The First Step Act-Earned Time Credits
Part 1 – Introduction
BY MAUREEN BAIRD, MARK ALLENBAUGH AND ALAN ELLIS
The First Step Act (FSA), passed on December 18, 2018, is a sentencing reform law that directly impacts offenders serving a federal prison sentence in the custody of the Bureau of Prisons (BOP). It was intended to reduce overly punitive sentences as well as improve conditions within the BOP by reducing the inmate population. It achieves this by providing additional ways for certain defendants to avoid being sentenced to an otherwise mandatory minimum sentence. It also provides most inmates with the opportunity to essentially reduce their sentence by successfully completing certain programs designed to reduce the likelihood of recidivism. Such successful completion provides the inmate with FSA Earned Time Credits (ETCs).
To be eligible to earn ETCs, inmates must (1) have a minimum or low Pattern Score (FSA’s risk assessment tool utilized by the BOP), and (2) not have a conviction for a disqualifying offense (terrorism, espionage, human trafficking, sex offenses, and other crimes determined to be violent). Additionally, inmates must be eligible for pre-release custody, such as halfway house or home confinement; therefore, deportable non-U.S. citizens will not qualify for ETCs. A comprehensive list of disqualifying offenses can be found in FSA Law, Section 101, subsection 3632(d)(4)(D), Ineligible Prisoners.
Eligible inmates can earn ETCs by participating and successfully completing specific BOP programs and/or work assignments. ETCs are calculated at the rate of 15 days for each 30 days of consistent programming. ETCs can be applied toward extra community-based programming (halfway house and home confinement), or toward the end of an inmate’s sentence. In addition to an earlier release from BOP custody into community-based programs (such as halfway houses), inmates may be eligible for an earlier transition to their term of Supervised Release if applicable (up to 12 months earlier). Prior to the FSA, inmates were only eligible for up to 12 months in a halfway house and home confinement for six months, not to exceed 10% of sentence, whichever was less. The Earned Time Credits will now allow inmates to be released to a halfway house and/or home confinement earlier than what was allowed previously. Of course, without ETCs, the maximum amount of time for home confinement under the FSA remains at 6 months or 10 percent of the sentence, whichever is less.
Inmates with a medium or high Pattern score, non- U.S. citizen offenders, and those with a disqualifying offense, however, are not eligible for ETCs. Nonetheless, they may be eligible to earn other incentives through work assignments and participating in certain programs such as extra visits, additional phone or email minutes, and extra commissary benefits and privileges.
There are several additional sentencing reform components included in the law; however, the above information addresses the most posed questions regarding the ETCs of the FSA.
Unfortunately, the FSA does not appear to be consistently enforced. As the trend chart illustrates below, on January 13, 2022, the BOP began releasing thousands of prisoners to Residential Reentry Centers (halfway houses; orange line) and on home confinement (gray line). Within a week, the RRC population was reduced by over 4,000, and the home confinement population was reduced by over 3,000. But after January 19, 2022, the populations of both have remained rather steady; in fact, the RRC population has slightly increased perhaps due to ETCs being awarded.
During the same period of time, the number of inmates incarcerated within BOP prisons (blue line) has barely been reduced, while that population remains close to the highest it’s been since early 2021.
This is particularly dangerous in light of the current pandemic inasmuch as the BOP facilities remain over their rated capacity, as illustrated below.
This overcapacity undoubtedly has contributed to the unprecedented number of COVID-19 inmate deaths. As the graph below illustrates, from 2001 through 2018, there were only 102 inmate deaths by accident, 182 by homicide and 167 from AIDS. In contrast, in less than two years, COVID-19 has killed at least 285 inmates (not including 7 staff and 18 inmates in private facilities).
© Maureen Baird, Mark Allenbaugh and Alan Ellis, 2022. All rights reserved.
About the Authors
Maureen Baird, formerly a high-ranking U.S. Bureau of Prisons’ official, is a consultant with The Law Offices of Alan Ellis. Her experience in federal corrections began as a case manager with the Department of Justice, Federal Bureau of Prisons. Through her 28 years with the Agency, she continued to acquire positions of increasing responsibility. In 2009, Maureen was appointed to the position of Warden at the Federal Correctional Institution, Danbury, Connecticut, and was later promoted to Warden at the Metropolitan Correctional Center in New York City. There, she was appointed to Senior Executive Staff by the United States Attorney General and within two years, she was transferred to a position of greater responsibility as the Warden of the United States Penitentiary in Marion, Illinois. As warden, Maureen was responsible for the leadership and direction of 300 to 350 staff members and approximately 1,200 to 1,500 inmates. During her tenure as warden for seven years, she was responsible for staff development and various specialized inmate housing units, including a high security management unit which mainly housed international terrorists who were assigned maximum custody. She can be reached at moiep1228@gmail.com.
Mark H. Allenbaugh, a sentencing and mitigation consultant with the The Law Offices of Alan Ellis, is a nationally recognized expert on federal sentencing, law, policy and practice. He heads up the firm’s COVID and the BOP task force. He is a co-founder of Sentencing Stats, LLC, which provides attorneys and their clients with expert statistical analyses of federal sentencing data and trends. He has served as co-chair of the Sentencing Committee for the National Association of Criminal Defense Lawyers; chair of the Federal Sentencing Guidelines Task Force for the D.C. Chapter of the Federal Bar Association; and as a non-voting member of the U.S. Sentencing Commission’s Practitioner’s Advisory Group, and a member of the ABA’s Corrections and Sentencing Committee. He can be reached at mark@sentencingstats.com.
Alan Ellis, past president of the National Association of Criminal Defense Lawyers and Fulbright Award recipient, is a nationally recognized authority in sentencing, prison matters, appeals, 2255 motions and international prisoner transfers for foreign inmates with offices in San Francisco and New York. He has been practicing law for over 50 years. He is co-author of the Federal Prison Guidebook: Sentencing and Post-Conviction Remedies. He also publishes three quarterly e-newsletters with a combined readership of over 18,000 judges, lawyers, prosecutors and U.S. Probation Officers: Judicial Updates: Views from the Defense, White Collar Updates and Alan Ellis’s Updates. He is a sought-after lecturer in criminal law education programs and is widely published in the areas of federal sentencing, Bureau of Prisons matters, appeals, Rule 35 and 2255 motions, with more than 180 articles and books and 85 lectures, presentations and speaking engagements to his credit. He can be reached at aelaw1@alanellis.com.
To be continued: Part 2 – How It Works
By Alan Ellis