From The Presidents Desk

Messages from the President

Is the BOP Getting it wrong

BOP's Description of "Conditional Release" Fraught with Errors

Several months ago, the BOP issued an internal notice to inmates a document titled "First Step Act Admission and Orientation (A&O) Addendum". This addendum details the First Step Act laws and cites the BOPs position on Prerelease Eligibility, Prerelease Time and how they are applied. This article will try to dispel the inaccurate information that was provided to the inmates and also show how the BOP is incorrectly managing the statute on release of a prisoner.

Located on Page 10 of the addendum is an attempt to show how your accrued FSA Time Credits will be applied to release, be it Supervised Release or to a halfway house or home confinement (RRC). The first question this page starts with is “Do FTCs change my Home Confinement Eligibility Date?”. The immediate response to this question states that “your home detention eligibility date is calculated based on your statutory term”. THIS IS INCORRECT!

Under 18 USC § 3624-Release of a Prisoner, which covers portions of the Second Chance Act, it states the following: 18 USC § 3624(c)-Prerelease Custody (1); In general.--The Director of the Bureau of Prisons shall, to the extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed 12 months), under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community. Such conditions may include a community correctional facility.

It further states in 18 USC § 3624(c)(2); Home confinement authority. The authority under this subsection may be used to place a prisoner in home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months.

What’s at issue here is the wording “Term of Imprisonment”. I have searched over the internet, law libraries and BOP Policy and Program Statements for a definition of “Term of Imprisonment” and have found the same thing over and over again. A Term of Imprisonment is what the judge sentenced you to. A Term of Imprisonment does not include Good Conduct Time. Included in the Term of Imprisonment is the ability to earn Good Conduct Time, lose Good Conduct Time, etc. If a Judge sentences you to a 60 Month sentence, your Term of Imprisonment is 60 months, or 1826 Days.

In the Federal system, a Term of Imprisonment includes the ability to earn Good Conduct Time. The same 60 Month Term of Imprisonment the judge sentenced you to includes 270 Days of Good Conduct Time. Deducting the Good Conduct Time up front, as the First Step Act now permits from the Term of Imprisonment results into a Statutory Time to Serve of 1556 days. This becomes your Statutory Time to Serve.

No where in the Second Chance Act does 18 USC § 3624 mention the wording “Statutory Time”. The “Term of Imprisonment” verbiage is mentioned multiple times. When you look at a Judgement and Commitment Order, the “Imprisonment for a term of” does not mention Term of Imprisonment minus Good Conduct Time. It is the total Term of Imprisonment that the judge sentenced you to.

The BOP is aware of this, as well as the calculators that print the dates on the Sentence Computation Data Sheets. As an example: Charlie (a pseudonym) was sentenced to a 60 month Term of Imprisonment. We now know that a 60 month sentence equates to 1826 Full Term Days and Charlie will be credited with 270 Days of Good Contact Time which will bring his Statutory Time To Serve to 1556 Days. Using the BOPs statement of Charlie’s Home Detention Eligibility Date being based on his Statutory Time To Serve, Charlie should have a HDED of 155 Days (basically 5 months). But, looking at the Sentence Comp Data Sheet his Case Manager gave him during a program review, Charlie’s HDED is based on his Term of Imprisonment and is listed as 181 Days, or 6 months, which is 10% of his Term of Imprisonment. (Let’s not worry about the BOPs misinterpretation of 10% and waste valuable Administrative Remedy carbon copy paper over one day).

Now my hope is that the error is simply in the wording on page 10 of this newly released addendum and that perhaps the writer is unaware of the statement presented. That being said, anyone who is facing incarceration needs to be aware of the misquote as well as pay particular attention to their projections as shown on the Sentence Computation Data Sheet as well as any other documents listing 18 USC § 3624 Release Dates. Every individual incarcerated needs to know how to count “BOP” days, use calendars and become proficient in how Terms of Imprisonment are calculated.

