As a federal defense lawyer, it is necessary to review the BOP’s First Step Act Time Credits Policy. This is an important issue to both defendants and their families because such credits can significantly reduce the amount of time served by a convicted defendant.
The latest Time Credits Policy (“Policy”) was issued by the BOP in November 2022. The highlights are summarized below. The Policy addresses and clarifies how “good time” credits will be earned while a defendant is serving a custodial sentence with the BOP. The First Step Act of 2018 can be found at 18 U.S.C. § 3632(d)(4). The Policy first notes that “qualifying” or “eligible” inmates who successfully engage in certain approved activities may earn First Step Act “time credits” that are applied toward prerelease custody or early transfer to supervised release under 18 U.S.C. 3624(g).
The Policy notes that such credits may be earned through “Evidence-Based Recidivism Reduction” (“EBRR”) program. An EBRR Program is a “group or individual activity that has been shown by empirical evidence to reduce recidivism or is based on research indicating that it is likely to be effective in reducing recidivism; and is designed to help prisoners succeed in their communities upon release from prison.” In other words, EBRR programs are those that are designed to make it more likely that an inmate will not continue to engage in criminal conduct after he/she has served a sentence.
The Policy gives a non-exhaustive list of the types of programs that constitute EBRR programs, and they include the following: (1) social learning and communication, interpersonal, anti-bullying, rejection response, and other life skills; (2) family relationship building, structured parent-child interaction, and parenting skills; (3) classes on morals or ethics; (4) academic classes; (5) cognitive behavioral treatment; (6) mentoring; (7) substance abuse treatment; (8) vocational training; (9) faith-based classes or services; (10) civic engagement and reintegrative community services; (11) inmate work and employment opportunities; (12) victim impact classes and other restorative justice programs; and (13) trauma counseling and trauma-informed support programs. The Policy also makes clear that a list of these types of approved EBRR programs are available on the BOP’s website.
The Policy also indicates that other activities, known as “Productive Activities (“PAs”), can earn a BOP detainee credits. A “PA” activity is “a group or individual activity that allows an inmate to remain productive and thereby maintain or work toward achieving a minimum or low risk of recidivating.” The Policy likewise provides a list of non-exhaustive examples of these types of activities, which may include any of the following:
■ Structured, curriculum-based group programs and classes
■ Productive, free-time activities (e.g., recreation, hobby crafts, or religious services)
■ Family interaction activities (e.g., social visiting)
■ Personal growth and development classes (e.g., adult continuing education classes)
■ Institution work programs
■ Community service projects
■ Participation in an Inmate Financial Responsibility plan
The Policy also reinforces the fact that the detainee must be “successfully participating in the above-referenced EBBR programs or PAs. There is some subjectivity in this requirement. The Policy indicates that “successful participation” first requires a determination by the BOP the eligible inmate has not only participated in the EBRR programs or PAs, but has met their requirements. The Policy makes clear that “successfully participating” will not be met in various circumstances, including where: the detainee has been in the SHU; the detainee has been out on an extended absences for such things are medical placement or a writ; or placed in a mental health/psychiatric hold. This also includes situations where the detainee has refused to participate in, or opted out of, a program or activity recommended to them by the BOP.
The Policy further clarifies who is considered an “eligible inmate” that can earn credits. One can be excluded, or be deemed ineligible, if he/she is serving a time for a particular type of offense. This includes those offenses specified in 18 U.S.C. 3632(d)(4)(D). This also includes federal detainees in “state custody.” The Policy indicates that this eligibility determination should be made by his/her unit team. That review should involve a look at the detainee’s prior convictions as well a look at the nature of the offense for which the detainee is incarcerated within the BOP. The list of offenses that make one ineligible to earn credits is on the BOP’s website. These include: a current offense that is deemed to be a “serious violent felony;” a prior conviction where the inmate served a term of imprisonment of more than one year for an offense of murder, voluntary manslaughter, assault with intent to commit murder, aggravated sexual abuse and sexual abuse, abusive sexual contact, kidnapping, carjacking, arson, or terrorism. Those offenses that constitute “serious violent felonies” can be found at 18 U.S.C. §
With regard to the actual earning of First Step Act credits, the Policy indicates that the process can only begin after the inmate’s term of imprisonment begins, i.e., on his or her actual surrender date.
The Policy additionally notes that credits cannot be earned during pretrial detention; or for programs or activities that were engaged in prior to December 21, 2018, the date of enactment of the First Step Act.
The Policy also sets forth the all-important “amount” of credits that can be earned. The credits earned are fairly generous, including, for “every thirty-day period that an eligible inmate has successfully participated” in an EBRR or PAs, ten days of time credits. Credits earned also include, for every “thirty-day period that an eligible inmate has successfully participated” in an EBRR or PAs, an additional five days of time credits – assuming certain other criteria have also been met.
Furthermore, the Policy sets forth the limits that are placed on earning credits, as well as the manner in which credits can be either lost or restored.
Finally, the Policy delineates the “administrative remedies” that are available to a federal detainee arising out of disputes with respect to the earning or calculation of credits.
Overall, the Policy nicely addresses, at least in a general sense, many of the issues and questions that a federal detainee and his or her family or loved ones may have with respect to good time credits. It is the hope of defendants and defense counsel that all BOP facilities will act expeditiously to carry out the Policy.
Written by Michael Leonard
Leonard Trial Lawyers
January 2, 2023