By Sean R. Francis
This is part one of a series of blog posts that will breakdown and explain the First Step Act and how it applies to federal offenders.
On December 21, 2018, President Trump signed the First Step Act (FSA) into law. https://www.bop.gov/inmates/fsa/faq.jsp This piece of legislation is one of the largest measures seeking to reform the federal criminal justice system in decades. After years of “lock em up, and throw away the key” policies, such as the Prison Litigation and Reform Act (PLRA), and the Violent Crime Control and Law Enforcement Act of 1994, it appears the pendulum may be swinging the other way.
If you or a loved one are incarcerated in the Bureau of Prisons or are facing federal criminal charges it is vital that you understand what this act is and how it can potentially help. It is important to understand that the First Step Act applies to federal offenders only. If you or a loved one have been convicted in state court and sentenced to state prison the First Step Act cannot help you. So, let’s discuss what the First Step Act does:
Good Conduct Time-
Prior to the FSA, the Bureau of Prisons ( BOP) policy stated that “inmates earned up to 54 days of good conduct time for each year served and, in accordance with 18 USC 3624(b), the BOP pro-rated the amount of good conduct time earned for the final year of service of sentence.” https://www.bop.gov/inmates/fsa/faq.jsp#fsa_applicability
However, the BOP has a history of being very creative with math and, in reality, inmates have historically received only 47 days of good conduct credit, not 54 days. “The BOP interprets good time credits of “up to 54 days at the end of each year of the prisoner’s term of imprisonment” in 18 U.S.C. § 3624(b) to mean 47 days for every year of the term of imprisonment.https://www.ussc.gov/sites/default/files/pdf/training/annual-national-training-seminar/2016/slideshow_BOP.pdf ; see also https://famm.org/wp-content/uploads/faq-federal-good-time-credit.pdf
However, under the FSA the offender would get 54 days for each year of their sentence. Therefore, an offender sentenced to ten (10) years will now earn 540 days of good conduct time. The inmate will be credited, if they maintain clear conduct, with 54 days for each year of their sentence. Prior to the FSA, the inmate would only earn 399.5 days of good conduct time credit on a ten – year sentence. Clearly, this is a game-changer!
This provision of the act is retroactive for any offender sentenced after November 1, 1987. According to the BOP and other sources, this change in the application of good time has resulted in over 3,100 prison sentences being shortened and offenders sent home early and it’s just the beginning. https://www.aclu.org/news/smart-justice/the-first-step-act-was-exactly-that-a-first-step-what-comes-next/
Earned Time Credits for Programing
The FSA has also sweetened the pot for inmates who wish to better themselves through programming. Before the FSA all programing would do is earn you brownie points with the unit team and hopefully pay off when it is time for you to be considered for halfway house.
However, programing now has some real incentives. An inmate may earn time credits for completion of Evidence-Based Recidivism Reducing Programs and/or Productive Activities if they were not convicted of a non-qualifying offense.” There is a lot to unpack here, so let’s get started.
First, the BOP has not yet identified exactly what programs will qualify as “recidivism reducing programs/productive activities.” Rather the BOP simply states that “The BOP will identify approved programs and activities in the near future.” Also, if you participate in any programming, even the approved programming BOP promises to soon identify, during pre-trial detention, it will not count towards additional earn time credits.
Additionally, earn time credits will not be available for everyone. The BOP has identified a list of “disqualifying offenses”. If an offender has a conviction for a disqualifying offense’s they may not earn the additional earn time credits and be eligible for additional time off their sentence. You can find the list of disqualifying offenses by clicking on the link below.
It is important to understand that “participation and completion of those assigned programs and activities can lead to placement in pre-release custody or a 12-month sentence reduction under the First Step Act”, not must lead.
Therefore, additional time credits earned through programming can result in either an additional halfway house time or a 12-month sentence reduction. However, it is not assured. While it is very early and we do not know how this will play out yet, it is important to remember that the BOP has a history of using any desecration they are given to give inmates less than they may be entitled to.
The First Step Act has expanded a good time, impacting nearly every federal inmate. No longer will the BOP be able to pro-rate the 54 days a year an offender is entitled to if they maintain clear conduct. From this point on it is 54 days for every year an offender is sentenced.
Also, offenders can earn additional credits towards additional placement in pre-release custody (halfway house) and/or up-to a 12-month sentence reduction. However, it appears that the BOP has desecration on what it awards offenders and there is a laundry list of offenses that, if an inmate is convicted of, disqualifies them from even being eligible for the additional earned time credits. Currently, it is too early to tell how the newly earned time credits will play out and how the BOP will implement this aspect of the FSA.
Please check back with us to learn more about how the First Step Act will affect you or your loved ones.
Mar 11th, 2020