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First Step Act - Earned Time Credits

Newsletter 11/19/22

FIRST STEP ACT OF 2018 - Earned Time Credits

The correlating Code of Federal Regulations for earned time credits is 28 C.F.R. 523.40 to 523.44. The Policy number is 5220.01

* 523.40 Purpose

* 523.41 Definitions

* 523.42 Earning FSA Time Credits

* 523.43 Loss of FSA Time Credits

* 523.44 Application of FSA Time Credits

FORM - DOCUMENT TO REQUEST

If you would like to see how your time is broken down for each program that you have started, completed, or withdrew from ask your Unit Team for your FSA Time Credit Assessment Sheet, This form will tell you the start and end date for each program, how many days you have accrued (earned), the date of your assessment, the number of days that are disallowed (you cannot earn), the amount of time towards RRC/HC (halfway house & home confinement), FTC towards release, and if your earned time can be applied towards FTC. If you are disallowed time that means for one of the disqualifying reasons have been applied (i.e., SHU, extended stay out of BOP, refusal, etc.). If you are disallowed because you refused a program you can reapply for that program that you are required to take and this disallowed status will be reversed.

When you look at you FSA Time Credit Assessment Sheet, the programs that you are on the waiting list should also be listed here. Under assignment it will give the code for the program and have WAIT next to it, if you are on the waiting list. For example, if you are currently on the wait list for the LCP program then it will show up as LCP WAIT. If your program is not listed here, then you are not officially on the waiting list and not earning credit for it. You will also see that it has the date that you started and the date that it stopped. If you have not finished the program then the stop date should say CURRENT.

WHAT IS EARNED TIME CREDITS - PURPOSE

The FSA expands the Second Chance Act. The FSA allows eligible prisoners to earn additional time credits for successfully participating in evidence-based recidivism reduction ("EBRR") programming or production activities ("PA"). See The First Step Act of 2018, available at https://crsreports.congress.gov/product/pdf/R/R45558. Nothing in the Second Chance Act or the FSA entitles a prisoner to guaranteed placement in an RRC ("Community Correctional Facility") as defined in 18 U.S.C. 3624(c)(1).

The Earned Time Credits ("ETC") and Good Time Credits ("GTC") are not the same, and are not governed under the same rules. Good Time Credit results in an actual reduction of a prisoner's sentence and is awarded for maintaining good behavior during incarceration. All incarcerated persons, other than those serving life sentences, are eligible for Good Time Credits. Earned Time Credits are awarded to prisoners for successful participation in evidence-based recidivism reduction programming or productive activities. The FSA does not pertain to 28 C.F.R. 541.3, which governs the DHO's right to forfeit non-vested good conduct time.

CALCULATION & EARNING FSA TIME CREDITS (28 C.F.R. 523.42(a))

Section 523.42(a) states that an eligible prisoner begins earning FSA Time Credits after their term of imprisonment commences (the date they arrive or voluntarily surrender at the designated Bureau facility where the sentence will be served). If released on bond, appeal, or at any other place (i.e., writ, county, non-Bureau hold over), then you cannot earn any FSA Time Credits. Once you return to a designated Bureau facility you can start earning FSA Time Credits again.

* You can NOT earn FSA Time Credits if your current offense is listed as an ineligible offense. (18 U.S.C. 3632(d)(4)(D)).

* You can NOT earn FSA Time credits for programming prior to December 21, 2018. (18 U.S.C. 3632(d)(4)(B)(i)).

* You can NOT earn time credits if you are subject to a final order of removal under immigration laws as defined in 8 U.S.C. 1101(a)(17). See 18 U.S.C. 3632(d)(4)(E) and 28 C.F.R. 523.44(a)(2).

* You can NOT earn time credits during official detention prior to the date your sentence commenced (started) under section 3585(a) of Title 18. (18 U.S.C. 3632(d)(4)(B)(ii)).

* You can NOT have credits applied if you are serving a term of imprisonment pursuant to a conviction for an offense that is not included as a note within 18 U.S.C. 3621. (28 C.F.R. 523.44(a)(3)). This paragraph will not bar the application of FSA Time Credits, as authorized by the DC code, for those serving a term of imprisonment for an offense under the DC Code. 28 C.F.R. 523.44(a)(3).

You CAN earn FSA time credits if you were sentenced to a term of imprisonment under the U.S. Code. (28 C.F.R. 523.44(a)(1), and do not have a disqualifying offense of convictions as listed in 18 U.S.C. 3632(d)(4)(D).

* You CAN earn FSA Time Credits between 12/21/18 and 1/14/2020 without being in an EBRR program or PA program, however, after 1/14/2020 you can only earn FSA Time credits for successfully participating and completing EBRR programs or PA's that the Bureau has recommended based on your individual risk needs assessment. 28 C.F.R. 523.42(b)(2)-(3).

The BOP calculates the programming times as 30 days of programming equaling 240 hours, and 240 hours or 30 days is equal to 10 days of time credits. 28 C.F.R. 523.42(c)(1); 18 U.S.C. 3632(d)(4)(A)(i). You can refer to the BOP bulletin to see how many hours each program counts as, however, this should also be noted in your Education Data Sheet. Keep in mind that not all programs are listed in your Education Data sheet, like psychology and religious programs (e.g., Threshold). These are listed elsewhere. However, all of your FSA programs that you have completed, withdrew from, refused, or on the waiting list should be listed in your FSA Time Credit Assessment Sheet. You can compare these programs with those on your Education Data sheet for example, to verify that you are getting credit for everything that you have completed that qualifies.

