The Federal Bureau of Prisons (BOP) reported that between 2009 and 2014, nearly 4,500 inmates were classified as “premature release” (either too early or too late). According to a report from the Office of the Inspector General, BOP officials reported that it is highly unlikely that staff errors have resulted in many cases, “and they cannot rule out the possibility … BOP does not always have complete information about untimely The release situation…”.
The consequences of not releasing in time can be serious. Delayed release from prisons deprives prisoners of their liberty, while early release does not meet legal requirements and may also release prisoners who may pose a danger to the community. Delayed release also increases the cost of BOP, but also has the potential to impose significant compensatory judgments on those deprived of their liberty. In the OIG report, they noted that for 152 deferred-release prisoners, it estimated the total cost of the BOP, excluding litigation and settlement costs, to be about $669,814. The BOP is now in a crisis that may be far worse than the previous problem of calculating the appropriate sentence, as thousands of inmates do not receive the appropriate First Step Act (FSA) credits. This will result in prisoners staying for weeks or months after their scheduled, granted release date. BOP even knew this was going to happen.
Once a prisoner is detained, a sentence calculation is made, which is a good time credit of 54 days per year of the sentence sentenced. The date is posted on the BOP’s website so that the prisoner and his/her family can see the exact date when the sentence will be completed. Signed into law by President Donald Trump in December 2018, the FSA allows many prisoners to receive up to an additional year in prison and a significant amount of pre-release detention (halfway and home confinement). These credits (up to 15 days per 30 days of work and program/education) may be significant. That means the difference between rejoining a family a year or more earlier than the FSA. However, reports from across the country say the BOP does not provide inmates with accurate information about their FSA credits and that some are staying in jail longer than necessary.
The FSA is one of the most comprehensive criminal justice reform bills the U.S. government has implemented in decades. It follows the Second Chance Act signed into law by President George W. Bush, which shows that the American public and Congress are moving toward reducing the sentences of many nonviolent and low-recidivism prisoners. However, BOP has been slow to implement the program due to staffing shortages, attempts to address COVID-19 in prisons, and poor leadership.
A statement by BOP’s Susan Giddings in a federal civil case (Northern District of Alabama, 1:22-cv-00294, Stewart v Warden) provides a glimpse into the challenges BOP faces as it attempts to implement the FSA. Giddings is the Unit Management Section Chief in the Correctional Programs Division of the BOP Central Office in Washington, DC. In addition to overseeing the correctional system, she was involved in the development and implementation of BOP’s FSA program. As part of Giddings’ statement for petitioner, prisoner Robert Stewart, she noted that “…for reasons not obvious to me, the petitioner’s FSA credits were actually calculated incorrectly.” If one is wrong , and so do many others. One reason might be that the BOP is currently calculating these FSAs manually.
Stewart v. Worden is very simple. Stewart, a former inmate at Talladega Prison Camp in Alabama serving 21 months for wire fraud, wants the BOP to give him the full amount of FSA credit he deserves. Sure enough, as Giddings said, not only was his FSA credits miscalculated, but there were other issues that were sure to prevent other inmates from earning FSA credits in a timely manner.
According to Giddings’ statement, the BOP has already started implementing the FSA and is “rolling implementation.” On January 12, 2022, the BOP established interim procedures to ensure the timely implementation of the FSA. An interim procedure was established to prioritize inmates eligible for immediate benefit in terms of release or pre-release community placement. These temporary procedures will remain in effect during this initial phase and will continue to await completion of the “Automatic Computing Application” of BOP’s real-time information system called SENTRY and the full integration between SENTRY and BOP’s case management system (INSIGHT). In Giddings’ April 2022 statement, she said she expected BOP to “go live” with its new app “in the next few months.” No firm date was stated.
The problem comes from BOP’s decision to set certain deadlines for manual FSA time credit calculations to “reduce the burden on staff,” another way of saying staff shortages are affecting BOP’s rollout of FSAs. According to Giddings, “Once an inmate’s time credit is calculated, it will not be recalculated again until the automatic calculation system is implemented.” Thus, people like Stewart, whose last manual calculation (Giddings admits to be incorrect) ) was completed on April 12, 2022. This means that the next time Stewart does a new calculation will be after the automatic calculation is implemented, whenever it happens.
Stewart won the BOP case, where the judge ordered BOP to manually calculate his FSA credits every 60 days until he was released. That frequency of counting is not available to other prisoners unless a federal judge intervenes, as he did in Stewart’s case. Stewart will be released on July 22, 2022, as a judge intervenes in the case. If the judge does not make this order, Stewart will be released on October 20, 2022, unless a more automated FSA calculation method is implemented.
Thousands of prisoners could be released under the FSA, but many will be held longer than necessary as the BOP tries to get its computer systems up to speed. As one family told me, waiting for BOP’s new sentence calculator, “It’s coming soon.”