The Supreme Court just handed down an important decision on how federal agencies interpret laws by Congress. One of those agencies, the federal Bureau of Prisons (BOP), writes program statements that interpret the law regarding punishment (sentences) imposed by the courts. Two of those are the First Step Act and Second Chance Act, which have been interpreted by the BOP in such a way that has led to prisoners being kept in institutional housing for far longer than Congress had intended when the laws were passed. The Supreme Court ruling might change that.
The “Chevron deference” is a judicial doctrine created by the 1984 U.S. Supreme Court ruling Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. This ruling compels courts to defer to a federal agency’s interpretation of ambiguous language in statutes that the agency is tasked with administering.
In theory, the deference allows agencies to implement complex statutes. In practice, it limits the judiciary’s proper role in holding the other two branches of government responsible for carrying out and sticking to their constitutional duties. One result is too much discretionary power exercised by agencies who were envisioned to enforce, rather than create, the law.
Some argued that the concentration of power placed in the executive branch by Chevron deference leads to excessive, overreaching regulation by agencies with wide latitude to essentially set policy. The primary agencies affected have been noted as being the Environmental Protection Agency which oversees the Clean Air Act and U.S. Fish & Wildlife Services’ interpretation of the Endangered Species Act.
In 2018, President Trump signed the First Step Act which allowed mostly minimum security prisoners to earn time credits to reduce their sentence by up to a year and to earn additional credits toward home confinement as part of their sentence. The law enjoyed overwhelming support from Republicans and Democrats at a time when Trump had a difficult time signing any meaningful legislation. The purpose of the law was to both save money and return prisoners to society sooner. While the BOP has implemented First Step Act, it has not been without challenges and many prisoners have remained in prison far longer than the law allows.
Prisoners have gone to court to have their sentences reduced in light of the BOP’s calculations, and some have won. A New Hampshire federal court actually defined when a prisoner begins earning First Step Act credits. 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.
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. The BOP did not appeal this decision, nor has it changed its program statement to allow prisoners who have been sentenced but have not arrived at their final designation to earn FSA credits.
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). So even with Chevron being the law, the BOP came out on the losing end.
With the Second Chance Act, signed by George W. Bush, allowed prisoners to also spend up to one year of their sentence in prerelease custody (halfway house and home detention). Home detention was limited to 6 months of the sentence or 10% of the sentence imposed. However, halfway houses are now at capacity according to the BOP and many prisoners are getting little or no prerelease custody. With Second Chance, the BOP has discretion over how much time, if any, a prisoner gets. However, like the First Step Act, Congress’ intention was to push more people out of federal prisons and back to community settings that are still very much part of incarceration experience.
This decision also comes at a time when Congress is asking for more oversight over the BOP, an agency beset by challenges of staffing shortages, crumbling infrastructure that needs billions for repairs and morale among employees that puts the BOP dead last in employee satisfaction among government agencies. U.S. Senator Jon Ossoff’s bipartisan bill to strengthen Federal prison oversight passed the U.S. House in May 2024. The bipartisan Federal Prison Oversight Act would establish new, independent oversight of the BOP. It passed the U.S. House in an overwhelmingly bipartisan vote and now heads to the U.S. Senate.
Sen. Ossoff first introduced the bipartisan bill in 2022 after leading multiple bipartisan investigations into corruption, abuse, and misconduct within the Federal prison system, uncovering a lack of oversight of the Federal prison system that led to long-term failures likely contributing to loss of life; jeopardizing the health and safety of incarcerated people and staff; and undermining public safety and civil rights.
The Chevron ruling will certainly prompt more lawsuits against the BOP in the coming months as prisoners will simply be asking for what Congress intended them to have … less time in prison.
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