Highlighting ACLU’s class-action lawsuit over the First Step Act’s earned-time credits

I have blogged repeatedly about various challenges that the Bureau of Prisons has faced in the implementation of the First Step Act’s earned-time credits. In this new Forbes piece, headlined “ACLU Files Class Action Against Bureau Of Prisons Over First Step Act,” Walter Palvo reports on a new ACLU lawsuit filed again BOP. I recommend the piece in full, and here are excerpts (with links from the original):

In November 2022, Senators Dick Durbin (D-IL) and Chuck Grassley (R-IA) wrote to the Federal Bureau of Prisons (BOP) Director Colette Peters about their concerns concerning the implementation of the First Step Act (FSA)….  Over two years since release of that statement, the BOP continues to struggle in implementing FSA, which allows thousands of mostly minimum security prisoners to both reduce their sentence and spend more of their sentence in prerelease custody in the community.  Last week, the American Civil Liberty Unions (ACLU) filed a class action lawsuit on behalf of thousands of prisoners who believe they should be in community confinement rather than prison.  According to the lawsuit the BOP has unlawfully treated credits earned under FSA as discretionary rather than a mandate clearly stated in the law….

The BOP has largely succeeded in giving FSA credits associated with reducing the sentence, which can be up to one year.  However, for those with longer sentences, over 4 years, the FSA allows prisoners to continue to earn credits toward prerelease custody (halfway house and home confinement).  This part of the FSA has caused considerable problems for the BOP as it has interpreted this part of the law as being discretionary, something the ACLU has focused on in its lawsuit.  It is anticipated that thousands of federal prisoners will sign on to this action.

The BOP has already been sued by individual prisoners and the courts have awarded the credits in some of those cases that were disputed.  However, the BOP did not use those losses as an action to update its program statements nor did they appeal the ruling.  Instead, the BOP has been less than transparent in how it determines when a person can apply the credits for prerelease custody.  Federal prisoners have a right to resolve their differences with the BOP through an administrative remedy process.  However, that process can take months and prisoners simply serve out their term without receiving the maximum amount of time in the community….

Over the past few months, I have received dozens of letters from FCI Forrest City satellite prison camp stating that they are not receiving the credits due to a lack of programming and a FSA miscalculation by the BOP.  As one prisoner wrote, “My formal attempts to remedy this issue with the prison’s administrators and staff have [been] met with negative results due to their refusal to take any remedial action.”  Based on reviews of several FSA calculations, not only is the BOP not releasing prisoners as soon as it could, many prisoners believe they are being retaliated against for bringing attention to the problem.  The ACLU press release on its lawsuit states that “the BOP’s failure to implement the First Step Act according to its plain language violates the rights of thousands of people who should be returning to their communities and rebuilding their lives but instead remain incarcerated.”

The BOP may have reasons for not moving prisoners into the community.  The BOP has stated that it does not have the capacity in halfway houses to place prisoners and has taken liberty to move prisoners only when it has the ability to do so.  The FSA was known as being a law that would lead to more prisoners in community custody yet the bed space capacity at halfway houses in 2018, the year the law was signed, remains roughly the same today years later.