The First Step Act Time Credits program allows eligible federal prisoners to earn credits by participating in qualifying programs and productive activities. Those credits may permit an eligible prisoner to transition from a federal prison to prerelease custody earlier or, in appropriate circumstances, transfer earlier to supervised release.
Federal criminal defense attorney Michael J. Petro represents individuals in federal criminal cases and advises clients and families concerning federal sentencing and post-sentencing issues.
Understanding First Step Act Time Credits requires distinguishing among three questions: whether a prisoner is eligible to earn credits, how many credits the prisoner earns, and whether those credits can be applied toward prerelease custody or supervised release.
What Are First Step Act Time Credits?
The First Step Act created a system that allows eligible federal prisoners to earn time credits by successfully participating in qualifying evidence-based recidivism reduction programs and productive activities.
The governing statute is 18 U.S.C. § 3632(d)(4).
Eligible prisoners generally earn 10 days of First Step Act Time Credits for every 30 days of successful participation in qualifying programming or productive activities.
Certain prisoners classified by the Bureau of Prisons as minimum- or low-risk for recidivism can earn an additional 5 days of credit for every 30 days of successful participation, provided they meet the statutory requirements.
This means qualifying prisoners may earn up to 15 days of First Step Act Time Credits for every 30 days of successful participation.
Who Can Earn First Step Act Time Credits?
Not every federal prisoner is eligible to earn First Step Act Time Credits.
Federal law lists convictions that make a prisoner ineligible to earn these credits.
Eligibility therefore depends in part on the specific federal offense for which the person is serving a sentence.
The Bureau of Prisons determines eligibility based on the prisoner’s conviction and the requirements of the First Step Act.
A prisoner who is ineligible for First Step Act Time Credits may still be able to participate in programming and may qualify for other benefits or incentives. Ineligibility for FSA Time Credits does not necessarily mean that programming has no value.
How Are First Step Act Time Credits Earned?
Eligible prisoners earn credits through successful participation in qualifying Evidence-Based Recidivism Reduction (EBRR) programs and qualifying Productive Activities (PAs).
The Bureau of Prisons uses its risk and needs assessment process to identify programming appropriate for an individual prisoner.
Qualifying activities can vary depending on the prisoner’s assessed needs and available programming.
The important point is that simply being incarcerated does not automatically generate First Step Act Time Credits.
The prisoner must meet the applicable requirements to successfully participate in qualifying activities.
10 Days or 15 Days of First Step Act Time Credits
The amount of credit earned depends in part on the prisoner’s recidivism risk assessment.
An eligible prisoner generally earns:
- 10 days of credit for every 30 days of successful participation in qualifying programs or productive activities.
A prisoner determined by the Bureau of Prisons to be at a minimum or low risk of recidivism who has not increased the prisoner’s risk level over two consecutive assessments may earn:
- An additional 5 days for every 30 days of successful participation.
That can result in a total of 15 days of First Step Act Time Credits for every 30 days of qualifying participation.
The prisoner’s PATTERN risk assessment can therefore have an important effect on the rate at which credits are earned.
PATTERN Risk Assessments
The Bureau of Prisons uses the Prisoner Assessment Tool Targeting Estimated Risk and Needs, commonly known as PATTERN, to assess recidivism risk.
Prisoners may be classified as:
- Minimum risk
- Low risk
- Medium risk
- High risk
The assessment is important for several reasons.
A qualifying minimum- or low-risk prisoner may earn First Step Act Time Credits at the higher 15-day rate.
Risk level can also affect whether accumulated credits may be applied toward prerelease custody or supervised release.
Prisoners should therefore review their PATTERN assessments and discuss questions concerning their risk classification with their Bureau of Prisons unit team.
Earning Credits and Applying Credits Are Different
One of the most important aspects of the First Step Act is the distinction between earning credits and applying credits.
A prisoner may be eligible to earn First Step Act Time Credits but still face separate requirements concerning when and how those credits can be applied.
First Step Act Time Credits may be applied toward qualifying pre-release custody or supervised release when the statutory requirements are satisfied.
Pre-release custody can include placement in:
- A Residential Reentry Center, commonly called a halfway house
- Home confinement
In appropriate cases, qualifying credits may also permit an earlier transfer from imprisonment to supervised release.
The rules governing the application of credits should therefore be examined separately from the rules governing how credits are earned.
First Step Act Credits and Early Supervised Release
First Step Act Time Credits can potentially be applied toward an earlier transfer to supervised release.
However, federal law limits the amount that may be used for this purpose.
A prisoner should not assume that every accumulated First Step Act Time Credit will necessarily reduce the date on which the person begins supervised release.
Some credits may instead be applied toward pre-release custody, including a Residential Reentry Center or home confinement.
The Bureau of Prisons calculates and applies credits in accordance with the First Step Act and applicable BOP procedures.
First Step Act Time Credits and Home Confinement
First Step Act Time Credits can be important because they may allow an eligible prisoner to enter pre-release custody earlier than otherwise would have occurred.
Pre-release custody can include home confinement.
This does not mean that every earned credit automatically results in home confinement.
The Bureau of Prisons must determine how the credits are applied in accordance with applicable statutory and administrative requirements.
Depending on the circumstances, prerelease custody may involve a halfway house, home confinement, or a combination of community placements.
First Step Act Time Credits and Halfway House Placement
A Residential Reentry Center is commonly referred to as a halfway house.
