First Step Act - Frequently Asked Questions
General information about the First Step Act (FSA) as it relates to Bureau of Prisons inmates and their families.
- About the First Step Act
- Applicability of the Law
- Compassionate Release
- Distance From Home ( < 500 Miles )
- Early Release
- Elderly Offender Pilot
- Fair Sentencing Act
- Federal Prison Industries (FPI) or UNICOR
- Good Conduct Time
- Home Confinement
- Inmate Needs Assessment
- Medication Assisted Treatment (MAT) Program
- Residential Drug Abuse Treatment Program (RDAP)
- Risk and Needs Assessment System
- Second Chance Act Home Confinement Pilot
- Time Credits
FIRST STEP ACT OVERVIEW
The First Step Act (FSA) is a law, signed on December 21, 2018, with provisions that impact Federal Bureau of Prisons (BOP) inmates and their families. The law:
- gives judges greater latitude in imposing mandatory minimum sentences,
- allows inmates to earn increased good conduct time,
- increases BOP recidivism reduction programming to address inmate's needs,
- offers earned time credits for completion of recidivism reduction programs and/or productive activities, and
- expands opportunities for inmate placement into residential reentry centers or home confinement.
How can an inmate obtain early release or additional community custody time (home detention or halfway house) under the FSA?
- An inmate may file a motion with the court and receive a reduced sentence under the Fair Sentencing Act provisions included in the FSA. (Please see the Fair Sentencing Act FAQ section for additional information.)
- An inmate may earn time credits for completion of Evidence-Based Recidivism Reducing Programs and/or Productive Activities if they were not convicted of a non-qualifying offense. (Please see the FSA Time Credits FAQ section for additional information.)
- An inmate may be approved for a compassionate release, also known as a Reduction in Sentence (RIS), based on extraordinary or compelling circumstances such as a diagnosis of a terminal illness, debilitation, or other criteria. (Please see the compassionate release FAQ section for additional information.)
- An inmate may request participation in the Elderly Offender Pilot based upon their age and length of term served. (Please see the Elderly Offender Pilot FAQ section for additional information.)
Is Good Conduct Time (GCT) used to calculate eligibility for the Elderly Offender (home confinement) Pilot program?
An inmate is considered eligible for the elderly offender/home confinement program if he/she has served 2/3 of "the term of imprisonment to which the offender was sentenced." This is calculation does not include the application of Good Conduct Time.
FAIR SENTENCING ACT (FSA)
The Fair Sentencing Act provisions of the FSA authorize the defendant, the BOP Director, the prosecution, or the sentencing court to move to reduce an inmate's sentence if the offender's offense is covered under the Fair Sentencing Act of 2010. Defendants are not eligible if they previously had a sentence imposed or reduced under the Fair Sentencing Act of 2010 or had a prior motion denied on the merits under the provisions.Inmates covered by the Fair Sentencing Act include those convicted under:
- 21 U.S.C. § 841(b)(1)(A),
- 21 U.S.C. § 841(b)(1)(B),
- 21 U.S.C. § 960(b)(1), and
- 21 U.S.C. § 960(b)(2).
To apply for an early release under the Fair Sentencing Act, an inmate should file a motion with the sentencing court.
Yes, the FSA made the Fair Sentencing Act of 2010 retroactive, which means that inmates whose offense was committed prior to August 3, 2010 may be eligible for a sentence reduction as if the Fair Sentencing Act was in effect at the time they committed their offense.
The FSA provides for eligible inmates to earn time credits if they participate in and complete assigned evidence-based recidivism reducing programs or productive activities. An inmate is eligible to earn time credits if:
- He or she was convicted of a U.S. (federal) Code offense; and
- He or she was not convicted of a disqualifying offense,
- He or she is at an institution, but not in Disciplinary Segregation.
Note: Participation in these activities during pretrial custody does not count towards time credit participation.
FSA Time Credits (FTC) may only be earned for completion of assigned evidence-based recidivism reduction programs or productive activities authorized by BOP and successfully completed on or after January 15, 2020.
Eligible inmates will be afforded a presumption of participation and awarded FTC for the period between December 21, 2018, and January 14, 2020, excluding any period in which they were in a special housing unit, in a designation status outside or away from their "home" BOP institution, or for refusing mandatory programming.
FTC may not be earned until after the date an inmate's term of imprisonment begins. An inmate's sentence begins when the inmate arrives or voluntarily surrenders at the designated facility where the sentence will be served. Because the ability to accrue time credits begins after the inmate's current term of incarceration begins, an inmate cannot earn FTCs during pretrial confinement, nor can they earn credits based on a prior incarceration. Also, inmates cannot earn FTC when in U.S. Marshals Service custody, regardless of where they are housed.
