Bureau Of Prisons Backtracking On First Step Act Law
By Walter Pavlo - Forbes
November 22, 2023
It has been five years since President Donald Trump signed the sweeping criminal justice regulation called the First Step Act (FSA). FSA allowed many federal inmates to earn credits to reduce their sentence or to transition to home confinement for a part of their sentence by participating in meaningful programming and activities.
FSA has been plagued by missteps by the Federal Bureau of Prisons (BOP). First the agency was caught off guard in January 2022 when the final rule on FSA was published in the Federal Register. It was only then that the BOP realized Congress’ intent of reducing the prison populations by pushing many low and minimum inmates to have get out of prison sooner and/or to put them in the community for a greater part of their sentence.
Prior to FSA, most federal inmates just earned 54 days per year of Good Conduct Time off their imposed sentence. However, FSA can cut a prison term by up to one year for many eligible inmates and can also result in many additional months of home confinement. During 2022, as the BOP scrambled to implement the program, many inmates did not receive any credits, resulting in thousands spending more time in prison than necessary. Now, just as the BOP has fixed its calculation algorithm to correct those past issues, it is now shorting inmates on time in the community and stating it is because of limits in capacity at its Reentry Centers or halfway houses.
In January 2022, Attorney General Merrick B. Garland stated that “The First Step Act, a critical piece of bipartisan legislation, promised a path to an early return home for eligible incarcerated people who invest their time and energy in programs that reduce recidivism ... the Department of Justice is doing its part to honor this promise, and is pleased to implement this important [FSA] program.” However, almost two years since that promise, the BOP continues to find put their interpretation of the law such that it results in prisoners staying in longer.
According to the FSA Annual Report issued in April 2023, the BOP has yet to realize any savings as a result of pushing more inmates out of prison and reducing the populations in prison by transferring inmates to halfway houses. This represents a huge failure by the agency that is struggling to fill positions of corrections officers and healthcare professionals, which routinely account for up to 25% vacancies at many institutions.
The BOP has been less than transparent in its implementation of the FSA. Many inmates have no idea when they will be transferred to home confinement or when they will be released from BOP custody. Problems with the BOP’s computer system in calculating the credits has been one problem but another is the BOP’s own interpretation of how to award the credits.
One inmate, Sreedhar Potarazu, is challenging the way the BOP calculates FSA credits for inmates and has sought clarification as to how these credits are posted to prisoner profiles. Potarazu filed a civil lawsuit in federal court in the District of Maryland stating that his credits were incorrectly calculated. In a recent response from the BOP, new information came to light that the BOP is not planning on using FSA to push more people out of prison. In fact, the agency blames its own capacity problems at its reentry centers as being part of the bottleneck.
BOP’s response to Potarazu in November highlighted the multiple interpretations and outright errors the BOP has had on FSA implementation. One new surprise in the BOP’s position is its latest interpretation which states regarding earned FSA credits, “The Bureau of Prisons shall designate the place of the prisoner’s imprisonment, and shall, subject to bed availability, the prisoner’s security designation ...,” This gave the BOP the ability to manage the populations at its Residential Reentry Centers (RRC), or halfway houses. These RRCs were supposed to be expanded and receive additional funding under the FSA to account for the increased number of inmates who would be serving the last part of their sentence at these halfway houses. However, pushback at the halfway houses has led to inmates serving a longer period of time at the institutions, which themselves are becoming more crowded. The result is that many inmates are interpreting the FSA law believing they should be leaving the institutions earlier than what their case managers are telling them.
With Potarazu, it was the halfway house, not FCI Cumberland where Potarazu was housed at the time, who determines when resources will be available for the inmate’s placement. As the government said in its answer to Potarazu, “... FCI Cumberland timely referred him [Potarazu] to a halfway house, but the halfway house did not respond for several months, notwithstanding the institution’s numerous follow-ups.” The BOP actually produced an affidavit from Potarazu’s case manager stating that indeed that he “submitted Petitioner’s [Potarazu] halfway house referral paperwork to the Residential Reentry Management (RRM) field office in Baltimore on October 27, 2022” requesting a halfway house date of November 15, 2022. The case manager admitted that it took several month to receive a halfway house date from the RRM, even after sending numerous follow-up emails. Finally, on January 31, 2023, the RRM gave a date for Potarazu of May 18, 2023.
That is simply not what the provisions in the FSA law state. The Final Rule states “The Act provides that ‘‘[t]ime credits earned . . . by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in prerelease custody or supervised release.’’ [Emphasis added]. The BOP has now added that this is subject to bed availability, which makes sense, but the BOP was tasked with expanding its residential reentry centers. The true cost savings, roughly half of the $120/day for a person in institutional housing, cannot be realized as long as there are prisoners in prisons who are not being moved out.
Chris Mills is currently in FPC Pensacola and is scheduled to be released from the BOP in January 2025, which reflects one year off of his sentence. However, Mills has also earned 460 days of FSA toward prerelease custody (home confinement), meaning that he was supposed to leave prison for home confinement in October 2023. In fact, under the Second Chance Act, he was also eligible for 180 days of home confinement .... he could have gone on April 30, 2023. Yet Mills was promised a date in January 2024 to home confinement because there was no room at the reentry centers. Had Mills been placed on home confinement, per what he earned under FSA and what he was eligible for under the Second Chance Act, he would have been home over 260 days than what the BOP is offering. At $60/day savings that is $15,600. If only Mills were the only one. This is a problem for thousands of prisoners who have no idea when they will be leaving prison and each day is a constant search for answers as to why.
Potarazu is scheduled to be released from the BOP in December and there is no real remedy for him to get the time back. However, his pursuing this case has helped shine a light on a BOP policy that is too often revealed in obscure case declarations rather than in a program statement for everyone to understand. A simple question by a prisoner, “When am I going home?” should not be difficult to answer and it should be a right for every prisoner to know when their debt is served.
The BOP has the ability to live up to the law and send more prisoners to home confinement if it had the will to do so. Right now, prisoners have few options to bring their case through the BOP’s administrative process because neither the prisoner, nor the staff are clear on the FSA rules or interpretation. Too often, prisoners find out their dates so late that the administrative process is moot since any remedy would come late from a process that could take months to resolve.
2024 should provide more clarity on FSA, but it will take more lawsuits to figure out the BOP’s position. Until then, prisoners are staying in prison longer than the law intended, costing taxpayers more money and diminishing hopes of many minimum security inmates who could become contributing members to society much sooner.