We realize Elizabeth Holmes has not even received her federal prison sentence yet. For all we know, she may get her conviction overturned on appeal!
Still, as we covered in previous blogs in our Elizabeth Holmes series, the odds are that she will get a prison sentence. Also, we are confident that she will get out early from federal prison if she understands the upside.
Simply put, there are programs available to Holmes by which she can earn an early release. It will be up to her to maximize the tools for early release available to all people in federal custody.
But we think that when she sees the benefits, she will buckle down to the business of earning freedom.
For people facing federal prison, the world has changed dramatically.
For the better.
We know that nobody wants to go to federal prison. We have been there. It’s a challenging, life-changing journey.
But there are ways people can make the most of the experience and get to the other side stronger and better prepared to face the future.
In fact, there have never been more opportunities to earn your way out of federal prison early than today.
Thanks to the First Step Act and the most recent implementation efforts, people can influence their release dates with programming and productive activities.
In 2018, Congress passed the First Step Act. But implementation efforts from the Bureau of Prisons were deliberately slow and perhaps not in good faith.
We’ve seen the BOP fumble the ball repeatedly when it comes to releasing prisoners, most recently during the Covid-19 pandemic. Tragically, two years into the pandemic, people who should have been serving out their sentence on home confinement have died in BOP custody instead.
The BOP’s delays and misapplication of the law are no surprise. Still, the BOP took 3 years before releasing people who had earned their early release time credits. And it took intense public pressure, congressional hearings, and more to get the BOP in line.
The agency was simply in no hurry to help eligible people get their time credits and return to their families and communities as soon as possible.
Earned Time Credits Implementation Finally Rolled Out
In any event, early release under the earned time credits program of the First Step Act is now underway. People have reason to be cautiously optimistic that implementation will continue to benefit more federal prisoners in the months and years ahead.
One of the essential goals of the First Step Act earned time credits is to encourage participation in productive activities and programs that reduce recidivism. Participation in such programs provides federal prisoners a pathway for early release from prison as an incentive.
What is the First Step Act earned time credits program?
Earned time credits allow federal prisoners to earn 10 days for every 30 days participating in BOP-approved jobs and programs. People who remain in lower-risk categories earn 5 more days of credit, for a total of 15 days for every 30 days they participate and remain in good behavior.
Significantly, the BOP announced it would add earned time credits to people’s BOP accounts every 30 days. This is a significant development for people to see their earned time credits balance and understand how the BOP calculates them. People can then address any discrepancies. As we advance, total transparency in the earned time credits program is crucial for all involved.
More Objective Early Release Opportunities
You don’t have to be a federal prisoner to grasp the extraordinary opportunity people now have at hand to reduce the time they have to spend in federal prison.
Elizabeth Holmes is facing significant prison time.
For an analysis of Holmes’ possible sentence under the US Sentencing Guidelines See Below:
Before the First Step Act of 2018, how many people would have done anything for the opportunity to earn 10 or 15 days for every 30 days of continuous program participation and cut their time dramatically?
Take Prison Professors’ founder Michael Santos, who served 26 years in federal prison. He spent 9,135 days in federal prisons of every security level, creating one of the most productive activity records in prison imaginable. Michael earned Bachelor’s and Master’s degrees from prison while also taking BOP classes, working prison jobs, and writing articles, blogs, and books. During those years, Michael worked his heart out to better himself and his future outcomes. He did so without benefiting from a program like the First Step Act earned time credits.
During his time in federal prison, remaining productive was a choice, reserved for people determined to earn their freedom even without up-front guarantees. During the 26 years that Michael served as a federal prisoner, he worked consistently to prepare for a law-abiding, contributing life upon release.
Elizabeth Holmes can also choose to stay productive during her time in federal prison. Unlike Michael, she has the incredible opportunity to earn time credits, objectively, as a reward.
What are the eligibility criteria for First Step Act earned time credits?
Anyone serving time in federal custody can participate in programs under the First Step Act, but not everyone can use the time credits earned in the programs for early release.
Generally speaking, anyone in federal custody can take courses that provide earned time credits. However, eligibility to apply those earned time credits toward early release from custody is subject to the following criteria:
- located in federal prison, halfway house, or home confinement;
- successful participation in qualifying programs or productive activities;
- considered a “minimum” or “low” risk of re-offending or can obtain the warden’s approval; and
- have earned time credits equal to or higher than the remainder of their prison sentence.
Holmes should meet the First Step Act eligibility criteria to earn time credits and apply her credits towards early release.
People serving time in federal custody can participate in approved programs under the First Step Act, but to apply their earned time credits to early release from prison, they must be considered a “minimum” or “low” risk of re-offending or recidivism. Or they can obtain the warden’s approval.
