Photo courtesy of Federal Bureau of Prisons.
Last month, over 700 individuals incarcerated at FPC Montgomery — a minimum-security federal prison camp in Alabama — protested the U.S. Bureau of Prisons (BOP) failure to properly implement a 2018 law that reforms sentencing provisions and grants early release to prisoners who participate in certain programs, two protesters told Elizabeth Weill-Greenberg, a journalist for The Appeal.
Although the brief hunger strike has since ended, advocates argue that the underlying problems of the BOP in failing to implement the First Step Act extend beyond Montgomery.
“Everything has gone wrong with the implementation of the Earned Time Credit program,” said Alison Guernsey, director of the Federal Criminal Defense Clinic at Iowa College of Law, in an interview with The Appeal.
Certain offenses, such as homicide and sexual abuse, disqualify individuals from participation, but Guernsey, who has litigated several cases on the issue, said the BOP often misclassifies people as ineligible.
For those deemed eligible, the BOP uses a risk assessment tool to predict the likelihood of reoffending after release. Depending on their classification, participants can earn either 10 or 15 days off their sentence for every 30 days they spend in programming.
However, case managers are responsible for implementing the First Step Act (FSA), and the system is rife with errors and abuses.
“This is a widespread issue,” said Susan Beaty, staff attorney at the California Collaborative for Immigrant Justice. “It’s happening in BOP facilities across the country. My sense is that the BOP doesn’t take its obligations under the First Step Act seriously.”
Beaty noted that many of her clients, formerly incarcerated at the scandal-plagued FCI Dublin, have faced FSA-related problems, including inaccurate calculation of credits and delayed application of earned credits. Some women, she said, were held months beyond their release dates. FCI Dublin was shut down in April after years of sexual abuse by staff, leading to lawsuits and congressional investigations.
Lydia Lavrova, a law student working in Guernsey’s clinic, explained that case managers frequently change a person’s eligibility status. “They’re responsible for determining baseline eligibility and how many credits someone earns,” she said. “They’re just not trained for that, and when they are, they sometimes act vindictively.”
Protesters in Montgomery also reported hostility from case managers. “They’re the ones who can give us more time,” said one protester, who asked to remain anonymous. “If you’re set to be released in two weeks and cause a problem, suddenly your halfway house is full, and you’re stuck for another seven months.”
Federal public defender Patricia Richman explained that the BOP often refuses to release individuals if halfway house beds aren’t available, but “that’s not the law.” Richman said many people could go to home confinement, but the BOP appears to ignore this option.
In a July congressional hearing, BOP Director Colette Peters acknowledged that releases are delayed due to a shortage of halfway house beds. Some federal prisoners have sued the BOP, arguing their release shouldn’t be dependent on bed availability, citing the FSA’s mandate that eligible prisoners “shall” be transferred into prerelease custody or supervised release. However, courts have issued conflicting rulings on this matter.
In May, a Kansas court ruled that the BOP must transfer eligible prisoners regardless of bed space, while an August ruling determined that the BOP has discretion in deciding a prisoner’s placement.
Without appointed counsel, most federal prisoners are left to advocate for themselves through protests or legal action. “These are people who have logged hundreds of hours of diligent work in programming,” said Richman. “It’s unjust to withhold the benefits, especially when the law is clear. The challenge is enforcing it.”
From September 11 to 14, prisoners at FPC Montgomery refused to attend meals, feeding each other instead. “It was one of the most heartfelt things I’ve seen—about 30 people pooling their food,” said one protester.
Prison officials responded by threatening to transfer 600 men to some of the worst prisons in the U.S., prompting the men to end the protest and attend dinner on September 14.
A BOP spokesperson confirmed that the prison had been placed on modified operations, and the situation returned to normal on September 16. The spokesperson also stated that the calculation of Earned Time Credits is automated and occurs every 30 days, with approximately 70,000 federal prisoners eligible for credits. When errors occur, staff work to resolve data issues and recalculate credits.
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