First Step Act Time Credits can potentially allow an eligible prisoner to enter a Residential Reentry Center earlier.
This is different from ordinary pre-release placement that may otherwise be available under federal law.
A prisoner may therefore have more than one legal basis affecting potential community placement.
Understanding the projected release date requires examining the interaction among the sentence imposed, Good Conduct Time, First Step Act Time Credits, and other applicable pre-release provisions.
First Step Act Time Credits Are Different From Good Conduct Time
First Step Act Time Credits should not be confused with Good Conduct Time.
They are different forms of credit.
Federal prisoners may earn up to 54 days of Good Conduct Time for each year of the imposed sentence, subject to applicable statutory requirements.
First Step Act Time Credits, in contrast, are earned by eligible prisoners through qualifying recidivism reduction programming and productive activities.
Good Conduct Time generally affects the calculation of the prisoner’s release date from the custodial sentence.
First Step Act Time Credits are primarily used to move eligible prisoners into pre-release custody or supervised release once the statutory requirements are met.
The two systems should therefore be analyzed separately.
Not Every Federal Offense Qualifies
Congress excluded prisoners serving sentences for numerous specified offenses from earning First Step Act Time Credits.
The disqualifying offenses are listed in 18 U.S.C. § 3632(d)(4)(D).
The exclusions include numerous serious offenses involving violence, terrorism, sexual exploitation, certain firearms offenses, and other specifically identified federal crimes.
Eligibility should be determined from the actual statute of conviction rather than simply from a general description of the offense.
A person should not assume eligibility or ineligibility based solely on the name commonly used to describe the criminal case.
When Can a Federal Prisoner Begin Earning Credits?
First Step Act Time Credits generally cannot be earned during pretrial detention.
The Bureau of Prisons explains that the ability to accrue credits begins after the prisoner’s current term of imprisonment commences.
Time spent in United States Marshals Service custody does not automatically generate First Step Act Time Credits merely because that time may later be credited toward the sentence.
This distinction can be particularly important for defendants who spent substantial periods in custody before sentencing or before arriving at their designated Bureau of Prisons institution.
Successful Participation Matters
The Bureau of Prisons requires successful participation in assigned qualifying programming or productive activities.
According to the BOP, successful participation generally requires meeting program requirements, including attendance, completion of assigned activities, and adherence to program rules.
Certain circumstances can place an individual in a status where First Step Act Time Credits are not earned.
Prisoners should monitor their records and address potential discrepancies with their unit team.
What If the Bureau of Prisons Calculates the Credits Incorrectly?
Disputes sometimes arise concerning whether the Bureau of Prisons has properly calculated or applied First Step Act Time Credits.
A prisoner should first determine exactly what is disputed.
Potential issues may involve:
- Eligibility to earn credits
- The number of credits earned
- PATTERN risk classification
- Programming participation
- Periods classified as non-earning
- Application of accumulated credits
- Projected prerelease placement
- Transfer to supervised release
- BOP records concerning participation
The appropriate procedure for challenging a BOP determination depends on the nature of the dispute and the prisoner’s circumstances.
Administrative remedies may need to be considered before seeking judicial relief.
First Step Act Time Credits and Federal Sentencing
First Step Act Time Credits generally concern the Bureau of Prisons’ administration of a sentence after it has been imposed.
They are different from the sentencing decision made by the federal judge.
They are also different from a motion seeking a reduction of an already imposed sentence under 18 U.S.C. § 3582.
Individuals seeking information about federal sentencing or sentence reductions should review Attorney Petro’s Federal Sentencing Attorney and Sentence Reductions page.
First Step Act Credits Are Different From Compassionate Release
First Step Act Time Credits are also different from compassionate release.
Compassionate release under 18 U.S.C. § 3582(c)(1)(A) permits a sentencing court to consider reducing a federal sentence if the applicable statutory requirements are met.
First Step Act Time Credits involve credits earned through qualifying programming and their application by the Bureau of Prisons.
Individuals seeking information about compassionate release should review Attorney Petro’s Federal Compassionate Release Attorney page.
How Federal Prisoners Can Protect Their First Step Act Credits
Federal prisoners eligible for First Step Act Time Credits should monitor their BOP records throughout their incarceration.
Important steps can include:
- Completing required risk and needs assessments
- Participating in assigned qualifying programs
- Avoiding unnecessary periods of non-earning status
- Reviewing PATTERN assessments
- Reviewing First Step Act Time Credit calculations
- Keeping records of completed programs
- Discussing discrepancies with the unit team
- Understanding projected prerelease dates
- Using appropriate administrative procedures when necessary
Waiting until shortly before an anticipated release date to investigate a credit problem can make resolving a dispute more difficult.
Understanding First Step Act Time Credits
The First Step Act created meaningful opportunities for eligible federal prisoners to earn earlier placement in community custody and, in qualifying circumstances, earlier transfer to supervised release.
But the system is more complicated than simply earning a fixed number of days for completing a class.
Eligibility, qualifying participation, PATTERN risk assessments, the rate at which credits are earned, and the rules governing application of accumulated credits can all affect the result.
Federal prisoners and their families should therefore distinguish between earning First Step Act Time Credits and actually applying those credits toward prerelease custody or supervised release.
Michael J. Petro has more than 35 years of federal criminal defense experience and represents clients in federal criminal, sentencing, and post-sentencing matters.
Contact Michael J. Petro if you need assistance evaluating a federal sentencing or First Step Act issue.