Thousands Of Federal Prisoners Released Under First Step Act But Problems Remain

On Monday, January 9, 2022 thousands of federal inmates were informed that their federal prison term was over as a result of the Federal Bureau of Prisons (BOP) calculating First Step Act (FSA) credits. However, most all of those released from prison should have been released sooner but glitches in the way that the credits were calculated have plagued the BOP since August when it attempted to roll out the first calculation. The law was signed by President Donald Trump in December 2018, over 4 years ago and real progress has been made under newly appointed BOP Director Colette Peters.

The Peters and the BOP has much to celebrate in rolling out this new calculation. Rabbi Moshe Margaretten, whose organization Tzedek, was instrumental in drafting the FSA tweeted, “Today thousands in federal prisons and community release got the good news that they’ve at last received the credits they earned under the #FirstStepAct - one of the final implementation issues we have long been advocating for!” Those who left should have been released weeks or months ago but the BOP has faced challenges trying to implement a calculation.

The BOP was caught off guard in January 2021 when the FSA Final Rule was published in the Federal Register. When that rule was published it stated that prisoners could actually earn credits to reduce their sentence by up to a year and could earn more pre-release custody (halfway house and home confinement) by participation in certain programs while incarcerated. In the BOP’s earlier interpretation it was noted that the BOP had failed to implement the program as Congress had intended. The BOP then scrambled to develop a tool to, at first, manually calculate FSA credits that had been earned since the law was signed in December 2018. The result in 2021, just like what is being seen today, was that thousands of prisoners were released from halfway houses, home confinement and prison. Other prisoners took their cases to federal court to ask for their credits and some received them, earning their freedom. Many prisoners have now waited months for a more permanent auto-calculation.

The auto-calculator was supposed to be implemented by August 30, 2022, but that process also was delayed until October and then there were still more problems. First, the BOP had arbitrarily made a finding that all FSA credits earned that could be applied to reducing the sentence was suspended when the prisoner reached 18 months from release. It had the effect not following the intent of the law, something the Senators Dick Durbin and Chuck Grassley brought to the BOP’s attention. That 18-month rule has since been dropped with the new calculation but other bugs still exist, no doubt because it would have likely failed in federal court. Other miscalculations were revealed when the BOP admitted that it had failed to ask many prisoners to take a needs assessment survey, a hallmark of the program.

While some prisoners rejoined their family and started their term of supervised release (something that is a requirement of FSA), many are now perplexed that their release dates do not reflect their own calculation. The basic calculation is not difficult but the BOP’s interpretation seems to be a moving target. Eligible prisoners can earn 10 days of FSA credit for every 30 days of taking needs-based classes or participating in productive activities. If the prisoner is determined to be a minimum or low risk of recidivism (measured by the BOP’s PATTERN score assessment), then they can earn an additional 5 days of FSA for a total of 15 days.

Elation turned to depression when prisoner Leslie Dominic Musgrove, who is at a halfway house in Morgantown, WV, was informed that he would be released a year later than he was expecting. Musgrove had participated in the Residential Drug Abuse Program (RDAP) at a federal prison camp in Loretto, PA. Upon entering the program in the fall of 2021, he was given 1 year off of his sentence, a provisional date based upon his successful participation in the program. The RDAP has the additional benefit of being a program that also awards FSA credits and Musgrove had also participated in other programs since FSA’s being signed into law in 2018. According to the FSA Final Rule, RDAP credits are to be applied first then the credits for FSA, which could mean up to 2 years off of a sentence. On Monday, Musgrove initially received word that all of his FSA credits were received but that his RDAP credits were being re-assessed and, for the moment, completely taken away.

Musgrove’s current situation dates back to the confusion of the FSA’s implementation when manual credits determined who received credits and who did not. Musgrove, who graduated RDAP in May 2022, had been telling his case manager at Loretto that when his FSA credits hit, he should be going immediately to a halfway house. With no FSA credits being applied to Musgrove, he languished in prison until December 2022 and now finds himself with a release date of October 2023. On Tuesday (January 10, 2022), it was stated as being March 30, 2022 to now reflect only 8 months of RDAP credit or a program that stated he already had earned 12 months off of his sentence. While he is pleased that date has moved up, in reality he should have went home four months ago. Musgrove, who is African American, has been in prison for over a decade for a non-violent, first-time drug offense.

Other prisoners had family members go to BOP.gov to check their release dates. For some, all of the credits they had received under either the manual calculation or the incorrect auto-calculator from October 2022 were gone. Their release dates actually moved out months. Obviously this is yet another error that the BOP will have to work through as there is no rational reason for taking away the credits.

I spoke with a prisoner who told me that much of the confusion comes from the BOP not providing any breakdown of how the credits are derived. He asked to not be identified for fear of retribution and told me, “When I was in high school, it wasn’t enough to have the answer to a math problem, you had to show your work. When we get a number from the BOP about our FSA credits, it is just a number that nobody can explain.”

He is correct, few in the BOP have been trained on FSA and the training has changed with the Agencies evolution of how it interprets the law. The only remedy for prisoners is to challenge their calculation through a BOP administrative process, which could take months after meandering its way through the BOP bureaucracy. After that, prisoners can take their case to court in the form of a 2241 filing, Habeas Corpus, pleading that the BOP has incorrectly calculated their credits. In some of those cases, a BOP representative has provided declarations on how the calculations are derived. Those calculations provide the most transparency into how the BOP is implementing FSA credits and, in some cases, have resulted in a prisoner being released. Now, prisoners are being provided revised release dates, with no backup, and no meaningful way to challenge them. A federal court petition could take months, and by then, many of the problems will be resolved through the eventual release ... albeit later than expected.