This means that if you have been programming and you have earned 210 hours, you will not have that time applied, because you have not reached 240 hours. District courts are upholding this as being within the discretion of the BOP and consistent with Congressional intent.

You can earn an additional 5 days per 30 days of programming only if you are an eligible prisoner, you have successfully participated in EBRR or PA programming based on your risk and needs assessment (this information is located in your FSA Time Credit Assessment Sheet), AND your determined by the BOP to be at minimum or low risk for recidivating; and you have maintained a consistent minimum or low risk or recidivism over the most recent two consecutive risk and needs assessments conducted by the BOP. 28 C.F.R. 523.42(c)(2)(i)-(ii); 18 U.S.C. 3632(d)(4)(A)(ii).

Your days accrued is not actually what you are getting but rather what the calculation is based on. Take for example, your FSA Time Credit Assessment Sheet shows that you have accrued 147 days. You divide 147 by 30, which gives you 4 and a remainder of 17. The 4 will then be calculated by either 10 or 15 depending on if you are earning 10 or 15 days per 30 days of programming. The remaining 17 days will carry over until you reach another multiple of 30. This means that it is not abnormal for you to see accrued days or disallowed days exceeding 1,000, but these are not actual days. you must divide these numbers by 30 and then multiply by 10 or 15 as explained above.

In order to have your FSA Time Credits applied, you must also have a PATTERN score of Low or Minimum, otherwise on your FSA Time Credit Assessment the category for "Can Apply FTC" will be checked as "No". You will continue to earn them, but will not be able to have them applied until you get your risk assessment down to one of these categories. See 18 U.S.C. 3624(g)(1)(D)(i)(II).

All prisoners are required to have a meaningful opportunity to reduce your PATTERN classification during your incarceration. 18 U.S.C. 3632(a)(5)(A) and this means the BOP is required to make it possible for you to participate in such programs they deem you need to take. 18 U.S.C. 3632(a)(5)(C).

LOSS OF EARNED TIME CREDITS (28 C.F.R. 523.43(a); PS 5220.01(8); 18 U.S.C. 3632(e)

Please refer to 28 C.F.R. 523.43(a). You can lose days that you have earned from disciplinary infractions. You are permitted to appeal any loss of days through the Administrative Remedies Procedures (28 C.F.R. 542.10 to 542.19). You can have any lost days restored after clear conduct of any disciplinary infractions under 28 C.F.R. 541.1 to 541.8. You can also have loss days restored. This is through good behavior, administrative remedies, or having some technical error fixed through the proper channels. These losses are in addition to the loss of GCT.

The BOP has held that for disciplinary infractions the following loss of time credits will be applied:

* 120 days for a 100 series incident report

* 90 days for a 200 series incident report

* 60 days for a 300 series incident report

* 30 days for a 400 series incident report

These losses can only include time credits that you have earned as of the date of the rule violation, and shall not include any future time credits that you may earn. 18 U.S.C. 3632(e).

INCENTIVES

The BOP is required to provide appropriate incentives for successful participation and completion of EBRR programs. 18 U.S.C. 3632(d)(3)(A)-(D). Any confirmed EBRR program participation results in additional phone and visitation privileges and consideration for a nearer release transfer as specified in 18 U.S.C. 3632(d)(2). See Policy Statement 5220.01(6). Institutions must host at least one FSA incentive event quarterly. Events may include movie nights, special visit sessions, or parent-child events. PS 5220.01(7)(3). These are in addition to any other incentives that are not part of the FSA.

If you complete an EBRR program that is under 100 hours, like anger management (18 hours) for example, you would be eligible for access to FSA incentive events. PS 5220.01(6). If you have completed an EBRR program that is over 100 hours or more, like LCP (500 hours) for example, you will be able to select either an FSA achievement award or access to placement in a preferred housing unit at your regularly scheduled program review. This request will be made to your Unit Team. PS 5220.01(6). There are several incentives, and these are listed in PS 5220.01(7).

One of the incentives is closer to home placement. PS 5220.01(7); 18 U.S.C. 3632(d)(2). This is subject to bed availability, your security classification, and a recommendation from the warden at the facility you are incarcerated at the time of your request. 18 U.S.C. 3632(d)(2).

You are permitted to request a specific unit within the facility that you are housed. PS 5220.01(7)(3)(Preferred Housing).

JUDICIAL REVIEW

You are permitted to seek judicial review if the BOP refuses to make an individualized determination as to your eligibility for release. 28 U.S.C. 2241 petitions is the vehicle to use. "[T]he settled rules [provide] that habeas corpus relief is appropriate only when a prisoner attacks the fact or duration of confinement." See Preiser v Rodriguez, 411 U.S. 475 (1973). Because these credits affect the duration of your confinement, a 2241 petition in your district of confinement is the appropriate vehicle. This is not the same thing as arguing that you are entitled to be placed on home confinement or in halfway house, as the courts do not have jurisdiction to make such an order. BOP policy states that you will be reviewed for halfway house placement (RRC) between 17-19 months prior to your projected release date.

For D.C. Offenders, you must also still exhaust all adiminstrative remedies like federal prisoners, but your vehicle for challenging FSA time credits is through 28 U.S.C. 2241 in the district you are serving your sentence at the time of filing your petition. DC Code 16-1901 (habeas corpus) does not bar federal courts from considering a 2241 petition when you are challenging the execution or computation of your senence. See Blair-Bey v Quick, 151 F.3d 1036, 1046-47 (D.C. Cir. 1998).

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