FederalSentencingAlliance.com Announces National Petition to Carry Out The First Step Act for Incarcerated Americans

Earning Time Credits, Not Timely Applied

The First Step Act was celebrated as once-in-a-generation criminal justice reform. Attorney Ralph S. Behr, in conjunction with Federal Sentencing Alliance, a consortium of federal sentencing specialists, and Interrogating Justice, a nonprofit nonpartisan think tank focused on criminal justice reform, are calling on the Bureau of Prisons to implement the First Step Act as Congress intended.

Among other things, Congress intended to incentivize rehabilitation utilizing BOP's oversight and management to carry out Act mandates. The Act allowed incarcerated Americans to earn an early pre-release transfer from prison to home confinement by successfully completing evidence-based recidivism reduction programs and productive activities.

To date however, the BOP has refused to apply time credits painstakingly earned by program and activity graduates for the entire 2019-2021 period, no matter how many programs and activities were successfully completed. "The BOP's approach is, at a minimum, unjust," Interrogating Justice's Peter J. Tomasek said. "But it can be fixed through public awareness and pressure."

"Congress can't let this three-year no time credits vacuum stand," Attorney Behr said.

The BOP's inaction has created a three-year no time credits vacuum. As a result, thousands of Americans will serve the entirety of their prison sentence with no First Step Act time credits applied to their early-release time accounts. "The majority of district courts have refused to confront BOP time credit disparities and failures head on, instead opting to claim lack of jurisdiction," Behr said. "That is also a false narrative."

The Supreme Court has recognized that prisoners have a constitutionally protected liberty interest in time credits that they earn under federal law. And, more recently, in the case Poulson v. Warden, a district court held that federal jurisdiction exists over "challenges to the BOP's calculation of" "good time credits and earned time credits", because those challenges allege that the prisoner "is in custody in violation of the Constitution or laws or treaties of the United States."

Moreover, those who successfully complete recidivism reduction programs and productive activities are excused from exhausting administrative remedies in certain scenarios, including facial rule challenges. As one district court recognized in Sutton v. Moser, when a litigant is "challenging the legality of BOP regulations or presenting an issue of statutory construction," federal caselaw "exclude[es] him from the exhaustion requirement."

Incarcerated Americans that have painstakingly completed recidivism reduction programs and productive activities since Dec. 21, 2018, have a constitutionally protected liberty interest for timely application of time credits they've earned.

Advocates can solve this problem right now with the public's help.

Sign the National Petition demanding that Attorney General Merrick Garland direct the BOP to apply all withheld First Step Act time credits earned by Americans in BOP custody.


For further information, contact Attorney Ralph S. Behr at rb@lawbehr.com or (561) 717-3000, Federal Sentencing Alliance, or Interrogating Justice.

Source: Federal Sentencing Alliance

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National consortium of federal mitigation specialists, legal technical writers, and sentencing datafiles analysts

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