EARLY RELEASE POSSIBILITIES
Below is a list of Federal Bureau of Prisons (BOP) Programs and Government Acts that have the ability to reduce an eligible federal inmate’s sentence by way of a prison term reduction through direct time off, community custody and other related programs or methods.
THE 500 HOUR RESIDENTIAL DRUG ABUSE (RDAP) PROGRAM
RDAP was created by Congress pursuant to 18 U.S.C. § 3621 offering residential substance abuse treatment. It authorizes the Federal Bureau of Prisons (BOP) to reduce the prison sentences of non-violent offenders by up to one year. The voluntary program requires 500-hours, over roughly nine to twelve months to fully complete. It is available to all eligible federal inmates if they fulfill all of the requirements for program entry listed below.
Program Eligibility Criteria:
POSSIBLE PRISON TERM REDUCTIONS
By Federal law, inmates in federal prison may not receive more than 1 year off their sentence for successfully completing the RDAP Program. The amount of time off an inmate is eligible to receive is determined by the length of their original sentence.
AUTOMATICALLY INELIGIBLE FOR EARLY RELEASE
Additionally, to qualify for RDAP, a federal defendant or federal inmate CAN NOT have any violence or weapon convictions in their past, including domestic violence or crimes involving sexual contact. Those convicted of “Child Pornography” charges may still be eligible for early release provided that they had no physical contact of any sort with minors.
THE SECOND CHANCE ACT
The Second Chance Act (SCA) is a Federal Bureau of Prisons (BOP) program signed into law in August 2008, allowing the BOP to reduce the time of incarceration for federal inmates. The SCA states that it ensures that a prisoner serving a term of imprisonment spends a portion of the final months of their prison sentence (not to exceed 12 months) in a community custody setting such as half-way house or on home confinement or detention and that it will afford the prisoner a reasonable opportunity to adjust and prepare for the reentry of that prisoner to the community. The SCA requires the BOP that, to the extent practicable, an inmate is considered for halfway house placement for up to 12 months, not just up to a maximum of six months or 10% of his time served, whichever is less.
Section 18 USC 3621 of the SCA clarifies the different factors the BOP must use when making decisions on inmate designations, during the pre-release process. Some of the factors the BOP should consider is any statement the inmate’s sentencing court made concerning facility recommendation/designation and their sentence, as well as the circumstances related to the inmate’s offense, and the characteristics and history of the inmate’s incarceration.
Additionally, BOP staff should take into account the BOP Operations Memorandum and Program Statement regarding inmate SCA qualifications. It should also include the accessible halfway house space, the quality of the community and the family and their conduct during their terms in confinement. All in all, these factors are designed to minimize any risk related to recidivism.
FIRST STEP ACT
The First Step Act (FSA) permits eligible inmates to earn additional time off their sentence for participating in and completing approved Evidence-Based Recidivism Reduction (EBRR) Programs. Briefly, for every 30 days of qualifying programming activities, inmates can earn ten days off their sentence. After two six-month risk and needs assessment review periods, this increases to 15 days off per 30 days of qualifying programming activities.
FSC earned time credits are a newer way for inmates to secure an early release from federal prison. The FSA was signed into law by then-President Donald Trump on December 21, 2018, bringing many positive changes to federal prisons. Chief amongst these changes is the FSA earned time credits. As outlined in the FSA, prisoners can earn time credits for participating in productive activities or EBRR Programs. After accruing 30 days of qualifying programming activities, eligible inmates earn 10 to 15 days off their sentence. These credits act much the same way as regular good conduct time, but inmates can add to it instead of receiving the prorated 15 percent sentence reduction for good conduct. These time credits speed up the inmate’s projected release date.
Please note that these earned time credits are only recognized if an inmate is already convicted. Any activities during the pre-trial period do not count towards FSA time credits.
Who is Eligible for Earning First Step Act Time Credits?
The First Step Act time credits program is still developing. The Federal Bureau of Prisons (BOP) has been particularly slow about developing the program and implementing it. In a nutshell, eligible federal inmates may earn additional time credits by participating in Evidence-Based Recidivism Reduction Programs and productive activities. While each is discussed below, it’s essential to understand who qualifies for these credits.
Additional Good Time Credit Eligibility
To qualify for the additional FSA time credits, federal inmates must 1) be convicted under the U.S. Code (i.e., a federal offense), 2) not be convicted of a disqualifying offense, 3) participate in qualifying recidivism reduction programs or productive activities as defined by the Bureau of Prisons, and 4) be deemed minimum- or low-risk per the BOP’s PATTERN risk assessment system. Currently, more than half of federal inmates do not qualify for additional time credits. The FSA earned time credits program is primarily available to inmates convicted of non-violent offenses.
