Bureau Of Prisons’ Failure To Communicate First Step Act
The Federal Bureau of Prisons (BOP) is under new leadership but it is still suffering from decades of mismanagement. BOP Director Colette Peters began work on August 2nd of this year taking over for the Michael Carvajal. The U.S. Senate’s Permanent Subcommittee on Investigations held a hearing on July 26 chaired by Senator Jon Ossoff (D-GA) who grilled outgoing BOP Director Carvajal about the failings throughout the agency. While the hearing was focused on the corruption and abuses at USP Atlanta, it was a condemnation of an agency in crisis.
Director Peters testified on September 29, 2022 in from the Senate Judiciary Committee. Unlike Carvajal’s previous, contentious testimonies before the same committee during his tenure, Peters’ was marked by cordiality and encouragement to implement the First Step Act legislation, uncover corruption among staff and provide transparency to an agency that U.S. Senator Ron Johnson had previously described as one where “People have not been held accountable.”
The First Step Act (FSA) was signed into law in December 2018. It is considered one of the most influential pieces of legislation directed at the BOP to not only encourage prisoners to participate in meaningful programs meant to rehabilitate, but to reduce the number of people in prison who pose little or no danger to society. Senator Dick Durbin was frustrated in Peters’ testimony stating that the full effects of FSA had not been implemented nearly 4 years after it being signed into law. Peters assured the Senators that an auto-calculator was completed in August 2022 that provided FSA credits to prisoners which had the effect of reducing many sentences. However, that auto-calculator was not in place at the time of the hearing, or at least it was not communicated to prisoners or the public.
According to dozens of prisoners I interviewed for this piece, calculations were not communicated to them nor reflected on BOP.gov, which tracks release dates for federal prisoners. Anticipating this computer program’s rollout that would reduce many prisoner release dates, prisoners and their families eagerly awaited the news of when they would be going home. As the weeks passed after after August, prisoners still had no news. It was not until the week of October 3rd that FSA credits started to be applied. As one prisoner told me, “I was expecting a year of credits and I got 4 months. I have no idea what happened.”
What happened is that the calculator still has errors in it. Prisoners who were transferred to a halfway house after receiving an interim calculation of their sentence, were called in and told they would be returning to prison after the new calculation took away their year. Colitha Bush, had only been in a halfway house for a few weeks when the director of her Houston facility called her and said, “I hope you’re sitting down,” Bush told me in an interview that the director told her that it had received a new sentence calculation from the BOP and she was now not due to be released until April 2024. Colitha said, “I couldn’t believe that they were going to send me back to prison after I took all those classes and did what the First Step Act required.” The following day, Colitha went into the halfway house and was informed that the BOP had corrected her date, and she could stay home. “I was relieved but the last 24 hours was pure hell thinking that I was going back,” Bush said. Bush was not the only person to receive a revised date, some of the prisoners whose sentences were commuted by President Joe Biden had their dates recalculated so state a date in the future. One of those whose sentenced was commuted but had her date recalculated said that she was concerned enough to make a few calls to make sure it was not true. Her date was corrected also.
Other prisoners have reported that their credits were far less than what they believed and their case managers had few answers for them. “My case manager told me flat out that he had no idea how FSA was calculated,” Todd Ficeto, a prisoner at Edgefield Federal prison camp told me in an interview. His only relief to challenge the calculation will be through the BOP’s administrative remedy process, a broken system of hand-written requests from prisoners to BOP staff that are rarely successful. Prisoners like Ficeto will first submit a request to a case manager who has admittedly little understanding of FSA credits. Then he will go to the Warden in the next step, who likely knows less that the case manager when it comes to FSA as there are more pressing issues of running a federal prison. He will then go to Region, who most certainly will not want to step into a what is a national issue. In the end, Ficeto will apply to the BOP’s Central Office after 6-8 months pass of asking for FSA credits that he should have received when the auto-calculator was developed. He will likely not get those unless he files a civil lawsuit, something I predicted would happen in January of this year.
One of the main factors that seems to be causing issues is that federal prisoners were told to complete a needs assessment survey when they first entered prison. The survey was part of the FSA in that it was meant to provide an assessment of the types of programs, needs, that the prisoner would address while in prison. The assessment was to be done on-line through an internal computer terminal that prisoners use for email communications with their families. However, access to those terminals during COVID during 2020-2022 was limited and the time prisoners had on those terminals was also limited. For many prisoners, the survey, which could take up to 10 minutes to complete, was something that could wait another day as they communicated with their families. What prisoners were not told was that the survey’s completion was a requirement to initiating the FSA credits. All of the prisoners I spoke to stated that they were never told of the survey’s importance nor could I find information about this in the FSA nor in any directive given to prisoners. When I asked the BOP for their position, Emery Nelson of the BOP stated, “Completion of the self-assessment survey is only one factor which determines when an inmate begins earning FSA time credits.” For most all prisoners, it would have been one of the most important.
