by

Susan M. Giddings, PhD, Unit Management Section Chief (Retired), Federal Bureau of Prisons
Bruce Cameron, MS, LPC-S, LSOTP-S, Federal Bureau of Prisons, Ret. South Central Regional Office

A column published earlier this week on Forbes.com suggested unresolved issues, specifically temporary absences from the institution and the calculation of the additional five days, still exist regarding the Federal Bureau of Prisons method for calculating First Step Act (FSA) time credits and offered solutions. Unfortunately, these solutions lacked an understanding of a variety of issues, including legislative language and general legal principles, the Risk – Programming link requirement underpinning the awarding of time credits, and the physical safety of incarcerated individuals. Further, while we can agree there are some areas that the Bureau could incorporate increased nuance in determining eligible programming days, the columnist’s suggestions only served to give incarcerated individuals and their families false hope. The real and significant changes can only occur with reforming and amending the actual language of the law itself.

In discussing temporary absences, the columnist referenced furloughs, escorted trips, hospitalizations, and writs. Before considering the specifics of these activities, it is important to point out that under the existing system, only individuals who are absent from the facility for a full 24-hour day stop accumulating programming days because the Bureau considers any portion of a day to be a day. This means that if an individual departs a facility for any authorized reason and returns the same day or the next day, they were in the facility for part of the day they departed and the day they returned; therefore, there is no disruption to accumulating programming days.

First consider escorted trips and furloughs. As a practical matter, because of how the Bureau counts days (i.e., any part of a day is a day), nearly all escorted trips and many furloughs result in no disruption, no lost opportunity to earn time credits. Further, while we agree that most furloughs could be considered within the scope of allowable programming days, that is not the case in all situations. If the Bureau were to consider a different approach to furloughs, the decision-making should focus on the purpose of a furlough and whether it is linked to a programming area.

Next, the columnist raised the question of hospitalizations, but hospitalizations do not meet the statutory purpose of awarding time credits under the FSA. Time credits are an incentive for eligible individuals who successfully complete evidence-based recidivism-reducing programs and productive activities specific to the individual’s criminogenic needs. Medical care is not a criminogenic need. While the Bureau does identify Medical within the SPARC-13 Needs Assessment, the Medical “need” is directly tied to the Bureau’s Medical Care Level System, and no amount of FSA programming changes an individual’s Medical “need” status as noted in the Bureau’s FSA Approved Program Guide. Accordingly, an absence from the institution for extended medical treatment prevents the individual from participating in FSA programming, and programming days should not accumulate.

Finally, writs – writs are court orders (state or federal) for an individual to appear in court for further prosecution or testifying in another case. In either situation, the individual is transferred from Bureau custody to the U.S. Marshals Service custody (federal writs) or state authorities (state writs) for transportation to the applicable court. Like community hospitalizations, the individual is prevented from participating in FSA programming, and programming days should not accumulate. More importantly, it is completely reasonable that individuals on writ for additional prosecution should not be rewarded with earned time credits. One might then argue that individuals on writ for testifying are helping the government and therefore should be rewarded. This would be problematic for two reasons. First and obviously, testifying is not an FSA program, but second and most important, determining program-day eligibility based on whether the person was being prosecuted or was testifying creates a personal safety risk; those who testify as cooperators are very often targeted for physical violence by predatory inmates. Such a decision would be more than just shortsighted; it would actually violate the Bureau’s mission and obligation to maintain safe and secure prisons for those held in custody.

Moving to the calculation of the additional five days and the idea that the Bureau could just retroactively apply it. Sarcastically, we ask, “Oh, where to start?” First and foremost, there is NOTHING in the FSA statutory language that even remotely suggests that time credits are applied retroactively. The FSA states, “A prisoner determined by the Bureau of Prisons to be at a minimum or low risk for recidivating, who, over two consecutive assessments, has not increased their recidivism risk, shall earn an additional 5 days of time credits for every 30 days of successful participation in evidence-based recidivism reducing programming or productive activities.” This statutory language does not confirm a risk level; rather, it requires the individual to demonstrate their ability to maintain the lower risk level and earn the increased time credits. In addition to there being no retroactive language, there is no legal basis to presume retroactivity is a feasible option. It is a general legal principle that laws are presumed to be prospective, rather than retrospective, unless specifically referenced in the statutory language. However, as “evidence” that the Bureau could just change how time credits were calculated, regardless of the statutory language, the columnist cited the 2022 Stewart v. Warden, FCI Talladega (1:22-cv-00294-MHH-JHE) and a declaration by Susan Giddings, now retired Unit Management Section Chief for the Federal Bureau of Prisons and co-author of this article. While his comments were carefully caveated, he does not share what the actual case was about or why it is irrelevant to the Bureau’s 2026 FSA time credit auto-calculation process.

