The following message was written by Michael Santos. As you likely know, I run White Collar Advice and Michael runs Prison Professors. White Collar Advice proudly sponsors Prison Professors. That sponsorship helps our team give away free resources, including our free webinar on Fridays and Saturdays.
Justin Paperny
Dear members of our community,
We hired one of our subject-matter experts to analyze policy statement 5410.00. He provided us with useful information that members of our community should know and understand, including:
As Hugh Hurwitz, the former BOP Director initially recommended, the BOP has determined that a person in federal prison will be able to see all of their potential Federal Time Credits (FTC) at their first team meeting.
People will continue to earn FTCs while in Administrative Detention. Participation will be limited in that they cannot leave to go to programs/classes. But if they have access to self-directed classes, they may earn FTCs while in Administrative Detention.
People will continue to earn FTCs while in the community, as long as they comply with the Residential Reentry Center rules or home confinement.
If a person signs up for an approved class and qualifies for FTC, the person will remain in “earning status” while on the waitlist. The policy limits this to two consecutive assessment time frames, but administrators have discretion on this matter. This policy should lead to more programs that will qualify for FTC in federal prison.
Advocacy:
The policy statement also addresses complications with juveniles in federal custody, and people serving sentences under the DC code, and people serving state sentences. These provisions will require more advocacy and time for the BOP and the courts to resolve.
Another issue that the courts already ruled on is detainers or concurrent jurisdiction cases. If a person has a concurrent federal and state sentence (ran at the same time) and the individual is in state custody, there is no reason that the BOP cannot allow for FTC credits to allow the Federal Sentence to be shortened. This interpretation would not infringe upon the state sentence in any way.
The program statement does not specify how the BOP will document a delay of a person to complete the SPARC 13 questionnaire. Our subject-matter expert considers this an area of contention. It will most likely take a lot of Administrative Remedies and Court Cases to resolve. People should learn about SPARC 13 and any other questionnaires that the BOP requires and complete those questionnaires or surveys as soon as possible.
We have enough cases where an individual is designated to a RRC to serve their sentence, generally sentences of a year or less but with the Elderly Offender Program we have seen this extended significantly. According to the program statement, people may earn FTCs but its contrary to the language in 6(a). The language of 6(a) puts people FTC earning status upon arrival at a designated Bureau facility. Advocacy may be necessary to change this language to allow for designation to a BOP facility or any other facility.
Pg 13 10(a) goes against the recent court case regarding the application of FTC towards early termination of the Federal Sentence if a detainer is in place. The court ruled that the BOP should apply FTCs toward early termination of the Federal Sentence and transfer to the detaining agency. The policy does not allow for this transfer and may require additional advocacy.
Pg 15, 2nd bullet says that if an individual transferred to early placement into an RRC, and subsequently returns to BOP custody, the person “ordinarily” will not to be considered for placement again under the FSA FTC criteria. This may be problematic for individuals who earned significant time credits to allow for the year early supervision and a year in the RRC. It’s conceivable that they are returned to the BOP for a technical infraction, sanctioned to loss of a small part of the FTC’s, but now are now no longer be eligible to apply any subsequent FTCs earned to early release or placement in the community. As BOP DHOs must sanction cases this happens fairly frequently where an inmate is returned to a federal facility for their hearing and discipline and currently return to a RRC. This section of the policy does not allow for return under FSA so only the 2nd Chance Review will allow them to return to a RRC or HC without the benefit of application of the FTCs. It may require further advocacy.
If a person scores as a high or medium security level, and the person has less than three years on their sentences, they do not have an avenue to initiate a request based on their participation in programs. A vehicle does not exist to show three years or more clear conduct. (Note: this may have been the intent of the FSA; if a person scores as a High/Med, the person should serve at least 3 years of a sentence. This may require more advocacy.
Pg 16 again uses the detainer language. It will be interesting to see if any more court cases come out of this part of the policy.
The RDAP early release section contains a couple things that need to be cleared up. If the person is in FTC earn status and is also a 3621e, it’s possible that the FTC Projected Release date would come before the 3621e release date. The BOP will have to calculate both methods of release to determine which would release the individual the earliest. This calculation may be somewhat difficult. The BOP does not require that a person complete RDAP to be eligible for the FTCs associated with RDAP. The agency does require completion for the 3621e date to apply. It requires a person participate in the program and complete it successfully. A person may earn the early release based on FTCs rather than the completion of 3621e.
The First Step Act FTC program will continue to face challenges over the next few years. Typically, several years will pass before the agency develops a sound policy. We should expect advocacy and litigation as we continue to see this program evolve. Our team at Prison Professors will continue working to bring awareness to the program, and to help stakeholders understand the importance of expanding policies that allow all people in prison, regardless of PATTERN Scores, to work toward earning higher levels of liberty, at sooner times.
