Now that you’re settling in to the BOP at your location, its time to do an in-depth review of Incentives available to you to shorten your sentence and increase, as a percentage of your overall sentence, your length of time at either a halfway house or home confinement time.
For some reason, an overcrowded, understaffed BOP works to delay transferring inmates to halfway houses or home confinement, further adding to their own understaffed burden. I don’t truly understand why, though my guess is its a long time cultural, historical issue of certain Wardens and their staff. They experience 70% recidivism, so it likely creates a mentality of ” why rush release of these “losers” when they will just be back here anyways?” I don’t necessarily fault them for that logic based on what I’ve experienced, but its not in synch with the mission and objectives of the BOP’s fairly new CEO, Collette Peters. She has laid her mission out for BOP and every other constituency. Therefore, YOU have to challenge the system for your credits if you want the full benefit of sentence reduction and maximum time in halfway houses or home confinement. The buzzword is “self advocacy”, an important virtue to succeed in prison regardless of the topic!
I was confused myself about all these Incentives prior to surrendering, and its taken me a good 9 months to begin to understand. So here is an overview of what I believe is important. What makes this entire topic way more difficult than it needs to be is that the BOP has been intentionally opaque for some reason I don’t understand, and there aren’t books or resources easily accessed otherwise. Even when we access BOP Program Statements regarding Incentives online here they are outdated.
This may be changing with the recently passed Congressional law putting a Board of Directors in place for BOP, having Office of Inspector General inspect and rank each location’s performance, and establishing an office of Ombudsman for you or your family and attorney and even BOP staff to call/fax and provide issues or concerns. If you have an issue you need help with, apparently you can call the Ombudsman at 202-307-2266. I’m slowly seeing evidence of change here as well, so hopefully this trend will continue!
To begin with, your total sentence includes 2 parts- incarceration/prison and pre release custody into either a halfway house or home confinement. Various credits apply to some or all of these as I’ll explain below.Following all this is supervised probation of some type generally, often for three years.
There are three main Incentive Programs :
* Good time Credits-(GTC’s)- automatic 15% reduction off your total sentence the day you report to your BOP facility or are detained. It can be reduced over time for disciplinary reasons, like 27 days for a minor rule infraction or 54 days for a harsher penalty based on the infraction.
* Second Chance Act-(SCA) Originally established in 2007, renewed as part of the First Step Act in 2018, it allows up to the last 12 months of your sentence to be in halfway house or home confinement. The SCA is 100% discretionary by the BOP staff, though Congress’s intent was for it to be used to allow inmates to prepare for release in a lengthy enough period to be adequate. The BOP generally follows a rule in the Act limiting it to the lower of 10% of your sentence or 6 months fyi.
* First Step Act-(FSA)- As long as you are eligible and “programming” you earn 10 or 15 days / month towards time in a halfway house or home confinement. However the first 365 days you earn go toward a 12 month reduction in your sentence beyond the reduction above with GTC’s, with the remainder of these credits applied to time for halfway house/home confinement. Each day is a Federal Time Credit or FTC as they are referred to. Additionally FSA has a couple programs like Residential Drug and Prevention(RDAP) which provide one year off your total sentence upon successful completion. At 15 days/month, that’s effectively 6 months per year of your sentence with some limitations I will explain later.
There are many challenges to an inmate receiving the totality of ALL their incentives. Some are because of how the laws are written, most from the BOP’s inconsistent interpretation of the laws into their Policy Statements for Case Managers to follow. And some from Case Managers bias or lack of knowledge/training in their recommendations.
The areas of BOP issues to familiarize yourself are as follows:
* eligibility for FSA program
* start date to begin earning FSA credits
* transition dates from earning 10/days month of First Step credits to 15/days month
* ability to use 100% of earned credits and “projected to earn credits” during halfway house time
* total time you should receive in halfway home or home confinement from a combined SCA and FSA benefit
This next section I will address specifics for each BOP issue above. If any of you find other areas of concern, or additional remedies than what I suggest below, please share them!
Eligibility
The FSA has a long list of ineligible offenses, mainly gun, violence, and sexual offender related.
You may have multiple sentences where one sentence is eligible and one is ineligible. Unfortunately, under the APA(Administrative Procedures Act), the BOP will deem everything one ” combined term of imprisonment” for administrative purposes. In effect the BOP policy and courts have ruled even an eligible offense when combined with an ineligible offense is not eligible and thus the entire time of all sentences is therefore ineligible. I’ve seen this a lot in drug cases with a 924(c) gun offense.
Inmates are beginning to challenge this “combined term of imprisonment” administrative rule(drafted in 1980!) now that Chevron deference has been recently over turned by the Supreme Court with its Loper ruling. Some inmates now argue that between Congress’s intent as spelled out in the First Step Act statute, and the fact that the FSA is based on eligible sentences, not offenses, they are unfairly treated due to an administrative rule that could now be ruled ” inconsistent with the statute” by a court. Previously the courts were limited on ruling against the BOP position due to the Chevron deference, but not any longer. If you purse this, you must start with the BOP Administrative Remedy process(cop outs thru BP-11) followed by Form 2241 which should be the proper form for filing with the District court in your BOP facility location , not your sentencing judge. You can file through your attorney or by yourself if no attorney(pro se).
Start Date to Begin Earning FSA Credits
The BOP has a policy stating the start date is when you arrive at a ” BOP designated facility.” The FSA statute doesn’t state that, and numerous courts have been ruling recently that it begins with the date you are detained post sentencing. This means if you were in jail/prison at sentencing, it begins then. Or self surrender date.
For some reason, BOP policies are very slow to be updated, so case managers continue to operate from policies which don’t reflect current court rulings. BOP Policy Statement 523.42 vs FSA Section 3632(d)(4)(B)(ii) is a case in point. As such, you will likely be needing to challenge your start date if you didn’t self surrender and were detained at sentencing. This also will require following the BOP Administrative Remedy Process followed by a Form 2241 filing if necessary. Cases of interest for this filing would be:
* Austen Yufenyuy vs. Warden FCI Berlin, No: 22-cr-443-AJ (2023)
* Wobiao Lei vs. Howard c. Barron, No:2:23-cv-01505-BJR-TLF(April 2024)
See the next Blog for continuing to understand BOP issues limiting receiving the credits you deserve. BJ
