Thousands of federal prisoners finally to get FIRST STEP Act credits as DOJ implements earned time rules

As reported in this new AP article, headlined “Thousands of federal inmates to be released under 2018 law,” this weeks brings some big FIRST STEP Act implementation news, just over three years since President Trump signed the landmark sentencing reform legislation.  Here are the basics:

The Justice Department will begin transferring thousands of inmates out of federal prisons this week as part of a sweeping criminal justice overhaul signed by President Donald Trump more than three years ago.

The department, in a rule being published Thursday in the Federal Register, is spelling out how “time credits” for prisoners will work. The bipartisan law is intended to encourage inmates to participate in programs aimed at reducing recidivism, which could let them out of prison earlier….

While the transfers are expected to begin this week, it isn’t clear how many inmates will be released. The department would only say that “thousands” of inmates are being affected.

Under the law signed in December 2018, inmates are eligible to earn time credits — 10 days to 15 days of credit for every 30 days they participate in prison programs to reduce recidivism. The programs range from anger management and drug treatment to educational, work and social skills classes.

The announcement of a finalized rule being published comes about two months after the department’s inspector general sounded an alarm that the Bureau of Prisons had not applied the earned time credits to about 60,000 federal inmates who had completed the programs. It also comes a week after an announcement that the director of the prison agency, Michael Carvajal, will resign from his position in the face of mounting criticism over his leadership.

The Biden administration has faced increased pressure from both Democratic and Republican lawmakers to do more to put in place additional aspects of the First Step Act, and the bureau has been accused of dragging its feet….

The inmates being released will be sent to supervised release programs, released to home confinement or transferred into the bureau’s residential re-entry centers, commonly known as halfway houses. The law allows inmates to earn time credits back to 2018, when the First Step Act was enacted.

The Justice Department says implementation of the finalized rule will begin this week with inmates whose time credits exceed the days remaining on their sentence, are less than a year from release and have a term of supervised release. Transfers are underway. More are expected in the weeks ahead as officials apply the time credits to inmates’ records.

The rule also changes the bureau’s definition of a “day” of credit. A proposed version in January 2020 said inmates would need to participate for eight hours in certain academic programs or prison jobs to qualify for one day’s worth of credit. But the final version changes the timetable and says the prior standard “was inconsistent with the goals” of the law. Inmates will earn 10 days for every 30 days they participate in programs. Inmates who can remain in lower risk categories will be eligible for an additional five days of credit in each 30-day period.

Advocates say the finalized definition of a “day” will make it easier for a wide array of prison programs to count toward time credits and will mean more people will be eligible for release earlier.

This new Justice Department press release, titled “Justice Department Announces New Rule Implementing Federal Time Credits Program Established by the First Step Act,” discusses these developments this way:

Today, the Department of Justice announced that a new rule has been submitted to the Federal Register implementing the Time Credits program required by the First Step Act for persons incarcerated in federal facilities who committed nonviolent offenses.  As part of the implementation process, the Federal Bureau of Prisons (BOP) has begun transferring eligible inmates out of BOP facilities and into either a supervised release program or into Residential Reentry Centers (RRCs) or home confinement (HC).

“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,” said Attorney General Merrick B. Garland.  “Today, the Department of Justice is doing its part to honor this promise, and is pleased to implement this important program.”

The First Step Act of 2018 provides eligible inmates the opportunity to earn 10 to 15 days of time credits for every 30 days of successful participation in Evidence Based Recidivism Reduction Programs and Productive Activities.  The earned credits can be applied toward earlier placement in pre-release custody, such as RRCs and HC.  In addition, at the BOP Director’s discretion, up to 12 months of credit can be applied toward Supervised Release.  Inmates are eligible to earn Time Credits retroactively back to Dec. 21, 2018, the date the First Step Act was enacted, subject to BOP’s determination of eligibility.

Implementation will occur on a rolling basis, beginning with immediate releases for inmates whose Time Credits earned exceed their days remaining to serve, are less than 12 months from release, and have a Supervised Release term.  Some of these transfers have already begun, and many more will take place in the weeks and months ahead as BOP calculates and applies time credits for eligible incarcerated individuals.

The final rule will be published by the Federal Register in the coming weeks and will take immediate effect.  The rule, as it was submitted to the Federal Register, can be viewed here: https://www.bop.gov/inmates/fsa/docs/bop_fsa_rule.pdf

This seems like a very big deal, especially with the retroactive application of credits and the new “day” rule for earning credit, and I will be very interested to see if the federal prison population (which today BOP reports at 157,596 “Total Federal Inmates”) starts a move back down after having grown by around 6,000 persons during the first year of the Biden Administration.