FSA – ETC Restrictions
BOP DELIVERS NEW EARNED-TIME CREDIT RESTRICTIONS – UPDATE FOR SEPTEMBER 14, 2022
Legal Information Services Associates, LLC (LISA)
THE GOOD – THE BAD – and – THE UGLY
THE GOOD – the memo,
ETCs will be applied first to reduce sentence length, and second to more halfway houses and home confinement.
THE BAD – the memo,
– the BOP memorandum takes that away from prisoners by creating an arbitrary 18-month time until release cut-off for receiving FSAs to reduce the sentence.
– unfair, arbitrary, and beyond the intent that Congress had when it passed the law.
THE UGLY– the memo,
As Unit Teams (over 1000) in individual facilities are unschooled in the FSA and apparently error-prone, this appears headed towards APA challenges.
Forbes, Bureau of Prisons’ Interpretation of First Step Act Will Leave Thousands of Inmates Incarcerated (September 9, 2022)
BOP, Memo on Implementation of Auto-Calculation (September 8, 2022)
Declaration, ECF 10-1, Marier v. Bergami, Case No 21C50236 (ND Ill, Aug 9, 2022)
– Thomas L. Root
May 30, 2022, Forbes: ‘First Step Act Inaction Keeps Federal Inmates In Prison’
BOP, Initial Review of the SPARC-13 Needs Assessment System (Mar 2022)
11/22/2021, BOP Failed To Apply First Step Act Earned Time Credits to 60,000 Inmates(FD.Org); Management Advisory Memorandum 22-07, Department of Justice, Office of the Inspector General (Nov. 15, 2021)FD.Org
These programs are focused on recidivism reduction programs, and part of the process is that an individual must participate in FSA programs recommended by BOP staff to be recognized as part of their risk and needs assessment requirements in order to be accepted for earned time credit.
“To earn FSA Time Credits – these four conditions must be met,” Assistant U.S. Attorney Alison J. Ramsdell(.Org)
- The program must be an EBRR programming or PA productive activity,
- The inmate must be assigned by Bureau staff to the EBRR programming or PA productive activity based on his criminogenic needs,
- The inmate must successfully complete the EBRR programming or PA, productive activity,
- The EBRR programming or PA, productive activity must be completed on or after January 15, 2020.
I) Early Release: Minimum and Low-Risk Inmates
- Allows more time in a halfway house or home confinement at the end of a sentence.
- Eligible inmates can earn 10 to 15 days of EARNED TIME credits for every 30 days of successful participation in EBRR and PA Activities. Jan 13, 2022 [BOP.gov]
You may also receive five (5) additional days of time credit for every 30 days of successful participation in EBRR/PA Programs if,
- You have not increased the risk of recidivism over their last two assessments.
- Can apply your earned credits to pre-release custody or supervised release if you have the warden’s approval and you,
- § do not pose a danger to society.
- § have made a good faith effort, and a 30% lower risk of recidivism.
- § are unlikely to recidivate.
A Person is eligible for transfer to supervised release if,
- § You’ve met the standards above,
- § Supervised release is already part of their sentence as ordered by the court,
- § Are within 12 months of the end of their sentence, and either
- do not pose a danger to society.
- have made a good faith effort to lower their risk of recidivism, and
- are unlikely to recidivate.
II) Alternative Benefits: Medium and High-Risk Inmates
Incentives for completing EBRR and PA Programs
- They have to petition to redeem the Earn Time Credits (ETC) they earn, per the approval of the Warden
- The determination that they are not likely to re-offend, or
- They’re Not a Public Safety Threat.
Otherwise, they would be considered for alternative incentives
- Up to 510 phone minutes per month (which prisoners must pay for) or,
- If available, video conferencing privileges, for up to 30 minutes per day.
Or the warden may
- Add additional time for visits.
- Add additional time using the BOP’s email system (which prisoners must pay for).
- Transfer to a prison closer to the person’s home, if the warden approves.
- Increased commissary spending limits and product offerings; (which prisoners must pay for).
- Consideration for transfer to preferred housing units.
Those at Medium and/or High-Risk Levels should be able to move to a:
- Low or Minimum risk by reducing their “Dynamic” Factors.
“Static” factors are fixed,
Age at first conviction
If the Current offense was violent
If it was a Sex offense conviction
Criminal history score
History of violence
History of escapes
Was Voluntary surrender an option?
“Dynamic” factors can change over the course of a person’s incarceration.
Age at time of assessment? (the older we get, the less we argue, from the author…)
Infraction convictions (any)
Infraction convictions (serious and violent)
Number of programs completed (how many)
Number of technical or vocational courses completed (how many)
Drug treatment while incarcerated – if needed?
Drug education while incarcerated – if needed?
First Step Act Reforms
Who Is Disqualified from Participating?
- State borders
- Military prisoners
- Violent convictions
- Inmates pending deportation
- Convictions in DC Superior Court
- For Table: Violent Offense Codes for PATTERN Risk Assessment(BOP)
- For a more detailed list of Disqualifying Offenses (BOP),
- Serving a sentence for a conviction previously under the First Step Act may disqualify inmates from earning credit.
The Definition of “A Day”
- A calendar day is a day on which the person is participating in whatever assigned programming takes place, on that date.
Is completion of an EBRR or PA program, required – no.
- When they’re in the SHU.
- On designated status outside the BOP facility (for example, extended medical placement, court appearances, furlough).
- On a writ or temporary transfer to the custody of another federal or nonfederal government agency.
- On a mental health hold; or
- Who declines to participate in the recommended EBRR or PA Program.
FSA Credits can begin on day one
- Another reason to consider the benefits of the PSR as a proactive placement tool for those with long sentences.
- Is the BOP Risk and Needs Assessment System
- Assessing the recidivism risk and criminogenic needs of all federal prisoners, and
- Then placing prisoners in recidivism-reducing programs (EBRR) and productive activities (PA) that address their individual needs, to reduce this risk.
- Examples of recidivism risk and criminogenic needs,
- Antisocial Peers;
- Finance; Poverty;
- Mental Health;
- Substance Abuse;
- Trauma; and
Mandatory Minimum Sentences (Page 2, 2019) (where applicable)
- A defendant who previously would have been sentenced to 20 years might now face 15 years.
- The new law also gives judges greater discretion to ignore the Mandatory Minimum
Expanding the Safety Valve (Page 3, 2019)
- The FSA also expands the safety valve provision, which allows courts to sentence low-level, nonviolent drug offenders with minor criminal histories to less than the required mandatory minimum for an offense.
Pre-release placement refers to:
- Home confinement and/or,
- Halfway house (also known as Residential Reentry Center (RRC)
The Second Look Act
- For those who committed a crime before the age of 25, and
- Who has served a minimum of 15 years in prison,
- They can apply to the DC Superior Court to have their sentence reviewed.
For those who participated in The FSA 12/21/2018 – 1/14/2020.
- Those credits are being awarded, retroactively.
Retroactive Application of the Fair Sentencing Act of 2010, Section 404 (Page 4, 2019)
§ 523.43 Loss of FSA Time Credits(DOJ-BOP).
- Inmates who are found guilty of misconduct may not earn incentives for the time periods listed below.
- The below time periods will begin the day after the Unit Disciplinary Committee or the Disciplinary Hearing Officer has found that the inmate has committed the prohibited act(s).
- 120 days for a 100 Series incident report.
- 90 days for a 200 series incident report.
- 60 days for a 300 series incident report.
- 30 days for a 400 series incident report.
For additional information, contact the Reentry Services Division (RSD) by sending an email: BOP-RSD-NRB-FSA@BOP.GOV