Continuing from Blog #5, Part I, ” How to Fight for Your Credits”, with specifics on the various BOP issues potentially limiting your receipt of credits:
Transition Date from earning 10/days per month to 15/days per Month under the FSA
Apparently, as I’ve been told, the BOP’s software for this topic was implemented with an administrative interpretation different than the FSA law. The FSA and related BOP Policy Statement says” maintaining a low risk of recidivism over 2 consecutive reviews”, i.e. 180 days. An inmate gets their first assessment within their first 30 days so one would expect month 7 , their second review, would be the start of 15 days/month. However, the software waits until the third review(365 days), as both my Case Manager and head of Units here at Lompoc attest. The logic apparently is for the BOP to confirm you actually “programmed” the second six months which makes no sense, as they have the same issue every six months they review for the life of your sentence. If not programming you should earn zero for that six months, not 10 days anyways, so how does extending from 10 to 15 days/month by six months matter anwyays? The courts, with BOP agreeing in the ruling, have ruled it begins Month 7 as well. See Chun Mei Tong vs. Estella Derr, No: 22-0043-JAO-WRP. So as I’m doing now, one has to start with the Administrative Remedy Process, and then file a 2241, citing that case and others that are out there.
Maximizing Halfway House Time /Home Confinement(“Precustody Release”)with Earned and Projected FTC’s and SCA Benefits
There are three dynamics at play here:
1. The FSA was drafted with at least 3 contradictory provisions inside it
– FSA’s goal is to reduce sentence time and maximize home confinement as it states
– You earn FTC’s your ENTIRE total sentence, during BOTH prison and halfway house/home confinement
– Can’t start halfway house/home confinement unless FTC’s are already earned from prison time served,( PROJECTED credits earned during pre custody release don’t count).
This last bullet makes ALL the FTC’s earned during halfway house/home confinement not usable and significantly increases percent of total sentence time you remain in prison as a result, as they are not taken into consideration for your transfer date and thus delay the transfer date. This could impact up to 30% of your time of sentence served in prison, so its not trivial.
2. Now 6 years since FSA implementation, BOP has insufficient halfway house space as FTC credits have been earned, and rather than send inmates to home confinement when initially eligible for transfer to any type of precustody, it uses “lack of bed space” as a reason to delay transfer to halfway house and not even offer home confinement as an option
3. BOP’s staff has 100% discretion around SCA ‘s length of home confinement, with criteria to use but no policy around determination of time, so up to Case Manager each time and very inconsistently applied
So as you see, all 3 make this is a big risk area for inmates to not receive the full benefits they are due and therefore spend a greater portion of their sentence in prison.
I believe the BOP is aware of all these issues, has delayed for several years providing more visibility to case managers and inmates information to be more fully informed, but is now slowly changing. Just recently they announced that inmates will receive, during their semi annual TEAM meeting, a record of projected credits and projected SCA benefit which is a wonderful step forward. However, until the 3 inconsistencies of the FSA are addressed in #1 above, and BOP modifies its behavior on bed availability and issuance of SCA benefits, nothing will really change. BOP has recently restated to all inmates it will continue relying on needing 100% earned credits, not projected credits, in determining half way house/home confinement start date.
Hopefully someday the “projected credits” earned in pre custody release will eventually be treated like the Good Time Credits have now become. Initially GTC’s were also earned monthly/ along the way, and created unfair “Usage/loss of usage” issues like we see with FSA “projected credits”, and recently were changed to be earned upfront subject to forfeiture for disciplinary reasons. This makes sense and is fair as it gives full benefit for good behavior less any bad behavior time reduction. Just as it would be in the outside world.
Congress and the Courts should change or interpret the FSA the same way for FTC’s. This will ease the calculation complexity for case managers, reduce their workload, and simplify the calculation for transfer date to total earned over life of sentence at time of transfer to pre custody release. Of course these FTC’s should always be reduced due to bad behavior and lack of programming just as now, and one could be returned to prison if needed, like it works now as well.
Until resolved, there are 3 key issues to pursue with the Administrative process and 2241:
* challenge FSA law inconsistency
* seek precustody transfer date to include projected credits, regardless of bed availability
* seek 6 months pre custody thru SCA incentive
Court cases that might be helpful here are:
* Ramirez vs. Phillips :WL 8878993 at *4(E.D. Cal.,Dec.22,2023)- addresses bed availability issue- rules Section 3632(d)(4)(C) of FSA uses “shall” as opposed to “may transfer”. There is no discretion to transfer per this ruling. Numerous other cases also confirm this if you research it.
* cases beginning to show up challenging inconsistency in FSA and issuance of home confinement benefit from SCA
– recently a legal newsletter suggested if one suggests minimal or no SCA, you can challenge the BOP Policies under APA, 5 U.S.C. Section 706, arguing the policies were promulgated without empirical support and without a sufficiently articulated rationale. Under Section 706(2)(A), the APA requires courts to “hold unlawful and set aside agency action,findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not accurate in accordance with the law”. With the new Loper decision, your chances have only increased, per this newsletter.
* cases beginning to show up requesting pre custody transfer based on “projected credits” under FSA
– the argument for judges is that the FSA law itself is contradictory and the provision around earned credits inconsistent with the intent of Congress for shorter sentences and longer periods of home confinement as cited in the FSA.
As with all the above, you will need to follow the BOP’s Administrative Remedy Procedures first before pursuing them in a 2241 process. Your attorney can assist you with more clarity if you have an issue here.
In summary, please share your thoughts, ideas and even cases below for others so we can all help as much as possible!
Now that you better understand the Incentives and potential issues to benefitting from them, the next blog will show a simple calculation for you in determining your earliest transfer date to pre-custody. BJ
