DISCLAIMER: Do not waste your time reading this unless you’re up to the minute on the federal time credits issue.
In September, the IG released a report on BOP policy which emphasized one of my many rants over the past several years regarding the agency’s ineptitude to update policy and issue formal “Change Notices” and “Operations Memoranda” in accordance with their own Directives Management Manual. DOJ OIG Releases Evaluation of the Federal Bureau of Prisons’ Policy Development Process (justice.gov) Let us not forget the Second Chance Act of 2007 made significant changes to the BOP policy on what was referred to at the time as “CCC Utilization”, aka RRC/Halfway houses and not a single change notice or policy update was ever released regarding these changes. Program Statement 7310.04, Community Corrections Center (CCC) Utilization and Transfer Procedure (bop.gov) I am not writing this blog about this specific subject and only providing context and analogy about the inconsistency of BOP policy application across the country on RRC’s is now even more problematic about the FSA Federal Time Credit (FTC) credits issues given the absence of policy in conjunction with complexity of the underlying requirements of the law.
The micro issue is regarding a recurring question that I cannot answered with authority in the absence of policy but here it goes:
What is the placement eligibility date for a person meeting the definition of an “Elderly Offender” who has already received one year extra federal time credits ?
While this sounds straight forward, the ambiguity is regarding what I am seeing across the country regarding CARES ACT referrals. Some facilities are using the NET for eligibility rather than the gross. By gross, I mean the total sentence, because when you read the CARES ACT eligibility memo, it uses the language 25 & 50 percent of the “sentence”. NET would be sentence minus any applied good conduct time (GCT) plus FTC (Federal Time Credits). Most facilities are processing CARES ACT referrals based on the gross.
So, riddle me this: It is clear the 6 month/10 % limitation of home detention can be waived for Elderly Offender Home Detention placement, but what constitutes the satisfaction of having “served 2/3 of the term of imprisonment” as required in the policy directive?
001_2021.pdf (bop.gov) (Notice this ops memo is expired!) 😉
Let us look at a simple analogy (Gross) A nine-year sentence would have a six-year 2/3 (72 month) eligibility date which has been the way the agency has calculated it since before the First Step Act. This is an example of the Gross. I have processed these for the BOP when the Elderly Offender was a pilot back in 2008, and since my retirement made formal written recommendations to legislators that they should apply the Net as indicated below which would be the best-case scenario.
(Net) Nine-year sentence, (108 months) minus GCT 15 %- approx. (16 mos.) equals 92 months, minus 12 months FSA-FTC (12 months) equals 80 months. So, home detention could be 2/3 of 80 months (approx. 52 months) under a wishful thinking scenario but there may be some statutory prohibition to that interpretation. I am not a lawyer and stay in my lane, but I am almost certain the BOP has set the precedent to allow some CARES ACT referrals at the net eligibility!
CLEAR AS MUD!