First Step Act (FSA) And Earned Time Credits.

What Is The First Step Act?

The First Step Act is a bipartisan criminal justice reform bill signed into law in December 2018. The Act focuses on reducing recidivism by expanding educational and vocational programs and granting inmates early release credits (FSA Time Credits, aka FTC) for participating in these programs. It also includes provisions to ease mandatory minimum sentences for certain drug-related offenses and retro-activity of the Fair Sentencing Act of 2010.

There are several benefits tied to the FSA, but for our purposes in this post we will focus on the importance of the FSA Time Credit provision for those prosecuted for a first time, white collar/non-violent offense.

See HERE and HERE for more information and FAQ on the First Step Act directly from the BOP.

What Are FSA Time Credits And Why Are They Important?

For an individual facing prosecution for a first time, white collar/non-violent offense, the First Step Act introduces a significant provision called “Time Credits“, granting individuals in federal prisons the opportunity to reduce their incarceration period. This reduction is achieved by actively engaging in “Evidence-Based Recidivism Reduction programming” (EBRR programs) and participating in BOP sanctioned “Productive Activities.”

By participating in these Productive Activities and EBRR programs, incarcerated individuals can earn Time Credits that have the power to shorten their overall prison sentence. Rather than remaining in a BOP facility, participants who accumulate these credits gain the opportunity to transition to home confinement or a Residential Reentry Center (RRC, aka Half-Way House) sooner, and on to Supervised Release sooner, than before the FSA was enacted.

The potential for sentence reduction can be substantial. According to the law, participants can earn up to 15 days in Time Credits for every 30 days of active involvement in the designated programs and activities. This is very good news for an individual facing prosecution for a first time, white collar/non-violent offense who could see their total sentence cut by up to 365 days, which is the maximum allowed under the Act.

Who Is Eligible For FSA Time Credits?

The Bureau of Prisons (BOP) has a careful selection process when deciding who can benefit from the FSA and its early release provisions. As directly stated from the BOP FSA FAQ Guide:

The FSA provides for eligible inmates to earn Time Credits if they participate in and complete assigned evidence-based recidivism reducing programs or productive activities. An inmate is eligible to earn Time Credits if:

  • He or she was convicted of a U.S. (federal) Code offense; and
  • He or she was not convicted of a disqualifying offense,
  • He or she is at an institution, but not in Disciplinary Segregation.

Therefore, individuals who are serving sentences the FSA identifies as disqualifying cannot earn credit. Those serving life sentences, or sentences relating to terrorism, arson, murder are generally ineligible to participate. Click HERE for a complete list of disqualifying offenses.

If this is your first offense and your crime/conviction isn’t on the list of disqualifying offenses, then you are very likely eligible. 

When Can FSA Time Credits Begin To Be Earned?

FSA Time Credits may not be earned until after you begin your sentence. The BOP defines this as the date you arrive, or self-surrender, at the designated facility where your sentence will be served. You are not eligible to earn FSA Time Credits while on pretrial confinement, and you cannot earn FSA Time Credits while in the custody of the US Marshall service. You are also ineligible to receive FSA Time Credits while in disciplinary/administrative segregation.

From the feedback we have received from our Fellow Travelers who are currently incarcerated, many if not all, are receiving their credits within a few months of their arrival.

How Are FSA Time Credits Calculated?

There have been many iterations and much confusion as to this interpretation since the FSA was first rolled out. Now, under the final rule, a ‘day’ means a calendar day on which the individual is participating in whatever assigned programming or productive activity takes place.

For example: If you are assigned to and consistently participate in a program that meets 3 times a week for 8 weeks, you will receive Time Credit for 24 days.

As mentioned above, the maximum amount of Time Credits that can be earned in any one month is 15, and the maximum you can earn is 365 days.

What FSA Programs & Activities Are Available And Are They Available At Every BOP Facility?

The programs and activities offered by the BOP are broken down into two categories: Evidenced Based Recidivism Reduction (EBRR) programs, and Structured, Curriculum-Based Productive Activities. 

As you go through the guide you will see that many programs are indicated as available at all institutions, but you should not assume all will be offered at your designated institution while you are there. It is important to note too that some EBRR programs are only offered at higher security level facilities, and some programs are offered only to male or female populations.

While I was at FCI El Reno, after the FSA was signed into law, I was assigned by my Case Manager to the Drug Education program, the Criminal Thinking program, the Parenting From Prison program, and the Threshold program. Three of these arenow EBRR programs. There may be other programs at your designated facility that may not be on this list but may still be eligible for FSA Time Credits.You can clarify this with your Case Manager.

The January 2023 FSA Approved Programs Guide is HERE.

Can FSA Time Credits Be Taken Away?

Yes! You will have responsibilities for earning and maintaining FSA Time Credits, and FSA Time Creditscan be taken away. Alsoyou can lose the opportunity to participate in future FSA programs and activities. Please review the following items which are listed in detail on the BOP FSA FAQ Guide:

  • You can lose earned FSA Time Credits, and possibly the ability to participate in future FSA programs and activities, if you engage in any misconduct and/or receive any disciplinary infractions.
  • You can lose the ability to participate in FSA programs and activities if you refuse to participate in the BOP’s Financial Responsibility Program (FRP) for the repayment of court ordered restitution, fines, and fees. There are other non-FSA related consequences for refusing to participate in the FRP.
  • You can lose earned FSA Time Credits, and possibly the ability to participate in future FSA programs and activities, if you violate the requirements or rules of an FSA program or activity.
  • You can lose the ability to participate in FSA programs and activities if you ‘Opt Out’ of a recommendedFSA program or activity. If you are eligible for FSA Time Credits and “opt out,” you will not earn the credits until you decide to “opt in” (choose to participate in recommended programming again).
  • Some mandatory programs, such as Drug Education and GED, now count as FSA programs. Refusing participation in mandatory programs results in consequences, such as pay limits, commissary limits, or “poor” responsibility on custody classification. You will not earn FSA Time Credits if you refuse a mandatory program. Other FSA programs are recommended based upon individualized risk and needs assessment; they are not mandatory, but you will be “opted out” and fail to earn FTC if you decline to participate.

FSA Time Credits while on Home Confinement or Halfway House

I cannot find a specific citation on the BOP website that addresses this issue, but the FSA does not differentiate based on an individual’s location within the BOP system. A ‘prisoner’ is an individual in the custody of the BOP, and while you are in HWH, or on Home Confinement, you are still in BOP custody.

I have spoken to several individuals in this situation. Some have received their Time Credits, and othershave not. And for the ones that have, it’s not entirely clear how these Time Credits were being calculated.

Examples Of How FSA Time Credits Can Help You?

In the federal prison system, if an individual has no disciplinary infractions, they will receive 54 days per year of Good Conduct Time (GCT). In percentage terms this means that every man or woman will serve 85% (85.21%) of the term imposed by the judge at sentencing.

For an individual sentenced to 36 months, this equates to 30.6 months until they are released (36 x .85).

If this individual then takes full advantage of the EBRR programs and Productive Activity programs at their institution and accumulates 15 days per month for the next 18 months they will accumulate 270days (9 months) of FSA Time Credits, and their time at their institution will be cut to 21.6 months (30.6 minus 9).

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