Earned Time Credits with the First Step Act

The First Step Act defines how time credits can be earned by inmates. The Bureau of Prisons has proposed regulations regarding the educational portion of the FIRST STEP Act. These regulations will affect how individuals are able to earn time credits for the evidence-based recidivism reduction classes, among other things.

Federal Regulations In General

Executive agencies write federal regulations to enforce the statutes passed by Congress. They have the force of law, and provide detailed instructions on how agencies intend to enforce laws.

The First Step Act became law in December 2018. The regulations display how the intent of the law will be enforced. The regulations are subject to interpretation and adjustments over time.

The Regulatory Changes

Click here to see the full text of the regulatory change.

The Proposed Regulations Explained

Program Description

The regulations codify the earned time credits taken from the First Step Act. The First Step Act indicates that an inmate who is in BOP Custody and completes an Evidence-Based Recidivism Reduction Program can earn time credits. If the inmate has a disqualifying prior conviction under 18 U.S.C. 3632(d)(4)(D), they may not be able to get credits. Even so, these individuals may be eligible for other types of relief.

The proposed regulations review who is an eligible inmate. The document indicates that a person can only receive these FSA credits while they are in a BOP facility and only after their term of imprisonment commences. These earned time credits cannot be earned when an inmate is on home confinement or in a halfway house assignment.

(c) Successful completion. (1) An eligible inmate must successfully complete an Evidence-Based Recidivism Reduction program or Productive Activity before the inmate may earn FSA Time Credits for that Evidence-Based Recidivism Reduction program or Productive Activity.

(2) The requirements to successfully complete an Evidence-Based Recidivism Reduction program or Productive Activity are defined by the Bureau of Prisons (Bureau) for each Evidence-Based Recidivism Reduction program or Productive Activity. The requirements to successfully complete an Evidence-Based Recidivism Reduction program or Productive Activity will be based on the specific elements of each Evidence-Based Recidivism Reduction program or Productive Activity, and may vary based on the curricula, duration, or the specific needs or requirements of either the Evidence-Based Recidivism Reduction program or Productive Activity or the inmate participating.

(d) Eligible inmates.
(1) Definition. An “eligible inmate” is any inmate who is sentenced under the U.S. Code and in the custody of the Bureau who is not serving a term of imprisonment for a conviction specified in 18 U.S.C. 3632(d)(4)(D). Only an “eligible inmate” is eligible to earn FSA Time Credits. An inmate who is in the custody of the Bureau, but is serving a term of imprisonment pursuant to only a conviction for an offense under the law of one of the fifty (50) states, the District of Columbia, Guam, Puerto Rico, the U.S. Virgin Islands, the Commonwealth of the Mariana Islands, American Samoa, or any other territory or possession of the United States is not an “eligible inmate.”

Proposed Changes to CFR § 523.41

Earned Time Credit Requires Course Completion

The regulations also indicate that an eligible inmate must successfully complete each Evidence-Based Recidivism Reduction Program before First Step Act time credits will be earned. This also applies to any Productive Activity assigned to the inmate. These credits are based on the individual's risk and needs assessment.

An eligible inmate who successfully completes an Evidence-Based Recidivism Reduction program or Productive Activity that is assigned to the inmate based on the inmate's risk and needs assessment may earn FSA Time Credits as follows:
(a) An eligible inmate must successfully complete each Evidence-Based Recidivism Reduction program or Productive Activity before the inmate may earn FSA Time Credits. FSA Time Credits will not be given for anything less than successful completion of each Evidence-Based Recidivism Reduction program or Productive Activity.

Proposed changes to § 523.42, Earning First Step Act Time Credits.

A "Day" is Eight Hours

Perhaps the most consequential portion of the regulations indicates how much time a person must serve in order to receive time credits. The regulations indicate that a person can receive ten days of FSA time credits for every “day” of participation. A “day” is ’one eight-hour-period.’

While the BOP indicates that they derived this from 18 U.S.C. 3632(d)(4)(A)(i), it is unclear from where the 8-hour explanation came.

Further, an incarcerated person can receive an additional five days of FSA time for every thirty “days” of participation in a successfully completed Evidence-Based Recidivism Program. A “day” is still eight hours.

