Federal District Court Judge Lorna G. Schofield Ordered the BOP to Fully Calculate and Award FSA Time-Credits
Otisville, New York (DAS Staff) – A federal district court judge in the Southern District of New York has rejected the federal Bureau of Prison’s 18-month rule related to First Step Act time credits. In a pro se (self-represented filing) Brodie argued that Warden Pliler and the BOP were without discretion and required to fully award and apply all his FSA time-credits.
This is another new legal victory for pro se inmates (see e.g., Dyer v. Fulgam, 1:21-CV-299-CLC-CHS, (E.D. Tenn. May. 20, 2022); Lallave v. Martinez, 22-CV-791 (NGG) (RLM), 22 (E.D.N.Y. Oct. 13, 2022); Pillow v. Bureau of Prisons, 4:22-cv-00713 PSH (E.D. Ark. Oct. 21, 2022), against a federal bureaucracy that has been repeatedly criticized by Congress and external stake holders, for its multiple failures to fully implement the FSA time-credit program.
The BOP’s 18-Month Rule
In early September 2022, after more than 8 months of delay and confusion, BOP officials sent a memorandum to inmates announcing several new First Step Act (FSA) time-credits rules that it stated would go into effect immediately. Most troubling among the announced rules is the BOP’s new position that FSA time-credits earned by federal inmates will not apply to early release if an inmate has less than 18 months to serve.
The FSA time-credit program is part of the First Step Act’s structural criminal justice reforms related to inmate re-entry and recidivism improvement. The program (variously called the ETC (“earned-time” credits), or FTC (“federal time” credits) program) allows eligible inmates to earn up to 15 days of time-credit for every 30 days of successful programming. Inmates can use these time credits to reduce the term of their imprisonment and/or to earn extra time to finish their sentence outside the prison, on home confinement or at a halfway house.
The September 2022 memo included several BOP announcements, but one major point of alarm was the new 18-month rule. The rule applies to inmates with short sentences, and inmates who have not had their FTCs calculated until they are within 18 months to the door. The rule states:
“Eligible inmates will continue to earn FTCs toward early release until they have accumulated 365 days or are 18 months from their release date, whichever happens first. At this point, the release date becomes fixed, and all additional FTCs are applied toward [an earlier transfer to a Residential Reentry Center or home confinement] [emphasis added].”
Inmates and advocacy groups immediately pointed out that this “18-month rule” is not supported by the text of the First Step Act, nothing in the law allows BOP restrictions based upon time an inmate is required to serve. Instead, the law makes clear that all eligible inmates are entitled to have all credits earned, and all credits applied throughout the term of imprisonment.
Brodie v. Pliler
Directly challenging this 18-month rule, federal prison inmate Joseph Brodie filed a pro se habeas corpus petition requesting an order form the district court requiring the local ward at FCI Otisville and the BOP to fully calculate and award Brodie’s FSA time-credits, without regard for the new 18-month rule.
The federal judge, Lorna G. Schofield, issued a ruling on November 7, 2022 explaining that under mandatory provisions of the First Step Act, the Bureau of Prisons does not have discretion to withhold or fail to apply FSA time-credits. “When an incarcerated person earns FSA Time Credits, those credits ‘shall be applied toward time in prerelease custody or supervised release,’ and the BOP ‘shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.’ § 3632(d)(4)(C).” Brodie v. Pliler, 22 Civ. 3821 (LGS), 1 (S.D.N.Y. Nov. 7, 2022).
The BOP had defended its actions by arguing it was consistent with the BOP’s January 2022 final rule implementing the time-credit program and explaining how reasonable and practical its new 18-month rule was. But as Judge Schofield pointed out:
“Respondent does not cite, and the Court has not located, any part of the Rule that imposes or authorizes this 18-month cutoff, nor any statutory authority under which such a rule could be promulgated. Respondent argues that the 18-month cutoff is ‘eminently reasonable’ so that an incarcerated person’s release date is not ‘a moving target’ as the BOP tries to prepare for it. That may be so, but the FSA does not grant the BOP discretion to stop awarding FSA Time Credits at a certain point.”
Brodie, 22 Civ. 3821 (LGS) at 5.
The federal court granted Brodie’s request for a writ of habeas corpus and ordered that the warden and BOP staff must fully award and apply FSA Time Credits that Brodie had earned, “without regard to [BOP]’s ‘interim procedures or any cutoff based on Petitioner’s projected release date” Brodie, 22 Civ. 3821 at 6.
If you know of someone in the BOP who needs help with CARES Act or First Step Act issues; whether they are in the Administrative Remedy process stage, are looking to file with the court in a pro se petition, etc., you can tell them about this update. We are willing to discuss whether there is anything we can do to help.
Contact D.A.S. for help.
Phone: 800-489-8146
Email: info@defendantaidsociety.org