Once in custody, the BOP will assess Holmes’ needs and risk of committing new crimes. Based on her background as a first-time, nonviolent offender and other factors, she will likely score as a “low” or “minimum” in this assessment. Low or minimum scores allow people to use their time credits towards early release.
Note: People with earned time credits can lose them under certain circumstances. For details, check out our blog on protecting earned time credits below.
When can Holmes start earning time credits under the First Step Act?
As soon as she surrenders to her designated federal prison, Holmes can enroll in First Step Act programs and productive activities, subject to program availability at each facility.
Demand for programs and productive activities is soaring now that BOP is implementing the law and releasing people from prison early to a halfway house or home confinement and from home confinement to supervised release/probation.
What are the programs and productive activities Holmes can take?
The BOP has a list of approved Programs and Productive Activities in the First Step Act Approved Programs Guide.
See below to access the BOP-APPROVED PROGRAM GUIDE.
UNICOR, RDAP, specific BOP-approved college courses, and faith-based activities are on the BOP Approved Program Guide. The hope and expectation are that BOP will continually expand its program offerings so that more people can participate.
How Many Programs and Productive Activities Can Holmes Take Simultaneously?
The number of First Step Act approved programs and productive activities a person can enroll in at the same time depends on the offerings at their designated prison, the available slots open for programs, their “out” date or release date, and their mandatory prison job.
Not all BOP facilities offer all the programs, although the BOP promises to increase its offerings and capacity.
Also, the BOP prioritizes people for enrollment in classes and programs based on their sentence and release date, which can be incredibly frustrating for people wanting to get programs under their belt early in their sentence.
Congress has demanded that the BOP not penalize people who cannot participate in programs because of circumstances beyond their control. The mandate from Congress to BOP is to expand qualifying programs so people can earn maximum time credits. How the BOP will accomplish this remains to be seen in the months ahead.
How Long Will It Take Holmes to Earn One Year Off With Earned Time Credits?
In a vacuum, our best guess right now is that it would take her 2 or 3 years of programming to earn a year’s worth of earned time credits. There are simply too many variables for anyone to know for sure.
For example, assume that Holmes has a mandatory prison job that qualifies as a productive activity for one year and can earn 15 days for every 30 days on the job. That suggests she can earn about 6 months of earned time credits on the job for successful participation.
Whether she can also enroll in an approved course for that entire year is unknowable right now. Theoretically, she would be able to earn time credits for the course and the job. But many prison courses last 4, 6, 8 weeks, and so on. That is a variable factor that will affect a person’s ability to program continuously.
RDAP is a residential drug abuse program that can take 10 to 12 months to complete. It is also a BOP-approved program for purposes of the First Step Act. A person earning 10 days for every 30 days of successful participation could earn 3 to 4 months of earned time credits from completing RDAP.
There are many open questions on how BOP will calculate people’s earned time credits going forward. We remain cautiously optimistic that BOP will be transparent about calculating and applying earned time credits.
The initial approach appears very liberal, but that may be because the BOP had to catch up. Many people still in custody had earned sufficient earned time credits to be released months ago, and there was a rush to let people go.
Holmes’ Early Release
Note: What are the Federal Sentencing Guidelines? They are an advisory, non-binding set of uniform rules for defendants convicted in the US federal court system. They set out a uniform policy for sentencing people and organizations convicted of felonies and serious misdemeanors.
In our Holmes Sentencing Guidelines illustration, we concluded that Holmes would receive a minimum prison sentence in the range of 9-11 years unless she gets her conviction overturned or gets a significant downward departure.
Note: For those wondering how often do federal judges go below the federal sentencing guidelines? Not very often. While judges do not have to follow the guidelines, they typically do follow their recommended sentencing ranges. Judges simply do not deviate significantly from the sentencing guidelines.
Against this backdrop, let’s assume Holmes’ sentence is 10 years, and from there, let’s estimate how early Holmes could be released from prison.
15% Good Time Credit
The first credit Holmes will receive is her Good Time Credit, sometimes called “good time,” “good conduct time,” “GCT,” or “good days.”
The First Step Act amended 18 US Code Section 3624(b) so that federal prisoners can earn up to 54 days of good time credit for every year of their imposed sentence rather than for every year of their sentence served. Before that amendment, the BOP would prorate good time days based on time actually served rather than the sentence imposed (thus prolonging people’s time in federal prison). Thankfully, the First Step Act stepped in.
Good time credits, or 54 days/year, reduce the actual time served in custody by 15%. A prisoner receives the credit at the outset, the system assuming they will have good conduct and have no infractions that result in the loss of good days. In other words, people get all their good days upfront, and it is up to them to keep them.