Benefits for Inmates Who Don’t Qualify
On the other hand, most violent offenses automatically disqualify an offender. For instance, homicide, habitual domestic abuse, and terrorism offenses automatically disqualify the offender. The BOP presents a complete list of disqualifying offenses, below. Please note that disqualifying offenses are not always necessarily violent. For example, if an inmate is found in possession or transmission of contraband, they may not qualify for these time credits. Most other non-violent offenders are eligible to earn the FSA time credits.
Disqualified Inmates and First Step Act Time Credits
If inmates receive a medium or high PATTERN risk score, they can still earn benefits, but typically not time credits.
These benefits potentially include:
With this being said, federal prison wardens are permitted to award time credits under the FSA for medium and high-risk inmates. This requires the warden to determine the following:
This alternative path to earning FSA time credits is critical considering the state of the U.S. Department of Justice. While the Fair Sentencing Act of 2010 and the elimination of true mandatory minimum sentencing are steps in the right direction, they don’t go far enough. If our society really wants to reduce prison populations, we must expand FSA eligibility.
What Types of Programs Can Prisoners Participate in to Earn Time Credits?
The BOP divides applicable FSA programs into two categories: EBBR programs and productive activities. Both of these categories allow inmates to earn additional time off their sentences. The key to earning these additional time credits is securing and continuing enrollment in qualifying programs. The BOP has published the FSA Approved Programs Guide (July 2021). This Guide presents all qualifying FSA programs and lists which institutions offer them. All the programs classified as EBRR have been pre-approved by the BOP. The inmate should have been directly assigned to a program after a needs assessment to start earning credits. Faith-based classes and programs may also be classified as EBRR programs or productive activities as long as the BOP approves them.
While the BOP’s Approved Programs Guide should be referenced, the following categories of classes and programs generally qualify for additional time credits:
When Can Inmates Earn Time Credits?
FSA earned time credits can only be earned while in the BOP’s custody. Any qualifying program participation while in county jail, a federal detention center, or pre-trial home confinement does not qualify for time reductions. The technical start date for these credits was January 15, 2020. As such, any programs participated in or completed after this date qualify for credit. Programs completed before this date do not qualify.
How Do the FSA Earned Time Credits Help with Early Release from Federal Prison?
The FSA allows inmates to earn time credits. These time credits can be applied in two ways:
Supervised release is limited to the final year of an inmate’s sentence. However, inmates can still use their credits to transfer to pre-release custody earlier.
Before early release or transfer to a pre-lease facility, inmates must:
FSA Frequently Asked Questions
Federal inmates can lose good time credits under the First Step Act time. Likewise, they can have lost FSA time credits restored. If an inmate violates the Inmate Discipline Program, they risk losing additional earned FSA time credits. Keep in mind that this applies to both earned FSA time credits and regular good conduct time. While the Bureau is permitted to restore lost FSA time credits, it has not yet developed the required policy governing this credit restoration.
While the current good conduct time credit scheme has been in place since 1987, the new FSA did bring some changes to these credits.
Good Time Credits are awarded on the inmate’s first day in custody. These credits apply an effective 15 percent sentence reduction. This credit is for projected future good conduct in prison. All inmates serving a sentence of 12 months and one day or more are awarded this credit. Of course, inmates found guilty of serious prison misconduct can lose this projected good conduct time.
The FSA changed how regular good conduct time credits are applied. Before the FSA, the BOP determined the time served amount to be actual time served, not the entire sentence. After the FSA, the BOP is now required to base these projected good conduct time determinations based on the whole sentence imposed, not the actual amount of time served. So, while inmates previously received 47 days of good conduct time per year, they now receive 54 days of good conduct time per year of the sentence imposed.
Please note that this change was made retroactive. As such, inmates incarcerated before the FSA’s passage receive an additional seven days of good conduct time for past years served in BOP custody.
Both types of credit are beneficial to federal inmates, but there are noticeable differences. For example, regular good conduct time credits apply to all eligible inmates, which is broadly applied to all inmates except those who have a sentence of fewer than 12 months and a day. Federal inmates don’t need to apply or do anything else for these credits. They are automatically applied.
Additional FSA earned time credits are in addition to regular good conduct time credits. Inmates earn these credits by participating in approved FSA programs. So, think of regular good conduct time credits as automatic, while earned time credits under the FSA require participation in specific classes, programs, and other activities.
While many believe that deportable aliens cannot secure an early release from federal prison, this is not true. Deportable aliens can earn additional time credits under the FSA. They are only restricted from expanded halfway house credit.