All of the prisoners I spoke with told me of the sheer number of programs in which they participated to get FSA credits over the past three years. Ficeto told me, “I was enrolled full time in a residential drug treatment program and took other classes as well. I wanted to maximize my programming so I could take advantage of everything FSA offered.” When asked if he took the survey he told me, “Nobody here knew the significance of the survey until we started to look at our FSA credits.” Ficeto , who is serving 6 year sentence for fraud, was expected to be released from prison in August 2023 with the application of FSA credits, and placement at a halfway house this past August 2022. “My case manager has not even started my paperwork to go home,” Ficeto said. His release date with the BOP’s auto-calculator now states April 9, 2024.
The BOP provided a statement on its new computer system which read, “As of October 11, the auto-calculation application is operating as intended following the resolution several glitches identified after its initial deployment on August 31. At this time, every eligible inmate has had their First Step Act (FSA) Federal Time Credits (FTC) accurately calculated.”
There are sure to be glitches in a new system but the BOP has done little in communicating how these FSA credits are calculated. As a result, prisoners and their families have looked outside of the BOP for any information on how these credits would be calculated and how they will affect their prison term. One source most often used is the Federal Register’s final rule on FSA, which was published in January 2022. It was the first indication to prisoners of the significant magnitude of sentence reduction, up to a year, and increased amount of time outside of prison in prerelease custody (halfway house or home confinement). As the BOP still did not have a program statement for how it would interpret the rules, prisoners went outside of the BOP to federal courts where prisoners had started to file cases as they believed they had not received the credits they deserved.
In a case out of the Northern District of Alabama (Robert S. Stewart v Warden Talladega, Case No.: 1:22-cv-00294-MHH-JHE), a declaration was provided by Susan Giddings, Chief of the Unit Management Section of the Correctional Programs Branch of the BOP, who was charged with providing interim, manual calculations for prisoners under the FSA. Oddly enough, Giddings’ declaration was submitted to correct an earlier miscalculation of FSA that had been provided to Mr. Stewart by the BOP. In September, the BOP stated in an internal memo to prisoners that the way it was calculating FSA had changed and that those who were within 18 months of release would no longer earn FSA credits that would reduce their prison term. Giddings provided updates to the judge on the Stewart Case until July 2022 when he was released from prison. If the BOP internal memo distributed to prisoners in September had been used in the Stewart case (Stewart was serving a 21 months sentence) he would have still been in prison today. In fact, if a prisoner would report to prison today with a 21 month sentence she will serve more time in prison because of the BOP’s own change of how it interprets FSA.
One case manager I spoke to who asked not to be identified told me that she had not been trained on FSA and had no idea that the auto-calculator was completed in August 2022. “That is news to me and now I’ve got inmates lined up outside my door asking me about a calculation that I know nothing about,” she said, “I don’t know what to tell them.”
One prisoner movie, an all-time favorite, is ‘Cool Hand Luke’ where the line that sticks with anyone who watches it is the Warden’s saying of prisoners who had not quite learned their lesson, “What we have here, is a failure to communicate.” The same is true of the FSA credit rollout. Prisoners have worked for years to take programming that the FSA law stated would earn them credits. Now, as implemented, those credits are fewer than many thought and they still do not have answers. They also have no realistic remedy to correct it in a timely manner. Millions of dollars will now be spent on litigation that will last years while prisoners who should be released stay in prison. The prisoners who will benefit most will be those after the judge rules and it is likely the judge will rule in favor of the law, not the BOP’s interpretation of the law.
I asked the BOP if the agency was satisfied with the BOP auto-calculator it has rolled out and they provided the following statement:
“This program is robust and designed to automatically calculate a precise figure while considering numerous live data points that are fluid in nature and ever changing. This program was designed and built from the ground up by employees who knew the magnitude of its creation and the impact it would have on the inmates who are trying to better themselves. The Bureau of Prisons is very proud of this program and the employees who worked tirelessly to create it. We will continue to monitor this program and address any future glitches or issues that arise.”
What the BOP did not do was communicate how the calculation was done to those most impacted by the calculation, prisoners.