Carrying on with Page 10, getting into the example shown, the writer proposes a scenario where an individual has a 30 month sentence (after Good Conduct Time) and is either a Low or Minimum Risk in the PATTERN Grading. It states that “from the beginning, you could earn up to 415 FTCs and that you would also have about 90 days of Home Detention Eligibility. Let’s play with some numbers and correct some epic fails.

Let’s bring back Charlie. He completed his sentence, was released and completed his Supervised Release. But Charlie is not so lucky and was arrested on a Fraud charge and sentenced to 35 months in Club Fed. His 35 month Term of Imprisonment (1064 Days Full Term) will result in an award of 157 days of Good Conduct Time, which results in a total Time To Serve of 907 Days (Statutory Time To Serve). Now Charlie is a model prisoner and does not get into any trouble, he participates in Evidence Based Recidivism Reduction programming and Productive Activities and he is rewarded in First Step Act Time Credits. Because of Charlies Time to Serve and the resulting reduction in time as a result of the FTCs, the maximum number of time credits that Charlie can earn is 270 days. As presented in the A&O Addendum, it would be mathematically impossible for Charlie to earn 415 Days Federal Time Credits because he will be released from BOP custody to Supervised Release after earning 270 days FTC.

Going further, the BOP is still using the Second Chance Act in the release of Charlie. And lucky for him. The Addendum states that the Unit Team is going to release him under the Second Chance Act to a Halfway House approximately 120 days in advance of his FSA Projected Release Date. While Charlie is in both the HWH and while on Home Confinement he will still be earning FSA Time Credits to bring him to the total possible of 270 days Federal Time Credits. So basically with the 120 days pre-release custody, Charlie has 4 months to max out and be kicked to the curb by the BOP. Always a good thing for sure! However, the 120 Days RRC placement that Charlie received only affords him 14 Days in the Halfway House and then 106 Days of Home Confinement, not like what the BOP is stating. Remember, Charlie has a Term of Incarceration of 1064 Days, not the 907 days that the BOP is calculating his Home Detention Eligibility Date on.

So you ask…….what about those extra days that Charlie lost based on the BOPs calculations? As stated earlier, it is mathematically impossible for Charlie to earn 415 Days Federal Time Credits on the Term of Imprisonment he received. In Charlies case, if he were to be released to Pre-Release custody with 120 days remaining on his sentence, he loses nothing.

OK, now meet Charlies little brother Robert. Robert wasn’t so fortunate as Charlie and he received a 10 Year Term of Imprisonment. He participates in Evidence Based Recidivism Reduction programming and Productive Activities and doesn’t get into any trouble. And here is where things get interesting. Roberts 10 year Term of Imprisonment will allow him to earn 365 days Federal Time Credits towards release to Supervised Release. It will also allow him to earn an additional 640 days towards early release to a Halfway House and Home Confinement.

Effectively, Robert’s 10 Years in Custody should allow him to leave BOP incarceration (but still under BOP control) after serving 5 years and 9 months of his sentence.

Under the Second Chance Act, Robert is limited in his Pre-Release Custody to only 365 Days. Yet he earned 640 Days. What happens to the remaining 275 Days? Under the current process of using the Second Chance Act for Release of a Prisoner, Robert loses those 275 days of Earned Federal Time Credits. Robert not only loses those 275 Earned Time Credits, but he spends an additional 275 days incarcerated in BOP custody.

Now I invite you to take a look at 18 USC § 3624(g). This statute, titled “Prerelease Custody or Supervised Release for Risk and Needs Assessment System Participants” is a new statute created by the First Step Act. It is a subsection of the 18 USC § 3624 Release of a Prisoner statute and incorporates anyone who is participating in Evidence Based Recidivism Reduction Programming and Productive Activities. If an inmate is First Step Act Time Credit Eligible, 18 USC § 3624(g) is the correct statute used to facilitate their release.

Even more important, no where in this new statute is there a restriction on time in prerelease custody. The framers of the statute even recognized the time limitation in 18 USC § 3624(c)(1) and (c)(2) and deliberately removed the time limitation as codified in 18 USC § 3624(g)(10), Time limits inapplicable.—The time limits under subsections (b) and (c) shall not apply to prerelease custody under this subsection.

