Some nonviolent federal inmates could be released immediately or very soon now that the U.S. Department of Justice has issued a final rule that will retroactively award time credits under the First Step Act (FSA).

The FSA, passed in 2018, provides that eligible inmates earn time credits toward prerelease custody or early transfer to supervised release for successfully completing approved Evidence-Based Recidivism Reduction (EBRR) programs or Productive Activities (PAs).

FSA New Time Credits Rule

The proposed rule on time credits was published on November 25, 2020. The public comment period ended on January 25, 2021, and the BOP received more than 250 responses to the publication of the proposed rule. Some of the comments criticized what constituted a “day” for credit purposes and what programs qualified to earn credits.

Pursuant to the final rule, inmates will be assigned to evidence-based recidivism reduction programs and productive activities based on individualized risk and needs assessments. Inmates rated at a low or minimum risk of recidivism will earn 15 credits for every 30 days that they successfully participate in programming, and individuals rated at a medium or high risk of recidivism will earn 10 credits for every 30 days that they successfully participate in programming.

Under the final rule, a “day” is counted for any calendar day on which the inmate is participating in whatever assigned programming takes place on that date. It is not required that the inmate participate in eight hours of programming to get credit.

Time credits will be awarded retroactively back to the date of enactment of the FSA, December 18, 2018. Many individuals who are nearing the end of their sentences and who have a low or minimum risk rating may be transferred to supervised release or prerelease custody immediately and in the days and weeks ahead. Implementation has already begun.

Disqualifying Offenses

FSA time credits cannot be earned by an inmate who is serving a sentence for a disqualifying offense or has a disqualifying prior conviction, which are generally categorized as violent, or involving terrorism, espionage, human trafficking or sexual exploitation. Some repeat felons and high-level drug offenses may also disqualify an inmate from eligibility to earn time credits.

Even disqualified inmates, however, can still earn other benefits for successfully completing recidivism reduction programs, such as increased privileges (commissary, visiting and telephone) for participation in EBRR Programs or PAs, as authorized by the Bureau of Prisons.

Other Potential Mechanisms for Early Release

Inmates and family members should also be aware of other potential mechanisms to be released from prison early. Those include requests to the Warden pursuant to the CARES Act, Compassionate Release and 18 U.S.C. § 3624(c)(2).

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