As is customary, the BOP is generating more confusion around its implementation of the First Step Act, Second Chance Act, and how time credits will be applied to halfway house placement and home confinement through two conflicting memos. Are we finally moving in the right direction? Let’s break down what was said.
William K. Marshall’s Internal Memo
A recently issued internal memo by William Marshall, the latest director of the BOP, has created confusion around time credit application via the First Step Act (FSA), the Second Chance Act (SCA), and how it applies to halfway house and home confinement. Some of the language contradicts the public facing press release from May 28th, which offered a blanket sentiment that the BOP should maximize the use of home confinement wherever statutorily possible, and reserve the use of RRC for those with the greatest need.
It also outlined that staff (case managers) are to calculate conditional placement dates for inmates according to the Federal Time Credits (FTC)s they are expected to earn, and to distinguish between FSA and SCA eligibility and apply such criteria accordingly.
Then, there’s the internal memo. According to this, if 365 days have been redeemed toward RRC placement, you can not stack SCA required minimums on top. But, there’s still an unlimited amount of FTCs that can be applied to halfway house or home confinement. What’s this all mean?
Let’s take a 10 year prison sentence for a low or minimum recidivism risk per his PATTERN score, as an example. After the first 60 days earned, which accounts for the first 6 months in which you earn 10 days a month, this fictional inmate will earn nearly five years of earned time credits, or federal time credits.
The first 365 days will be applied off his entire sentence – towards the door.
The remaining FTCs will be conditionally applied to halfway house and/or home confinement, getting him closer to the free world sooner and home with his family.
So, the SCA doesn’t make a meaningful difference in this case. Who does the SCA make a difference for?
The answer is those who do not benefit from the First Step Act – anyone charged with the 68 offenses prescribed in the legislation, from 924(c)s to sex offenders and those with domestic terrorism charges, etc, along with the medium and high recidivism risk offenders.
Internally, based on conversations with others and those we’ve met in seminars and public policy initiatives, they are working on ensuring the medium and high risk offenders get their 10 days per month FTCs earned as is prescribed in the legislation.
There are a few important things to note from all this. One, there is no cap on the FTCs to be applied to RRC and halfway house placement. This is a very positive sign that the prison system is evolving into one that embraces aspects of community confinement.
Second, now that this public-facing memo exists, this is the guidance that courts will consider when the BOP fails to follow its own directives. If you come out on the losing end of these contradicting memos, this public-facing memo, the one more favorable to inmates, is what attorneys, advocates, and post conviction experts can use to fight for your case.
You can’t have a law that the public follows and then an internal memo that says, “nope, it’s actually a different policy,” and win that case in court. On this front, the BOP is setting itself up to lose.
Unfortunately, to really win in the BOP, you often do have to take these matters to court.
But, this is finally a step in the right direction, so many years after the FSA was signed into law. It shows that William Marshall is actually cognizant of what the legislation says, in both the spirit and letter of the law. Make sure you’re following the Federal Prison Tips TikTok to stay updated to more stories like these.
