Bureau Of Prisons’ Dilemma On First Step Act Credits

The First Step Act (FSA) was signed into law in December 2018. The law allowed prisoners, mostly minimum and low security offenders, to earn a reduction in their sentence for being productive while incarcerated. That productivity is measured by the prisoners’ participation in meaningful programs and having a job while incarcerated. However, nearly five years after the law was enacted, the complexities of the Federal Bureau of Prisons (BOP) ability to comply with the law is still being revealed.

Under the law, the BOP initially measures a prisoner’s risk for both recidivism and violence, this is known as a PATTERN score. To be eligible for the program’s benefit of a reduction in sentence, the prisoner’s PATTERN score must be either minimum or low. Further, if the prisoner is eligible for FSA credits to be applied to reduce their sentence (note: there are 68 crimes that are excluded), he/she can earn 10 days of FSA Earned Time Credits for every 30 days of programming. After the prisoner’s second PATTERN score, usually 6 months after entering prison, they can earn up to 15 days of FSA Earned Time Credits.

The real change to FSA occurred in January 2022 when the Final Rule for FSA was published in the Federal Register. This rule clarified that prisoners could apply their FSA Earned Time Credits to be used to actually reduce the sentence or could be used for additional home confinement time. The result was that thousands, mostly minimum security prisoners, were released.

In many cases, at sentencing, the prisoner is in custody and resides at either an administrative facility or is held in a county jail until a final designation is determined by the BOP to serve out their sentence. Often, the time between when the sentence was imposed and when the prisoner arrives at the designated institution can be weeks, or months, or many months. Transporting prisoners is the responsibility of the US Marshals service working in conjunction with the BOP.

According to the BOP’s own program statement, it states when a prisoner begins to earn FSA Earned Time Credits:

“When an eligible inmate begins earning FSA Time Credits. An eligible inmate begins earning FSA Time Credits after the inmate’s term of imprisonment commences (the date the inmate arrives or voluntarily surrenders at the designated Bureau facility [emphasis added] …”

A decision in a federal court in New Hampshire has upended this definition of when FSA Earned Time Credits begin, and it could lead to thousands of prisoners getting tens of thousands of credits that could reduce their time in prison.

On June 9, 2021, Austen Yufenyuy was sentenced to sixty-six months in prison. After being sentenced, Yufenyuy was transferred between facilities in Maryland, Oklahoma and Texas before finally arriving at FCI Berlin in New Hampshire on April 6, 2022, nearly a year later. This is not atypical for prisoners to endure months of being shuffled before arriving at their designated facility. It should be noted, that many prisoners, particularly those who have non-violent offenses and have been compliant with court instructions are allowed to voluntarily surrender to prison after sentencing.

Yufenyuy did not have any infractions during his nearly year of prisoner transport and he participated in what few programs that were available. So when he got to FCI Berlin he was perplexed as to why he did not receive FSA Earned Time Credits for the time he was in federal custody but before arriving at his designated institution. Yufenyuy filed a lawsuit in New Hampshire stating that his civil rights were being violated and on March 3, 2023, United States Magistrate Judge Andrea K. Johnstone (District of New Hampshire) agreed and ordered that those FSA Earned Time Credits that occurred while in transport should be awarded to Yufenyuy. The following day, Yufenyuy was released from the BOP. It would make one think that it is pretty clear that the law is now that those credits for thousands of other prisoners who want credits prior to arriving at their final designation should be treated the same way, but you would be wrong.

The BOP is standing by its current program statement, and there is good reason for it do so. The BOP can only award credits to those prisoners who are eligible and they must measure that they participated in meaningful programming, neither of which is possible if the prisoner is not in a BOP designated facility. According to the BOP, who is in the midst of rolling out a new calculator to assess future FSA Earned Time Credits, “… With regard to the case referenced, we have no plans to making a policy modification at present. Staff are aware of the case. When an offender is in holdover status, they are in the custody of the USMS, not the Bureau of Prisons. Accordingly, there is no PATTERN or Needs Assessments or review for FTC eligibility. They do not become a Bureau inmate unless they arrive at their designated facility and then, participate in Initial Classification which include the various FSA assessment activities.”

