Bureau of Prisons Issues Responses to Comments, Updates FSA Rules
Earlier this week, we started receiving emails and calls from many of you indicating that there had been a change to the FSA Evidence Based Recidivism Reduction Program. This change included several inmates “going home early” because of purported retroactive application.
We engaged in research and found that on January 14 2022, the Federal Bureau of Prisons responded to several comments from the public regarding their proposed Evidence Based Recidivism Reduction Program Rules. In doing so they indicated that updated guidelines would be placed in the federal register.
The 51-page document that we found can be seen by your loved ones here.
EDIT Jan 19, 2022: We further note that Families Against Mandatory Minimums presented a summary that you can find here.
EDIT February 6, 2022: The Bureau of Prisons has also published a primer about the rule change.
Below, we will post a summary of the comments that were made and the BOP’s response.
Intro: The FIRST STEP Act and Evidence Based Recidivism Reduction Programs
As many of you know, the FIRST STEP Act (FSA) was signed into law in December of 2018. The FSA was composed of several provisions. As relevant here, the FSA also included the Evidence-Based Recidivism Reduction Program (EBRR). This program allowed individuals to take classes and engage in programming around needs as the Bureau of Prisons deemed necessary to reduce reoffending. Inmates who complete their EBRR may receive rewards, including time credited against their sentence.
Congress and the President signed the FSA giving broad indications about what the program should entail, who would be eligible and who would not be. The Bureau of Prisons issued regulations about how the program would be run in 2021. These were placed in the federal register for comment and review. The easiest way to think of the difference between the statute and the program statements is that the statute is “what the program would be” and the program statements are “how the program would be run.”
We previously reported on these regulatory changes in January of 2021. The comments were grouped into several categories and addressed in this new Janaury 2022 document. We will summarize the comments that were made and the proposed changes.
Summary of the BOP's Proposed Changes
The report starts with a summary of the proposed changes:
This rule codifies the Bureau of Prisons’ (Bureau) procedures regarding the earning and application of time credits as authorized by the First Step Act of 2018 (FSA), hereinafter referred to as “FSA Time Credits” or “Time Credits.” The FSA provides that eligible inmates earn FSA Time Credits toward prerelease custody or early transfer to supervised release for successfully completing approved Evidence-Based Recidivism Reduction (EBRR) Programs or Productive Activities (PAs) assigned to each inmate based on the inmate’s risk and needs assessment. Inmates eligible to apply Time Credits under the FSA include individuals sentenced under the U.S. Code. As required by the FSA, an inmate cannot earn FSA Time Credits if that inmate is serving a sentence for a disqualifying offense or has a disqualifying prior conviction. However, such inmates may still earn other benefits for successfully completing recidivism reduction programming, such as increased privileges (commissary, visiting, and telephone) for participation in EBRR Programs or PAs, as authorized by the Bureau.
Regarding the 8-Hour Day Rule
COMMENT: The Bureau’s definition of a “day” as one eight-hour-period of a successfully completed EBRR Program or PA is incorrect, unworkable, and/or contrary to congressional intent.
The FSA indicated that The FSA provides that “[a] prisoner shall earn 10 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.” 18 U.S.C. 3632(d)(4)(A)(i). But there is no explanation of what counts as a “day.” The BOP proposed rule defined a “day“ as “one eight-hour period of participation in an EBRR Program or PA that an eligible inmate successfully completes.”
Several commenters disagreed. The BOP cited Senators Whitehouse, Cornyn and Rep. Jeffries when they indicated that eight hours was not their intent and did not adequately incentivize program participation.
BOP’s Response: Citing the need for broad application of activities and the need to avoid administrative difficulties, the BOP has decided to adopt a more straightforward and administratively manageable rule.
“The final rule adopts a more straightforward and more administratively manageable approach that is consistent with the FSA’s goal of promoting successful participation in EBRR Programs and PAs. For every thirty-day period that an eligible inmate successfully participates in EBRR Programs or PAs recommended based on the inmate’s risk and needs assessment, the inmate will earn ten days of FSA Time Credits.”
The final rule does not take hours of the day into consideration.
Regarding Retroactive Application of the Time Credits
COMMENT: FSA Time Credits should be earned for programs successfully completed on or after December 21, 2018, the date of the enactment of the First Step Act, instead of January 15, 2020, as indicated in the proposed rule.
Several commenters disagreed. The BOP cited Senators Whitehouse, Cornyn and Rep. Jeffries when they indicated that the rule did not explain why individuals are ineligible to receive time credits for programs completed between December 21, 2018 and January 15, 2020. Further, the text of the FSA only said that credit could not be earned prior to 2018.
BOP’s response: The BOP amended this runal rule to allow inmates under the FIRST STEP Act to receive retroactive time credits and activities that they participated in starting on December 21, 2018.
Further, the BOP is going to exercise its discretion to award time to inmates that completed programming from December of 2018 to January 14 of 2020.
Regarding Disparities in the Application of the EBRR and Disqualification of Inmates
COMMENT: There are no safeguards in the risk and needs assessment system to prevent racial discrimination or racial disparities.