Mr. Stewart was awarded credit during the Bureau’s interim implementation, prior to the deployment of the current auto-calculator or the automated PATTERN Risk Assessment. The interim procedures were designed to prioritize those individuals who were within 24 months of their statutory release date and therefore most likely to receive an immediate benefit, either in the form of release or prerelease placement. During this interim period, individuals received a one-time application of time credits “earned to date,” and did not receive another posting of credit until the auto-calculation tool was deployed. The reasons for this decision were two-fold. First, the manual calculation of time credits was a simplified method that resulted in a time credit windfall for eligible individuals. This windfall occurred because the Bureau applied time credits to individuals without regard to the individual’s release date, PATTERN level history, assessment periods, and/or opt-in status – all components of the rules and implementing language. Second, in 2022, the Bureau intended to apply time credits toward early release only until the individual was within 18 months of their release date, and the remaining credits would be applied to early prerelease placement. The logistics necessary to secure a prerelease placement date require a predictable release. The law gave the Bureau the discretion to determine the distribution of time credits between early release and early prerelease placement (i.e., halfway house and/or home confinement), and early in the implementation process this was seen as the most viable option. It was only later that the Bureau abandoned this method and created what would become known as the conditional calculators, with the conditional release calculator deployed in late 2023, the conditional prerelease placement calculator in late 2024, and most recently, the maximum Second Chance Act home confinement eligibility calculator. Mr. Stewart’s complaint challenged the Bureau’s decision to post only a one-time application of time credits until the auto-calculation tool launched. The court disagreed with the Bureau’s decision and ordered it to calculate and post Mr. Stewart’s time credits to his record, and to post updated credits every 60 days until the auto-calculation tool was launched.

As we noted at the top of this article, real change will come from Congressional action and amending the First Step Act itself. While we have proposed several changes, in closing, we will focus on the two-step approach to earning and applying time credits. The current statutory language disproportionately benefits individuals with the lowest risk and the lowest need. Those incarcerated individuals with the highest risk and needs are systematically prevented from maximizing the very credit that was created for the purpose of incentivizing program participation designed to lower recidivism risk. Who benefits the most? White-collar, older, educated, first-time offenders with shorter sentences, individuals who are also more likely to participate in programming for no reason other than to pass the time. We are not suggesting Congress intended this; far from it. Unintended consequences are an occupational hazard when crafting legislative language. But it has been almost five years since the Bureau began posting earned time credits to individual records; Congress has plenty of evidence demonstrating defects in the FSA statutory language, and it is high time Congress acted and fixed it.

Susan M. Giddings, PhD, is a nationally recognized expert known for her work with the First Step Act and has more than three decades of experience in adult federal corrections, with expertise in offender classification, case management practices, policy/procedure, and professional development. As Unit Management Section Chief with the Federal Bureau of Prisons, Ms. Giddings co-architected the implementation of the Federal Time Credits program.

Bruce Cameron is a widely known expert, best known for his prior engagements as a federal law enforcement official. He has over 25 years of experience in development, consultation, and assessment for involved individuals. He founded Federal Prison Authority. Bruce has given multiple national and international talks and presentations and authored several publications.

Susan and Bruce have co-authored Unlocking Federal Time Credits: A Guide for Attorneys, Inmates, and Families (2nd Edition), available for purchase on Amazon.com, as well as Unlocking Federal Prison Designation and Custody Classification: A Guide for Attorneys, Inmates, and Families, and Unlocking Federal Halfway House and Home Confinement of the Second Chance Act: A Guide for Attorneys, Inmates, and Families, all of which are also available on Amazon.com.