Breaking this all down, we have now identified that the First Step Act created two separate "Release of a Prisoner statutes. The Second Chance Act Release of a Prisoner statute is covered in 18 USC § 3624 with emphasis on 18 USC § 3624 (c)(1) and (c)(2) and allows for a maximum early release of up to 12 months. Included in that 12 months is release to Home Confinement of up to the lesser of 10% or 6 months. The Second Chance Act release works great for those individuals sentenced to a term of imprisonment of 60 months or less and covers those individuals who do not qualify for First Step Act benefits.

The First Step Act Release of a Prisoner is now covered by the new statute 18 USC § 3624(g) - Prerelease Custody or Supervised Release for Risk and Needs Assessment System Participants. This statute is specific to individuals who are First Step Eligible and sets in motion a great benefit for individuals who have longer terms of imprisonment. However at this time the BOP is not recognizing the statute entirely and leaves those individuals with longer sentences in limbo and kept in imprisonment longer than they should be.

I have seen discussions where people have stated that the Second Chance Act release laws are in addition to the First Step Act releases laws. I have searched the statutes, Rules, BOP Program Statements and Policies and can find no reference in law that states this is the case. I would be very cautious in using that approach when challenging the Release of a Prisoner in any mediation, Administrative Remedy or Habeas actions. That being said and in full disclosure, I am not a lawyer nor profess to be one. But you don't have to be a lawyer to know how to read. You are free to do as you deem fit. If anyone can find case law or a statute that states differently, I will gladly modify this Message from the President.

Questions:

Is a person who is released from prison released under the Second Chance Act or the Risk and Needs Assessment program? Answer: If the individual was release with FSA Earned Time Credits, that individual should be released under the new 18 USC § 3624(g) law. If the individual was deemed INELIGIBLE for FSA Credits, that individual should be released under the Second Chance Act as is stipulated in 18 USC § 3624 (c)(1) and (c)(2).

Does the Second Chance Act supersede the Risk and Needs Assessment System releases? Answer: Absolutely not. The new law established in 18 USC § 3624(g) actually negates 18 USC § 3624(c)(1) and (c)(2) and establishes that there are no time limits on Prerelease Custody for those individuals deemed ELIGIBLE under the First Step Act.

Carey

Fix the auto calculator

Auto Calc is keeping individuals in prison longer than their release date.

The Federal Bureau of Prisons is tasked with housing inmates until their release date, and on that date, they are required to release the inmate. That’s a given. There can be no mis-interpretation of that statement. It is a Federal statute, and the BOP is required to follow the law just as society as a whole is required to follow the laws of the nation.

When the First Step Act was enacted, it allowed inmates to earn Federal Time Credits for participating in Evidence Based Recidivism Reduction programming and Productive Activities. Pretty simple. The BOP created an “Auto” calculator that crunches the numbers and determines how many Programming Days should be divided into 30 calendar days and then calculates the total number of “Earned” Federal Time Credits an inmate has earned. The only problem, there is nothing “Auto” about the auto-calculator.

With the First Step Act, an inmate can earn a maximum of 365 days off their sentence if they meet all the right criteria. The BOP is presently awarding only 10 days per 30 calendar days of FTCs based on their interpretation of the law for the first 6 months and then bumps that number to 15 FTCs per 30 calendar programming days thereafter. While I have been at odds with the BOPs interpretation, I have come to accept it as an actuality. In Stewart vs. Snider, I believe the BOP got the calculations correct in awarding 15 days per 30 calendar programming days from the get go. The inmate received 15 days for every 30 calendar programming days vs 10 FTC’s.

Regardless of the number, the problem with the auto-calculator is that it is only run once per month. That in itself should draw up red flags. According to Susan Giddings PhD and Bruce Cameron MS, as stated in their recently released attempt of explaining the BOPs interpretation of the First Step Acts FTC’s in “Unlocking Federal Time Credits, A Guide For Lawyers, Inmates and Families”, this is due to the size and complexity of the auto calculator program and the complexities in determining some very basic and simple math. I have been scratching my head on that comment from the day I read the book and am still doing so. It should be noted that Susan Giddings, prior to her recent retirement was the Chief of Unit Management of the Correctional Programs Branch, and as a function of the Unit Management Section Chief, was responsible for overseeing the Correctional Systems. On the back cover of the book, she is purported to be the “foremost authority on Federal Time Credits”.