BOP’s Response: To counteract this the BOP will annually publish
“(1) for each disqualifying offense, data on how many individuals from each racial and/or ethnic group were ineligible to earn Time Credits;
(2) for each disqualifying prior federal conviction, data on how many individuals from each racial and/or ethnic group were ineligible to earn Time Credits;
(3) for all other disqualifying prior convictions, data on how many individuals from each racial and/or ethnic group were ineligible to earn Time Credits;
(4) data on how many individuals from each racial and/or ethnic group were eligible to earn Time Credits; and
(5) how many individuals from each racial and/or ethnic received risk and needs assessment score classifications of “high,” “medium,” “low,” and “minimum” based on their most recent assessment."
Regarding the BOP's Ability to Handle this Appropriately
COMMENT: The Bureau does not have the resources to implement the FSA Time Credits program appropriately.
BOP’s response: The BOP indicated what they have been doing in order to implement the FSA Time Credits Appropriately and indicated that future allotments will enhance the Bureau’s course offerings and bolster the BOP’s resources, allowing it to carry out the FSA time credits program.
Regarding Time Credits for Other Programming
COMMENT: FSA Time Credits should be awarded for participation in UNICOR, online or correspondence college courses, religious services, more time for RDAP, and other programs and activities.
BOP’s response: The BOP stated that future allotments will enhance the Bureau’s course offerings and bolster the BOP’s resources and allow them to offer more classes. But the BOP also pointed out that Unicor, RDAP, online or correspondence college courses and several faith based programs and activities were currently available as EBRR.
Regarding Receiving Time Credits for Participation vs. Completion
COMMENT: FSA Time Credits should be earned for successful participation, not only for successful completion.
BOP’s response: As previously stated, the BOP indicated that they were adopting a simpler model. “Under this model, each eligible inmate earns Time Credits while participating in recommended EBRR Programs and PAs. Time Credits for successful participation are awarded at the end of each thirty-day period.”
The BOP also stated that temporary interruptions unrelated to an inmate’s refusal to take programming or other violations would not affect the ability to earn time credits (such as a teacher’s illness).
Regarding Application of FSA EBRR Credits to Supervised Release
COMMENT: FSA Time Credits should be applied to an inmate’s transfer to supervised release (to shorten a term of imprisonment).
BOP’s response: The BOP noted that even under the FSA that time credits could only be applied to prerelease custody under the terms of 18 USC 3624(g) and that similar requirements existed under the FSA for time credits to be transferred to supervised release. “The Bureau assures commenters that FSA Time Credits will be applied to early transfer to supervised release, as authorized by the FSA in 18 U.S.C. 3632(d)(4)(C) and 18 U.S.C. 3624(g). See 2020 Annual Report at 39-44. The Bureau intends to adhere to the parameters of the FSA to permit application of Time Credits toward transfer to supervised release pending development of policy, in individual cases as appropriate.”
Regarding Receipt of Time Credits for Programming while in Home Confinement
COMMENT: Earning FSA Time Credits should continue in Residential Reentry Centers and/or while in home confinement.
BOP’s response: We agree, but this is going to be on a case by case basis.
Regarding Statutory Exclusion of Time Credits
COMMENT: All inmates should be eligible for FSA Time Credits without exclusions.
BOP’s response: No, the FSA explicitly says who cannot reap the benefits of the EBRR. see 18 U.S.C. 3632(d)(4)(D) (certain crimes), 18 U.S.C. 3632(d)(4)(E), (deportable persons). However, inmates who are ineligible for the EBRR program are eligible for other privileges such as increased commissary, visiting and telephone.
Regarding Forfeiture of Credits and Earning Back
COMMENT: Forfeiture penalties for earned Time Credits are too severe.
There were several comments that indicated that the BOP’s rules regarding inmate discipline as it relates to forfeiting earned time credits were too harsh.
BOP’s response: They agree and have made adjustments. “As stated in the proposed rule, FSA Time Credits may be lost through inmate discipline procedures described in 28 CFR part 541 only if an inmate violates the requirements or rules of an EBRR Program or PA.” Furthermore, “in light of the comments received, the Bureau alters the proposed forfeiture sanctions to more closely mirror the Good Conduct Time forfeiture sanctions, and accordingly decreases the amount of FSA Time Credits forfeiture sanctions for each prohibited act severity level offense by more than half.”
Furthermore, “Further, upon review, the Bureau agrees with commenters that it is inconsistent with the risk and needs assessment methodology to require clear conduct (behavior clear of inmate disciplinary infractions under 28 CFR part 541) for four consecutive assessments to permit restoration of forfeited Time Credits, and therefore alters the regulation to maintain consistency with the Department of Justice risk and needs assessment methodology – requiring clear conduct for two consecutive assessments (one year) as a condition of restoring forfeited Time Credits.”
Regarding Application of this Statute to District of DC Offenders
COMMENT: The FSA should be applicable to D.C. Code Offenders.
BOP’s response: They’re going to circle back to this one.
The proposed changes will come out in a separate email later this week so please stay tuned. Some of you have already received your time reduction. Some of you have not. To our knowledge, the BOP is going to roll this out little bit by little bit. Because of that, we can’t say when individual people will receive any time off.
I am sure that there are many questions about this. While we don’t have the ability to answer individual questions over email, we can answer general questions in future editions of the newsletter, as far as we know them.