In her decision, Judge Johnstone used, and the parties to Mr. Yufenyuy’s case agreed, to a two-step test set forth in Chevron USA, Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 842 (1984), which simply found “A government agency must conform to any clear legislative statements when interpreting and applying a law, but courts will give the agency deference in ambiguous situations as long as its interpretation is reasonable. Judge Johnston wrote “Under step one, we must determine whether Congress spoke clearly to the precise question before us. If so, that is ‘the end of the matter.’ If not, then we move to step two, where we defer to the [federal agency]’s interpretation of the statutory provision if it is reasonable.”

In step one, Judge Johnstone stated that under the FSA law “A prisoner may not earn time credits under this paragraph for an evidence-based recidivism reduction program that the prisoner successfully completed – (i) prior to the date of the enactment of [the FSA]; or (ii) during official detention prior to the date that the prisoner’s sentence commences under section 3585(a) [emphasis added].” However, the BOP’s Final Rule on FSA states that credits can only be earned once the prisoner arrives at the designated facility. So clearly there are two different times when a person can start earning, 1) when the sentence commences (FSA Law) and 2) when the prisoner arrives at the designated facility (BOP’s determination of when to award credits).

However, Judge Johnstone stopped her Chevron analysis at step one saying in her Order, “Here, the date established by the plain language of the FSA upon which Mr. Yufenyuy was entitled to begin earning FSA time credits is June 9, 2021 [date of sentencing]. The regulation’s definition of a different date is contrary to the express language of the FSA. The respondent’s [BOP’s] interpretation of Mr. Yufenyuy’s eligibility for earning time credits under the FSA … is not entitled to deference.” The BOP agreed with the Order, gave Mr. Yufenyuy those credits and he was released from the BOP.

The BOP made some exceptions during the early days of FSA implementation that allowed the BOP to deviate from the its own program statement to allow many inmates to earn FSA Earned Time Credits even though they may not have participated in any classes. There was a retroactive part of the Final Rule that allowed “… Eligible inmates will be afforded a presumption of participation for the period between December 21, 2018, and January 14, 2020 and be awarded Time Credits.” This seemed logical, and fair, since the BOP had issues, particularly during COVID-19, to even provide the proper programming to comply with the program. So there was some flexibility provided by the BOP and the Department of Justice to implement the law and treat prisoners fairly.

However, what about the thousands of other prisoners, likely tens of thousands, who were sentenced and have months of time in transit getting to their final designated facility? They are currently not getting those credits and the sole beneficiary of those credits is Mr. Yufenyuy because he won his lawsuit. Prisoners who have a disagreement with the BOP have access to an administrative remedy process to air their grievances. However, those in the chain of command at the BOP who would review those grievances have no authority within the BOP to award these credits as it deviates from the BOP’s own Program Statement, which remains unchanged since the decision on Yufenyuy in March 2023. Currently, the only solution is for every prisoner who has this situation is to exhaust the administrative remedy process, something that could take 6-9 months, and go to court to find a judge who agrees with Judge Johnstone, which could take months more.

The BOP is in a bad position in that it can either follow the law, which is flawed, because it has no mechanism to measure success under FSA (classes and work assignment) for prisoners not in their custody at the final designated facility. The alternative is that the BOP can follow a judgment from a federal court and award credits to prisoners who have not complied with the programming requirements of FSA.

One solution, or compromise, would be to get prisoners to their final destination in less time, but that does little to those who went through lengthy transportation nightmares getting to their designated facility. However, even that is outside of the BOP’s power as transportation of prisoners falls under US Marshals. Another is for the BOP to provide some programming, even a manual, to give to prisoners immediately after sentencing to start the FSA programming and to provide some sort of PATTERN assessment soon after the prisoner is sentenced. All of these solutions are outside the control of the prisoner who must serve the time with no means to correct the situation other than going to court.

The BOP could change its FSA Program Statement right now to comply with this New Hampshire decisions but it has not and it is likely trying to assess how it can comply. However, the BOP did not appeal the Yufenyuy decision, so many prisoners remain in limbo on this issue. The result is that the FSA continues to experience problems in its implementation and the prisoners and their families are the ones paying the price.

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