Deportable aliens may earn FTC, but they are not eligible to apply these credits towards their release date if they are subject to a final order of removal under immigration laws.
Time credits may be applied by the BOP to place an inmate in pre-release custody in the community or on supervised release if the inmate is assigned a minimum or low recidivism risk score for their last two reassessments. The Bureau may apply the earned FTC in an amount that is equal to the remainder of the inmate's imposed term of imprisonment.
Inmates assigned high and medium recidivism risk scores may also be considered if the Warden requests the transfer after determining the inmate does not pose a danger to the community, is unlikely to recidivate, and has made a good faith effort to lower their recidivism risk through participation in recidivism reduction programs or productive activities.
The BOP Director may transfer an inmate to begin a term of supervised release at an earlier date, not to exceed twelve months, based on the application of time credits under 18 USC 3632.
Yes, time credits can be taken away or restored. An inmate may lose earned FTC if they engage in misconduct or for violation of the requirements or rules of an EBRR Program or PA. The procedures for loss of FTC are described in the Federal Regulations. The BOP will inform an inmate of any loss of time credits in writing.
The BOP will only reduce time credits an inmate has earned as of the date of the misconduct or rule violation. An inmate who has lost FSA Time Credits (either for misconduct or violating the rules of an EBRR Program or Productive Activity) may have part or all of the FSA Time Credits restored to him or her, on a case-by-case basis, after clear conduct (behavior clear of inmate disciplinary infractions for two consecutive risk and needs assessments conducted by the Bureau.
The authority to restore any portion of the offender's lost FTCs is delegated to the Warden and may not be delegated lower than the Associate Warden level. The inmate may request restoration of FTCs during a regularly scheduled Program Review and only after having maintained clear conduct for two consecutive risk and needs assessments. Whether denied or approved, a copy of the decision will be provided to the inmate. If denied, the inmate will be advised that they may reapply for FTC restoration six months from the date of denial, if clear conduct is maintained.
Should an inmate refuse or decline to participate in a recommended EBRR program or productive activity for which they had been on a waitlist, the credits earned while on the waitlist will be rescinded.
The BOP has identified approved programs and activities for inmates to earn FTC . These FTC may be applied by the BOP toward pre-release custody or supervised release. Inmates may access the latest approved programs and activities guide on the TruLinc system.
Inmates only receive FTC for participation in programs and activities directly assigned to them as qualifying evidence-based recidivism reduction programming or productive activities.
Inmates are considered to be "successfully participating" in recommended programming or activities as long as they attend all sessions with only excused absences, complete all assigned activities, and comply with the established rules and instructions of the program. Additionally, the following situations must not occur: placement in SHU disciplinary segregation, designation status outside the institution (e.g., extended medical placement at a hospital, escorted trip, furlough), temporarily transferred to the custody of another federal or non-federal agency (e.g., writ), placed on a mental health/psychiatric hold, or choose to "opt out."
If an inmate is not eligible to earn time credits, are there other benefits to participating in programs and productive activities?
Inmates who are not eligible to earn time credits will still benefit from participating in evidence-based recidivism reducing programs due to their inherent value. Additionally, all inmates may earn additional incentives such as increased phone and visitation privileges, nearer release transfer, monetary achievement award, preferred housing, and participation in incentive events.
If inmates "opt out" of a program, they are choosing not to participate in recommended programming based upon their risk and needs assessment. While opting out will not, by itself, be considered a disciplinary violation, violations of specific requirements or rules of a particular recommended program or activity may be considered a disciplinary violation. Opting out will result in exclusion from further benefits or privileges allowable under the FSA. If inmates are eligible for FTC and "opt out," they will not earn FTC until they decide to "opt in" (choose to participate in recommended programming again).
Are FSA programs mandatory to complete? Is there a difference between choosing to "opt out" of a program versus refusing a program?
Some mandatory programs, such as Drug Education and GED, now count as FSA programs. Refusing participation in mandatory programs results in consequences, such as pay limits, commissary limits, or "poor" responsibility on custody classification. Inmates will not earn FTC if they refuse a mandatory program. Other FSA programs are recommended based upon individualized risk and needs assessment; they are not mandatory, but an inmate will be "opted out" and fail to earn FTC if they decline to participate.
Priority for participation in recidivism reduction programs will be given to medium-risk and high-risk prisoners, with priority access to productive activities given to minimum-risk and low-risk prisoners.
Can religious programs be considered evidence-based recidivism reduction programs and taken to earn time credits?
Yes, under the FSA, "faith-based classes or services" that otherwise meet the criteria for evidence-based recidivism reduction programming will qualify for time credits as approved by BOP in the same manner as other approved non-faith based programming.