(b) After an eligible inmate successfully completes an Evidence-Based Recidivism Reduction program or Productive Activity, the eligible inmate will be awarded ten days of FSA Time Credits for every thirty “days” of participation in a successfully completed Evidence-Based Recidivism Reduction program or Productive Activity. For purposes of earning FSA Time Credits, a “day” is defined as one eight-hour period of participation in an Evidence-Based Recidivism Reduction program or Productive Activity that an eligible inmate successfully completes.
(c) Low/Minimum recidivism risk. An eligible inmate will earn an additional five days of FSA Time Credits for every thirty “days” of participation in a Evidence-Based Recidivism Reduction program or Productive Activity that the eligible inmate successfully completes if the inmate:
(1) Is determined by the Bureau to be at a minimum or low risk for recidivating; and
(2) Has not increased his or her risk of recidivism over the most recent two consecutive risk and needs assessments conducted by the Bureau. For purposes of earning FSA Time Credits, a “day” is defined as one eight-hour period of participation in an Evidence-Based Recidivism Reduction program or Productive Activity that an eligible inmate successfully completes.

Proposed changes to § 523.42, Earning First Step Act Time Credits.

Inmate Discipline

The regulations indicate that a person can lose their FSA time credits through inmate discipline procedures. However, the person can earn the First Step Act time credits back and will be determined on a case-by-case basis. This would include a period of clear conduct or at least four consecutive risk assessments. These regulations also delineate when and how time credits can be taken away and how they can be reinstated.

(a) Inmates may lose earned FSA Time Credits for violation of prison rules, or requirements and/or rules of an Evidence-Based Recidivism Reduction program or Productive Activity. The procedures for loss of FSA Time Credits are those described in 28 CFR part 541.
(b) Inmates may seek review of the loss of earned FSA Time Credits through the Bureau's Administrative Remedy Program (28 CFR part 542).
(c) Inmates who have lost FSA Time Credits under this regulation may have part or all of the FSA Time Credits restored to them, on a case-by-case basis, after:
(1) Clear conduct for at least four consecutive risk and needs assessments; or
(2) In the case of a loss of FSA Time Credits due to a violation of the requirements and/or rules of an Evidence-Based Recidivism Reduction program or Productive Activity, after successful completion of an Evidence-Based Recidivism Reduction program or Productive Activity assigned based on the risk and needs assessment after the date of the rule or program violation.

Proposed changes to § 523.43 Loss of FSA Time Credits.

• Available Sanctions for Greatest Severity Level Prohibited Acts:  Forfeit up to 120 days of FSA Time Credits
• Available Sanctions for High Severity Level Prohibited Acts: Forfeit up to 60 days of FSA Time Credits
• Available Sanctions for Moderate Severity Level Prohibited Acts: Forfeit up to 30 days of FSA Time Credits.
• Available Sanctions for Low Severity Level Prohibited Acts: Forfeit up to 7 days of FSA Time Credits. (Only where the inmate is found to have committed a second violation of the same prohibited act within 6 months.)
• Forfeit up to 14 days of FSA Time Credits (only where the inmate is found to have committed a third violation of the same prohibited act within 6 months.)

The Current Status of the Regulations

These regulations published by the BOP on November 24, 2020.  The Comment Due Date ended January 25, 2021.  Comments can still be submitted via mail. Use the address: Rules Unit, Office of General Counsel, Bureau of Prisons, 320 First Street NW, Washington, DC 20534.  The Federal Register Website indicates that “Agencies may consider late-filed comments, if their decision-making schedule permits it."

The Federal Register website indicates that new issues may be raised. These issues can be something additional to the initial proposed ruling. Another possibility is that the Office of Information & Regulatory Affairs, along with the President, may review final rulings. This happens when important policy issues arise or economic effects are present.

A presidential level review is required before the final rule can be published in the Federal Register. 

Why the Wait for Regulations in the First Step Act?

We don't know why the BOP waited so long to put forth these guidelines and regulations. Submitted after the November election, there was a moderately clear expectation of a change in presidential leadership.

It is important to note that many persons in the Department of Justice are still appointees of the previous president. Merrick Garland, Biden's pick for attorney general has yet to be confirmed. Jeff Sessions was confirmed 20 days after his selection. The Bureau of Prisons is a function of the Justice Department and part of the executive branch. There is a possibility that these regulations will be reviewed, changed, or even withdrawn before becoming permanent.