Prior to my arrest and incarceration, in my other life, I created and wrote software programs for engineering companies that relied on extremely intense calculations, assessments and modelings and finite analysis’s. The programs were extremely complex, large and usually relied on some very large databases and even more demanding coding. After my incarceration I created the first Federal Time Credit Calculator that is hard coded and extremely accurate. The FSA Time Credit Analysis program accounts for Leap Year, partial month incarcerations, is extremely accurate on Good Conduct Time and can project ALL Federal Time Credits an inmate can earn right up to their FSA Release Date. That said, it is basically a simple calculator that can determine the number of FSA Programming Days, divide those days into 30 calendar programming days and then take the first 180 days, assign those days with 10 FTC days per 30 days and then take the balance and convert them into 15 FTC days per 30 days. It actually takes into account the “Carry-Over” days both authors discuss in their book.

Carry Over days are becoming an issue with Federal Time Credits being “auto-calculated” with the BOPs only running the calculator once per month. A Carry Over Day is simply the number of days in excess of 30 programming days but less than another 30 days. Inmates earn FTCs on every 30 programming days only. So, assume an inmate arrives at a designated location (another contentious issue being hammered out with the courts) on July 15, 2024. The auto-calculator is run on the last weekend of the month, therefore, that inmate would have zero (0) Federal Time Credits on the last weekend of the month for the month of July. After the whole month of August, the auto-calculator would run on the weekend of August 31, 2024. The inmate would have a total of 48 Programming Days in which he/she would be credited with 10 total Federal Time Credits being earned and 18 Carry Over Days that are basically stored for another day.

Because the auto-calculator is only run once per month, the inmate could be held in custody beyond his Federal First Step Act release date. According to the United States Sentencing Commissions Quarterly Report 2023, the average sentence length issued in the time span 2018 - 2023 was approximately 54 months. It takes approximately 26 to 27 months for an individual to max out on First Step Act FTCs under the current BOP policy. For those individuals, they should have the ability to max out on FSA FTCs towards an early release to Supervised Release (365-Days) without having to worry about Carry Over Days. But for those individuals with shorter term sentences, the individual could be detained beyond his release date simply because of the fact that the auto-calculator is only run once per month.

Taking the example above, a surrender date of July 15, 2024, the individual could earn a maximum of 135 days of Federal Time Credits towards a reduction in his sentence to Supervised Release. His “Projected FSA Release Date” would be June 10, 2025. However, the individual would have to wait until the last weekend of the month of June to receive the 135 days FTCs because of the decision to run the auto-calculator only once per month and not daily. On May 31, 2026, the auto-calculator would show that the individual has 120 FSA FTCs earned. The PRD based on the auto-calculator numbers would have a PRD of June 25, 2025 and that he/she would have 21 Carry Over days. However, just 9 days later, the individual will have another 30 programming days banked, bringing the 21 Carry Over days PLUS the 9 programming calendar days together to a total of eleven (11) 30 day units to be calculated and thus bring the Projected Release Date to June 10, 2025. Yet, because the individual will have to wait for the auto-calculator to run on the last weekend of the month of June 2025, that individual is incarcerated beyond his/her release date, effectively being detained approximately 20 days beyond the release date.

Fixing the auto-calculator is a pretty straightforward necessity. Converting the auto-calculator into a daily run program that updates release dates automatically, notifies Case Managers, Unit Team Managers, Wardens, Halfway House staff members as well as the individual incarcerated should be mandated by Congress. The amount of money tax payers are losing because of the ineptness of those individuals behind the creation of the auto-calculator program has no doubt cost the United States in excess of millions of dollars already.

Fixing The Auto-Calculator Is A Must!

