What a difference a month makes   


There have been many developments since the BOP issued the final rule regarding the First Step Act, Federal Time Credits (FTC). Shortly after last month’s article, I began getting feedback from across the country about conflicting information from BOP staff and the incarcerated about the awarding of the credits.

People in the RRC and on home detention have told me they had never participated in any work or educational programs but received large awards of FTC, but others who completed programs and worked, were told they had not earned any time credits because the programs did not qualify. More than one case manager told me there is some type of glitch in the SENTRY program and the automated SENTRY sentence computation function has yet to be finalized. I will draw some general conclusions about the implementation of the rule at the end of this article, but there cannot be clarity or uniformity until the BOP releases the formal program statement that I referenced in past articles going back to early 2020. (Draft Entitled, “The First Step Act of 2018-Time Credits: Procedures for Implementation 18 USC 3632 (d)(4)”.

Late last week, the agency updated the July 2021, First Step Act Approved Programs Guide. fsa_program_guide_2201.pdf (bop.gov) This guide contains the evidenced based and recidivism reduction programs (EBRRP) and productive activities that enables a person to earn FTC. When the policy is released, it will be interesting to see if the BOP continues to adhere to their former practice and rules language about the awarding of credit only for programs identified and recommended by the unit team in one of the thirteen risk and needs-based areas. It will be equally interesting to see if they follow earlier guidance on giving priority program placement to people with medium and high risk.

Anyone serving time will understand the logistical nightmares inherent in the prison culture such as the manipulation of waiting lists, extensive waiting lists and the lack of staff to deliver recommended programs and activities. The programs guide has hundreds of programs that allegedly are offered at “all facilities” which does not appear to be possible given understaffing, augmentation duties, Covid protocols and the intentional reduction of Tier two volunteers by the current BOP administration.

My biggest concern is about the possibility for additional FTC exclusions because of a recent internal memorandum from the BOP Re-entry Affairs Division which used the term; “Director’s Discretion.”  This term is contained in Program Statement 5162.04, Categorization of Offenses (bop.gov) which “excludes early release benefits” for a myriad of crimes, priors, and even non-violent offenses the BOP Director has determined to be ineligible. This will also be clarified when the policy is issued but my non-legal mind cannot help me from thinking about the “residual clause” which was struck down by the supreme court!

General observations and opinions:

Given the pressure on the agency, it appears that large FTC awards were given to people on home detention and in the RRC regardless on the amount of time earned for expediency, political favor and to clear up community resources.

The final FTC SENTRY program is either flawed or not yet finalized which is leading to inconsistency when viewed in the context of the final rule compared to the approved programs guide.

There are many people with a computer entry of “refuse” on the SENTRY inmate profile transaction who are unaware and reportedly never “refused” any programs.

There is no formal computer tracking assignment to give priority program placement to medium and high-risk people.

People are still not being provided the specific PATTERN scoring worksheets to challenge any specific scoring errors which may inflate the actual recidivism risk level. This lack of transparency precludes due process by stifling the ability to file an administrative prior to litigation. This form should be numbered and filed in the central and electronic file so it can be disclosed, no different than the classification form.

To make things worse, there is a December 2021, NIJ report which indicates there continues to be problems (discriminatory) with PATTERN and the fourth revision of the algorithm is pending approval by the DOJ.

Last week, various experts testified to a House Judiciary sub-committee on PATTERN and what caught my attention is a reference to an eleven percent error rate and false over classification of the recidivism risk level. It is very concerning to me that people may be denied early release based on a flawed tool. I am sure the implementation of this rule as it stands now, is going to result in litigation for years to come. A formal “override” which is part of the BRAVO-R classification tool would be practical.

The absence of a formal program statement in the public domain which can be reviewed and challenged, if necessary, is only leading to further confusion and inconsistent FSA application across the country.