It did not take long for the BOP to issue a change notice to Program Statement 5410.01, FSA of 2018-Time Credits: For Implementation of 18 USC 3632 (d)(4). This change allows credits for people with detainers which was inevitable because of the litigation around the country because of the BOP’s creation of a restriction that was not in the law. It also allows non-citizens to be awarded credit provided they do not have a final order of deportation.

This change resulted in a modification of the computer application and DSCC staff were reportedly working on a Sunday that weekend processing computations for immediate releases. I had anticipated the detainer change this for a while but not the non-citizen issue.  Last week, I was informed some non-citizens who received time credits had their release date changed, then changed back again.

The non-citizenship issue is a bit more nuanced since the BOP discontinued the ICE related CMA computer assignments (Case Management Activity) back in 2017. Two of the assignments involved the Institution Hearing Program (IHP) and were keyed for people that had a final order of deportation. I am going to assume they are going to, or have already, reactivated the assignments to track credit eligibility. This negates the benefit of an IHP designation unless the federal sentence is short because the amount of FTC earned would most likely be more than the time spent in ICE detention prior to deportation.

Most justice professionals are aware of the IHP which is a program started decades ago to afford non-citizens a deportation hearing prior to the statutory release date. Before that, most non-citizens stayed in custody months after their statutory release date for processing as “Detainees”. I was always suspicious of the private prison industrial complex who had a vested interest in profiting from detainee incarceration because of the nepotism that occurs with BOP administrators looking for retirement landing spots with their “Daddies” in the private corrections industry. With the current administration’s initiative to discontinue private contracts, that leads to another bigger issue now going on within the BOP.

Thousands of non-citizens were transferred to the BOP from private contracts in the past two years. While many of these non-citizens have security points (<11) commensurate with minimum security, they are being housed in Medium security , FCI’s as population filler in remote places like FCI Berlin and the recently closed “Drop Yard” at FCI Otisville. This influx was aggravated by reductions in the target populations at low security facilities due to Covid-19.

The “Alien” public safety factor automatically precludes a minimum “camp” designation regardless of the security points. It is allowable, but questionable that the BOP is using their discretion to house low security offenders in a medium environment, especially for prolonged periods. The classification manual enables the agency to apply various “management variables” to designate a person above (or below) their scored classification. They have been exercising this discretion for “Population Management” purposes to house non-citizens and others in medium facilities. That specific management variable expires between twelve to eighteen months. However, I have seen people remain in a medium facility longer because it can be extended by the DSCC, even if the facility recommends a transfer.

I continue to receive complaints from people who report they are CARES ACT eligible but are not being referred. Those who believe they have met the time requirements (25%  & 50 %) and other eligibility should assume they were denied. It would be practical to immediately exercise the administrative remedy process in combination with an electronic cop out requesting the reason for denial. The BOP is on record that a person is automatically reviewed and does not need to apply for CARES ACT. I have not yet heard of any internal guidance in processing future referrals since the government announced the end to the emergency conditions.

This week, I noticed the PATTERN (Version 1.03.00) form has been updated to include a list of “ Worksheet Details” which includes SENTRY  EDC and DRG category codes. I need to take a deeper dive into it, but I see some inconsistencies in the coding of the data. Since the very beginning of  PATTERN implementation, there has been inconsistent practices on disclosure which has yet to be clarified by the BOP Central Office. In my opinion, the data does not meet the criteria for it to be filed in the Privacy Folder because all the data points come from other disclosable documents, mainly the BRAVO (BP-338) classification assessment.