Rule2022-02876
Good Conduct Time Credit Under the First Step Act
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 11, 2022
Effective
March 14, 2022
Issuing agencies
Justice DepartmentPrisons Bureau
Abstract
The Bureau of Prisons (Bureau or BOP) modifies regulations on Good Conduct Time (GCT) credit to conform with legislative changes under the First Step Act (FSA). The changes made by the FSA to the process for awarding GCT credit have resulted in recalculation of the release date of most inmates. This final rule adopts the same calculation method set forth in the proposed rule published on this subject, and finalizes that proposed rule with the following minor change(s) described below.
Full Text
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<title>Federal Register, Volume 87 Issue 29 (Friday, February 11, 2022)</title>
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[Federal Register Volume 87, Number 29 (Friday, February 11, 2022)]
[Rules and Regulations]
[Pages 7938-7943]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-02876]
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DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 523
[BOP-1032-F]
RIN 1120-AA62
Good Conduct Time Credit Under the First Step Act
AGENCY: Bureau of Prisons, Justice.
ACTION: Final rule.
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SUMMARY: The Bureau of Prisons (Bureau or BOP) modifies regulations on
Good Conduct Time (GCT) credit to conform with legislative changes
under the First Step Act (FSA). The changes made by the FSA to the
process for awarding GCT credit have resulted in recalculation of the
release date of most inmates. This final rule adopts the same
calculation method set forth in the proposed rule published on this
subject, and finalizes that proposed rule with the following minor
change(s) described below.
DATES: This rule is effective March 14, 2022.
FOR FURTHER INFORMATION CONTACT: Sarah N. Qureshi, Rules Administrator,
Office of General Counsel, Bureau of Prisons, phone (202) 353-8248.
SUPPLEMENTARY INFORMATION:
I. Overview
In this document, the Bureau modifies regulations on GCT credit to
conform with changes made in the First Step Act of 2018 (FSA), Public
Law 115-391, December 21, 2018, 132 Stat 5194. The Bureau published a
proposed rule on this subject on December 31, 2019 (84 FR 72274) with a
comment deadline of March 2, 2020. Seventy-four comments were received
during the comment period. Six of those 74 comments supported the
proposed rule without qualification. The remaining 68 comments raised
some common issues, which we address below.
II. Background.
Section 102(b) of the FSA amended 18 U.S.C. 3624(b) to provide that
inmates may receive up to 54 days of GCT credit for each year of the
sentence imposed by the court, instead of for each year of actual time
served. See 18 U.S.C. 3624(b)(1) (``[A] prisoner who is serving a term
of imprisonment of more than 1 year other than a term of imprisonment
for the duration of the prisoner's life, may receive credit toward the
service of the prisoner's sentence of up to 54 days for each year of
the prisoner's sentence imposed by the court . . . .''). As a practical
matter, prior to this change, awarding GCT credit for each year of
actual time served had routinely resulted in a de facto cap of roughly
47 days per year of GCT credit. See Barber v. Thomas, 560 U.S. 474, 479
(2010). This final rule supports the FSA's modification of the GCT
credit determination, which will result in recalculation of the release
date of most current inmates (with the exception of those serving
sentences for offenses committed before November 1, 1987, sentences of
one year or less, and sentences of life imprisonment).
Under section 102(b)(2) of the FSA, this change to the manner in
which GCT credit is applied could not be made effective until the
Attorney General completed and released a recidivism risk and needs
assessment system, which was done on July 19, 2019. A total of 3,163
inmates were released from Bureau custody on July 19, 2019, after the
Bureau recalculated release dates under the amended GCT credit scheme
in the FSA.
The Bureau has completed the process of recalculations for the
remainder of the inmate population, prioritizing recalculations by
proximity of projected release dates, and releasing inmates as
appropriate. This rule focuses primarily on the proper calculation of
GCT credit for the last chronological year of an inmate's term of
imprisonment, implementing the statutory instruction that ``credit for
the last year of a term of imprisonment shall be credited on the first
day of the last year of the term of imprisonment.'' 18 U.S.C.
3624(b)(1). The Bureau has applied this calculation method since July
19, 2019, and the calculation method is the same one set forth in the
Bureau's proposed rule.
III. Discussion of Comments and BOP's Responses
Comment: The Bureau should choose the second alternative described
in the proposed rule instead of the third alternative proposed by the
Bureau. Sixty-four commenters urged the Bureau to adopt ``Alternative
2,'' the alternative interpretation of the FSA described in the
proposed rule that would offer ``the most Good Conduct Time credit
possible.'' To explain Alternative 2, we first provide some brief
background.