If an inmate is (1) in BOP custody AND (2) sentenced to a term of imprisonment under the Criminal Code of the District of Columbia, are they eligible to participate in the FSA Time Credits Program?
Currently, D.C. Code offenders are not allowed to have FTC applied to early transfer to community confinement or supervised release. This may change if the laws of the District of Columbia are amended to authorize the application of such credit.
Under the FSA, an inmate may now file a motion for a Reduction in Sentence (RIS) also known as compassionate release directly with the court 30 days after making a request to the BOP or after exhausting their administrative remedies. Additional changes may be found in the policy on the BOP's RIS process found here:
A terminally ill offender may apply for compassionate release. Additionally, an eligible offender may apply to the Second Chance Home Confinement Pilot program to be placed on home detention until the expiration of their prison term.
Inmates who meet the eligibility criteria may apply for compassionate release consideration by making a request to their Unit Team. The request will be reviewed by the Warden and, ultimately, the BOP Director will determine whether approval of the request is appropriate.
More information about the BOP's RIS process, including eligibility criteria for elderly offenders, can be found here:
Additionally, under the FSA, an inmate may now file a motion for compassionate release directly with the sentencing court 30 days after making a request to the BOP or after exhausting their administrative remedies.
SECOND CHANCE ACT HOME CONFINEMENT PILOT PROGRAM
An inmate may apply for home confinement under the Second Chance Act Home Confinement Pilot program provisions contained in the FSA if they meet the eligibility criteria as an elderly offender or as a terminally ill offender. An inmate may initiate a request under either provision with their Unit Team.
More information about the Second Chance Act Home Confinement Pilot program can be found here:
What is the eligibility criteria for participation under the Second Chance Act Home Confinement Pilot program?
The criteria is as follows:
- Eligible elderly offender means an offender in the custody of the Bureau, who is not less than 60 years of age and has served 2/3 of the term of imprisonment to which the offender was sentenced;
Eligible terminally ill offender means an offender in the custody of
the Bureau who has been determined by a medical doctor approved by
the Bureau to be:
- in need of care at a nursing home, intermediate care facility, or assisted living facility, as those terms are defined in section 232 of the National Housing Act (12 U.S.C. § 1715w); or
- diagnosed with a terminal illness.
Can an inmate go straight to elderly offender home detention? Do they have to go to a Residential Reentry Center (RRC) first?
Inmates approved by the BOP for the Second Chance Act Home Confinement Pilot program provisions of the FSA may be transferred directly from the institution to home confinement. They do not need to release first to an RRC prior to transitioning to home confinement.
Can an inmate apply for the Second Chance Act elderly offender pilot program before his actual eligibility date?
Inmates should apply to the pilot program when they are within six months of eligibility (i.e. have served two-thirds of their sentence). Applications made earlier than that date will be returned.
GOOD CONDUCT TIME
Prior to the FSA, qualifying inmates earned up to 54 days of good conduct time for each year served and, in accordance with 18 USC 3624(b), the BOP pro-rated the amount of good conduct time earned for the final year of service of sentence.
Under the amendments made by the FSA, qualifying inmates will be eligible to earn up to 54 days of good conduct time for each year of sentence imposed by the court.
Yes, all inmates convicted of a federal offense committed after November 1, 1987 are eligible to earn up to 54 days of good conduct time.
The amendments made to good conduct time took effect on July 19, 2019 - the date the Department of Justice published the risk and needs assessment system.
Yes, the changes to the calculation of good conduct time are retroactive, which means they apply to inmates who committed their crime prior to the enactment of the FSA on December 21, 2018.
However, only inmates convicted of a federal offense committed after November 1, 1987 and inmates convicted of DC Code felony offenses committed on or after August 5, 2000 are eligible to earn up to 54 days of good conduct time.
Are there BOP inmates who are ineligible to benefit from the good conduct time changes under the FSA?
Yes, not all BOP inmates are eligible for the changes in how good conduct time is calculated.
Only inmates convicted of a federal offense committed after November 1, 1987 and inmates convicted of DC Code felony offenses committed on or after August 5, 2000 are eligible to earn up to 54 days of good conduct time.
Note: pursuant to DC Code § 24-403.01, inmates convicted of DC Code felony offenses committed on or after August 5, 2000 have good conduct time calculated in the same manner as federal inmates.
RESIDENTIAL DRUG ABUSE TREATMENT PROGRAM (RDAP)
The BOP's RDAP was not changed by the FSA.
Can an inmate benefit from both the early release due to RDAP participation under 3621(e) and the changes to good conduct time?