Carey

unlock the reports

BOP can save money and time allowing access to reports to those incarcerated.

The Federal Bureau of Prisons has the ability to make life a whole lot easier for Case Managers and other Unit Team members by opening up the three major reports that inmates ask for and allowing them access to the reports on TruLincs.

Currently an inmate has limited access to his/her Sentence Computation Data Sheet, PATTERN Assessment and the First Step Act Federal Time Credit report only through a Team Meeting or via a request utilizing the Request To Staff/Request For Resolution process, and if that fails, then the Administrative Remedy process.

In all instances, the process is time consuming for Case Managers, Unit Team members and others. The time spent processing the requests could be better spent doing Case Management duties and helping inmates with real issues. In most instances, it would reduce traffic during Open Houses.

Allowing inmates access to these most requested reports will not only save valuable time for Unit Team staff members, it will also save money. Inmates will have access to the real time data at any time simply by utilizing TruLincs and clicking on one of the three options they need. They should not have to wait weeks or months for this information.

The information within these reports is not subject to Need To Know policies within the BOP. The information is not privileged, secret nor is there information within the reports that would subject staff members or inmates to privacy issues.

Share The Information.

Carey

A Time To Step Up, Navarro & Bannon

A Time To Step Up, Navarro & Bannon

Over the course of the last week, we watched a Former President get shot, a sitting President getting the Covid 19 Virus, a political prisoner released and then immediately give a key note address to the Republican National Committee in Milwaukee.

Peter Navarro was released from the Miami Federal Corrections Camp on Wednesday and immediately flew to Milwaukee to show support for his long time friend Donald Trump. On the stump, Navarro was also promoting his new book “The New Maga Deal” which details the first 100 days of Trumps presidency, should he win. He did state that he will be talking about his residence at Miami FPC in a week or so.

Mr. Navarro was incarcerated within the confines of Miami’s Federal Prison Camp, a cake walk of a facility housing a large portion of Hispanics (90%), a small population of Jewish inmates and White Collar offenders. There are no rooms at FPC Miami but rather a large military type dorm housing bunk beds and no privacy.

While Mr. Navarro had a short timers sentence of only 4 months, he also had an opportunity to realize and witness the ineptness of the Federal Bureau of Prisons staff, the dilapidated facilities within the confines, the lack of medical treatment afforded to inmates as well as the total mismanagement of the First Step Act.

Make no mistake about this: Navarro has some major pull. Should Donald Trump win the election, inmates across the nation should rejoice, as both Mr. Navarro and Steve Bannon will be able to relay their witness to Trumps First Step Act baby. Trump signed the First Step Act into law on December 21, 2018 and authorized $75,000,000.00 per year for the first five years to get the program up and running. To date, the FSA is not being implemented as defined in the statute. Inmates are held beyond release dates, credits are not given where due and BOP staff are not trained properly. This is after now five and a half years since the enactment of the law.

Mr. Navarro (and Steve Bannon) were not convicted of Felonies but were convicted of Criminal Contempt of Congress. The misdemeanor charge has penalties of up to one year imprisonment and up to a $100,000.00 fine. Both Bannon and Navarro were given 4 month sentences. But because of perhaps judges lack of knowledge on the First Step Act or perhaps Mr. Navarro’ lawyers lack of knowledge, neither were afforded a term of Supervised Release, a requirement to capitalize on First Step Act Time Credits. Since the term of imprisonment also was less than 1 year and 1 day, neither Bannon nor Navarro were given any Good Conduct Time either. In other words, both men served (or will serve in Bannon’ case) 100% of their sentence.

Mr. Navarro and Mr. Bannon now have the opportunity to justly expose to the world the corrupt actions of the Federal Bureau of Prisons and the failures of the inactions by the FBOP staff. Using the inside track to Trump, Mr. Navarro and Mr. Bannon can now use their voices to step up to the plate and assist others who remain inside with a chance to get even more needed oversight in lieu of the newly passed Prison Oversight legislation.

Mr. Navarro and Mr. Bannon, it’s time for you to step up!