Previously, 18 U.S.C. 3624(b)(1) provided that inmates ``may
receive credit toward the service of the prisoner's sentence beyond the
time served, of up to 54 days at the end of each year of the prisoner's
term of imprisonment, beginning at the end of the first year of the
term.'' The statute then specified that ``credit for the last year or
portion of a year of the term of imprisonment shall be prorated and
credited within the last six weeks of the sentence.''
Section 102(b)(1) of the FSA, however, amended 18 U.S.C. 3624(b)(1)
to require that inmates serving a sentence (other than a life sentence)
of more than a year receive GCT credit of ``up to 54 days for each year
of the prisoner's sentence imposed by the court''--as opposed to for
``time served''--and that GCT ``credit for the last year of a term of
imprisonment . . . be credited on the first day of the last year of the
term of imprisonment.''
In the proposed rule, the Bureau discussed three possible
interpretations of the FSA's changes to 18 U.S.C. 3624(b)(1):
[[Page 7939]]
Alternative 1: The Bureau should award no GCT credit for any
portion of a sentence imposed that is less than 12 months (i.e., the
Bureau should award no credit for any partial-year portion of the
sentence imposed).
Alternative 2: The Bureau should award a full 54 days of GCT credit
for any partial final year of the sentence imposed.
Alternative 3: The Bureau should award prorated credit for any
partial final year of the sentence imposed.
As stated above, sixty-four commenters urged the Bureau to adopt
Alternative 2, because the commenters felt it would offer ``the most
Good Conduct Time credit possible.'' \1\
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\1\ Fifty-four of the comments were two-word to two-sentence
online responses, simply indicating support for Alternative 2.
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The Bureau offers the following explanations of the alternative
interpretations of the changes made to the GCT credit statute by the
FSA, in order to clarify the issues raised and explain why Alternative
3 remains the most logical and equitable option.
Alternative 1
The revised section 3624(b)(1) directs the Bureau to award GCT
credit for ``the last year of the term of imprisonment.'' 18 U.S.C.
3624(b)(1). The FSA removed language from the statute which had
instructed the Bureau to prorate GCT credit ``for the last year or
portion of a year,'' it could be argued that this deletion means that
if an inmate has any part of his her or sentence that is less than 12
months, he or she earns no GCT credit for that portion of the sentence.
This interpretation, however, would ignore Congress's apparent
intent to award credit for the full ``sentence imposed.'' See id.
Congress amended section 3624(b)(1) following the Supreme Court's
decision in Barber v. Thomas, which interpreted the provision to allow
GCT credit based on the time actually served, rather than the sentence
imposed. 560 U.S. at 483. The practical effect of that decision, as
noted above, was to place a cap of roughly 47 days per year of GCT
credit. Id. at 479. The FSA abrogated that holding, amending section
3624(b)(1) to expressly tie GCT credit to the ``sentence imposed,'' 18
U.S.C. 3624(b)(1), thereby ``allowing prisoners to earn 54 days of
credit per year, rather than 47 days.'' 164 Cong. Rec. S7774 (daily ed.
Dec. 18, 2018).
Under Alternative 1, any inmate whose sentence imposed was not a
whole number of years would earn GCT credit at a rate of less than 54
days per year. An inmate sentenced to 2.9 years, for instance, would
receive 108 days of credit (54 days for each of the first 2 years), or
an average of roughly 37 days of GCT per year. That is the kind of
result Congress sought to avoid by amending section 3624(b)(1), and for
that reason, the Bureau stated in the proposed rule that this
interpretation is erroneous, unfair, and contradictory to Congressional
intent. No commenters questioned the Bureau's rejection of this
interpretation.
Alternative 2 vs. Alternative 3
Under both Alternative 2 and Alternative 3, inmates earn 54 days of
GCT for each full year of the sentence imposed. For sentences that
include a partial year, Alternative 2 would require the Bureau not to
prorate GCT credit for the final partial year of the imposed sentence,
but rather to award a full 54 days of GCT credit for that final partial
year. The Bureau does not believe that this interpretation of the
statute--under which 54 days of credit would be awarded to an inmate
regardless of the length of the sentence imposed--would be fair or
appropriate or reflects accurately the statutory text regarding
calculation of GCT credit.
Instead, the Bureau adopts the Alternative 3 interpretation
described in the proposed rule, under which it awards prorated credit
for any partial year in an imposed sentence.