Yes, an inmate's projected release date will first be adjusted due to application of the Good Conduct Time changes. The BOP will review inmates participating in RDAP to determine the amount of sentence reduction that would be appropriate.
Yes, generally inmates who are ineligible to earn qualifying time credits may only be placed into home confinement for the shorter of 10 percent of the term of imprisonment or six months.
Inmates participating in the Second Chance Act Home Confinement Pilot program may only be placed on home confinement if they have served two-thirds of their sentence.
RISK AND NEEDS ASSESSMENT SYSTEM
The risk and needs assessment system is used to determine the risk and needs of inmates in BOP custody. Specifically, the system determines the recidivism risk of each inmate and assigns a recidivism risk score of minimum, low, medium, or high risk. The system also assesses each inmate and determines, to the extent practicable, the inmate's risk of violent or serious misconduct.
BOP staff also use the system to determine the type and amount of evidence-based recidivism reduction programming appropriate for each inmate and to assign recommended programming based on the inmate's specific criminogenic needs.
500 MILES FROM HOME
The FSA requires the BOP to designate an inmate to a facility as close as practicable to the prisoner's primary residence and, to the extent practicable, in a facility within 500 driving miles of that residence.
The BOP's determination is based on variety of factors including: bed availability, the inmate's security designation, the inmate's programmatic needs, the inmate's mental and medical health needs, any request made by the inmate related to faith-based needs, recommendations of the sentencing court, and other security concerns of the BOP.
The BOP will consider inmates for transfer even if they are already within 500 driving miles of their release residence. It is important to note the BOP's designation decisions are not reviewable. See 18 USC § 3621(b).
Can inmate families make requests to have an inmate moved closer to their primary release residence?
Requests for transfer must be initiated by an inmate. The BOP is required by the FSA to consider the inmate's preference for staying at his or her current facility.
BOP policy already directs staff to assist inmates in obtaining identification prior to release. Specifically, inmates are provided reasonable assistance in obtaining a social security card, a driver's license or other official photo identification, and a birth certificate.
APPLICABILITY OF THE LAW
The Risk and Needs Assessment system is used to assign all inmates to a recidivism risk category and their needs will be assessed. Eligible inmates will be able to earn FSA time credits; however, military code and state offenders will not be eligible to earn FSA time credits as the law applies to U.S. (federal) code offenders only. Additionally, the Second Chance Act Home Confinement Pilot Program and the changes to 18 U.S.C. § 3582 related to the compassionate release program only apply to U.S. (federal) code offenders.
However, the BOP will consider military or state offenders for pre-release custody in accordance with existing BOP release preparation policies.
General BOP policies which address management of the inmate population, such as prohibitions against restraining pregnant offenders, the provision of sanitary products to female offenders, providing assistance for release preparation in obtaining identification, and increased privileges for inmate participation in programs and productive activities will be applied to all persons in BOP custody, including military and state offenders.
INMATE NEEDS ASSESSMENT
The BOP assesses inmates for the following needs: anger/hostility; antisocial peers; cognitions; dyslexia; education; family/parenting; work; finance/poverty; medical; mental health; recreation/leisure/fitness; substance abuse; and trauma. If an inmate is assessed as having one or more of these needs, the Unit Team will assist the inmate in setting goals and recommending programs.
MEDICATION ASSISTED TREATMENT (MAT) PROGRAM
Inmates are screened for the MAT Program if they are within six months of transfer to an RRC and if they meet one or more of the following criteria:
- Diagnosis of Opioid Use Disorder (ICD9 or DSM5),
- History of opioid use noted on the Mental Health Intake,
- Positive urinalysis for opioids,
A Naltrexone injection is an extended release injection that blocks opioid receptors in the brain, interfering with the pleasurable feelings associated with taking opioids. It can significantly enhance the ability of individuals to resist opioid-seeking behaviors.
Yes, the RRC MAT Naltrexone Program requires ongoing counseling for the duration of treatment. Counseling and medication administration are integral parts any individualized treatment plan.
FEDERAL PRISON INDUSTRIES (FPI) OR UNICOR
The FSA authorizes FPI (or trade name UNICOR) to sell its products to four new markets:
- Public entities for use in penal or correctional institutions;
- Public entities for use in disaster relief or emergency response;
- The District of Columbia government; and,
- For products other than office furniture, to tax-exempt non-profit organizations (501(c)(3), (c)(4), or (d) organizations.
These new authorities will help UNICOR increase inmate employment skill-building opportunities. For more information about UNICOR, visit https://www.unicor.gov.
The expanded authorities under the FSA are expected to assist UNICOR to increase inmate employment. For more information about UNICOR, visit https://www.unicor.gov.