Assuming Holmes receives and keeps all of her good days, she will receive a good time credit of 540 days (about 1.5 years) at the beginning of a 10-year sentence. (If her sentence is 15 years, her good time credit will be 810 days (or 2.2 years), and about 1,080 days (or 3 years) on a 20-year sentence.)
Note: People have to serve 85% of the imposed prison term in the federal system. By comparison, while some states have adopted the 85% federal standard, other states require that people serve 50%, 65%, or 70%. The federal standard is the highest.
With good time credit of 1.5 years, Holmes would serve 8.5 years on a 10-year sentence.
RDAP or Residential Drug Abuse Program
RDAP is the only program that allows a federal prisoner to reduce a year off their sentence by completing the program. RDAP is typically a 500-hour program in which participants are housed together in a separate unit reserved for drug treatment at a BOP institution.
Per the BOP, to be eligible for RDAP, people must:
- have a sentence into BOP custody;
- get a BOP determination of a substance abuse disorder;
- sign BOP’s “Agreement to Participate in the Bureau’s Residential Drug Abuse Program”;
- reside in a BOP institution that offers RDAP;
- have enough time remaining in their sentence to complete a residential drug abuse program; and
- be willing to participate in a residential drug abuse treatment program.
After completing RDAP, people receive a sentence reduction of up to 12 months.
In addition, RDAP graduates are typically allowed to transfer to a halfway house 6 months early to fulfill a substance abuse treatment program in their community. (This is why people often talk about “getting 18 months off” for RDAP. )
Based on evidence at Holmes’ criminal trial, we know that Holmes suffered PTSD from sexual abuse at Stanford. We also know about her claims of abuse at the hands of her co-defendant and former boyfriend, Sunny Balwani. If we infer from her history that she may have struggled with substance abuse at some point, she may qualify for RDAP. As such, let’s award her a one-year sentence reduction.
Sentence: 10 years
GCT: 1.5 years
RDAP: 1 year
RDAP Halfway House: 6 months
Time to Serve: 7 years
For more information on RDAP See below:
Now let’s look at possible First Step Act earned time credits Holmes might earn.
Earned Time Credits
Depending on how many earned time credits Holmes earns in the earlier years of her sentence, she can materially impact her early release date. It is impossible to do exact math on Holmes’ potential earned time credits, though we know that the days and months a person can earn and apply to early release can really add up.
The earlier Holmes, or anyone else in a similar predicament, engage in approved programs and productive activities, the more credits they can accumulate towards early release.
Let’s assume, for illustration purposes, that Holmes will be earning 15 days for every 30 days of participation in approved programs based on her low risk for re-offending.
Then, for every 6 months of program participation in a year, she earns 3 months of earned time credits. At 9 months, she earns 4.5 months. At a year, she earns 6 months and so on.
But what if, as often happens, Holmes engages in multiple productive activities at once, like both a job and a course for which she can earn time credits? Based on our team’s prior experience in the system, this is entirely possible–people have jobs and courses going on simultaneously in federal prison all the time.
Also, there are 18-month BOP apprenticeships, 2-year Associate’s Degree programs, and other programs running continuously. Many people while in federal prison hold a job, take a course, and have approved independent study, all simultaneously.
To make this more concrete, here’s a possible scenario:
Holmes could earn 9 months to one year of earned time credits during her first 2 years in prison, then take RDAP in year 3. She might also earn additional credits from an approved job or another approved weekend course. Depending on the BOP’s implementation going forward, Holmes could put herself on a path towards early release in years 4 or 5 of a 10-year sentence. Possibly.
In a vacuum, the math is not easy to do. We know the BOP has significant staffing shortages and other challenges that affect its ability to offer continuous programming for all eligible inmates. Holmes will have to be proactive to keep herself enrolled and productive from the outset to maximize her opportunities to earn early release.
Holmes Early Release Estimate
Caveat: this is an illustration, and there are a lot of variables!
Still, with good conduct time, a one-year RDAP reduction, 6-month release to halfway house for drug treatment, and one or 2 years of earned time credits, Holmes could serve 5 to 6 years on a 10-year sentence.
Holmes’ Early Release Estimate
|RDAP Halfway House
|Earned Time Credits
|1 year or 2
|Time to Serve
|5 to 6 years
Like Elizabeth Holmes, anyone facing a federal prison sentence can take advantage of early release opportunities if they are willing to work towards earning their freedom.
At Prison Professors, we advise people to make a plan before their sentence even begins so they can remain productive the entire time of their federal prison stay. People would be wise to do so not just because of the earned time credits, but because it is the only way to prepare for a better outcome after a prison sentence, and make the most of second chances afterward.