented on September 30, 2022.” The BOP encountered yet more problems and it is now expected to have a new FSA calculation in January 2023, which per the BOP is “expected but not guaranteed.”
One point that was clarified in the USAO response was the statement about the elimination of the 18-month rule that limited the amount of FSA credits some prisoners could receive. Noting the release of the BOP’s program statement on FSA “... the BOP is implementing the policy changes that were made, including the removal of the 18-month requirement that was a hallmark of the auto-calculated system.” It was the first official notification of the existence of the rule, much less the removal of the rule.
However, prisoners are still receiving inconsistent information and there are no interim calculations being done for those prisoners who should be released today. I spoke to one prisoner in a halfway house who showed me paperwork that indicated that if his FSA credits were applied, he would have been released in September 2022, 3 months ago. However, he just arrived at a halfway house last week with an out date of October 2023. He is obviously anxiously awaiting the new calculation.
BOP, which is experiencing a record number of staff shortages, is still providing mixed messages on FSA eligibility and when the new calculator will be in place. As one case manager told me who wished to not be identified, “There is so much work that must go into the placement of an inmate on home confinement or halfway house. I don’t see how I’ll get caught up and people will certainly stay in institutions longer just waiting on paperwork.”
The BOP is trying to provide more information to staff about what is going on with FSA. The BOP’s website now has talking points for staff that were circulated to everyone in the Agency. In the upcoming weeks, prisoners will receive their new release dates from prison, just in time to ring in the new year.
Speaking to one former BOP executive, “One can only hope that the BOP can get the calculation right because people have now been waiting on an accurate answer for nearly a year.”