The Bureau's interpretation follows from the text of the statute,
which directs that BOP award up to 54 days for ``each year'' of the
sentence imposed, rather than for each year or partial year of an
inmate's sentence. 18 U.S.C. 3624(b)(1) (emphasis added). The best way
to effectuate that statutory command is to prorate, ensuring that an
inmate receives ``up to 54 days''--but no more--``for each year''
imposed by the court and partial credit for partial years at the end of
the sentence imposed by the court. See id. This has the effect of
maintaining the maximum rate at which inmates can earn GCT credit at 54
days per year, as directed by the statute. Alternative 2, in contrast,
would permit inmates to exceed this statutory rate. An inmate serving a
sentence of 9 years and a day, for example, would receive 540 days of
GCT credit--an average of nearly 60 days of GCT credit ``for each year
of the prisoner's sentence imposed by the court.'' Id. The alternative
would thus contravene the statutory command of awarding ``up to 54 days
for each year of the prisoner's sentence imposed by the court'' by
regularly awarding credit at a rate of more than 54 days per year. Id.
(emphasis added).
To be sure, when Congress enacted the FSA to require calculating
GCT credit by reference to the ``sentence imposed by the court,'' it
eliminated the express direction that the Bureau should ``prorate[ ]''
credit for the final ``portion of a year of the term of imprisonment,''
i.e., the final portion of the term served. The statute is now silent
as to how the Bureau should calculate credit if the sentence imposed
includes a final ``portion of a year.'' The Bureau carefully considered
that statutory history, but it ultimately concluded that any negative
inference from Congress's deletion of the prior reference to prorating
is insufficient to overcome the conflict with the current statute's
text, which limits credit to ``up to'' 54 days of credit for the last
year.\2\
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\2\ Indeed, Congress appears to have deleted the reference to
``prorated'' credit in the last sentence of section 3624(b)(1) not
in an attempt to implicitly forbid prorating, but because that
sentence no longer sets forth a special rule of calculation for the
``last year of a term of imprisonment.'' Before the FSA, Congress
directed the Bureau to calculate credit by reference to the ``term
of imprisonment''--a phrase that the Supreme Court held referred to
time served, rather than the sentence imposed. See Barber v. Thomas,
560 U.S. 474, 483 (2010). The FSA abrogated that holding, amending
the first sentence of section 3624(b)(1) to require the Bureau to
calculate credit based on the ``sentence imposed by the court'' and
to award up to 54 days for each year (including the last year) of a
sentence imposed. The last sentence now addresses only when ``credit
for the last year of a term of imprisonment'' should be awarded, not
how credit for that last year should be calculated. 18 U.S.C.
3624(b)(1) (emphases added). Because Congress no longer intended for
the Bureau to calculate GCT based on the ``term of imprisonment,''
Congress had no reason to retain the reference to prorating credit
for the ``last year of a term of imprisonment'' in this sentence.
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That is especially so because Alternative 2 would lead to
arbitrary, illogical, and unwarranted disparities among inmates. Under
Alternative 2, inmates sentenced to more time would systematically
secure an earlier release date than certain others sentenced to less
time. Table 1 below illustrates the difference, and resulting
inequities, in release dates under Alternative 2 and under Alternative
3, for a hypothetical inmate whose imprisonment term began on January
1, 2020.
[[Page 7940]]
Table 1--Application of GCT Credit Under Alternatives 2 and 3
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GCT credit for all
Sentence imposed full chronological GCT credit for Total GCT
(prison term starting years (54 days per portion of last credit Release date
Jan. 1, 2020) year) chronological year
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ALT. 2:............................. 24 months.............. 108 0 108 Sept. 14, 2021.
ALT. 3:
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ALT. 2:............................. 24 months + 1 day...... 108 54 162 July 23, 2021.
ALT. 3:............................. 0 108 Sept. 15, 2021.
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ALT. 2:............................. 25 months.............. 108 54 162 Aug. 22, 2021.
ALT. 3: 4 112 Oct. 11, 2021.
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ALT. 2:............................. 26 months.............. 108 54 162 Sept. 19, 2021.
ALT. 3: 8 116 Nov. 4, 2021.
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ALT. 2:............................. 32 months.............. 108 54 162 Mar. 22, 2022.
ALT. 3: 35 143 Apr. 10, 2022.
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ALT. 2:............................. 36 months.............. 162 0 162 July 22, 2022.
ALT. 3:.............................
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ALT. 2:............................. 37 months.............. 162 54 216 Jun. 29, 2022.
ALT. 3: 4 166 Aug. 18, 2022.
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As shown in the chart, under either alternative, an inmate
sentenced to 24 months would receive a maximum of 108 days of GCT
credit (54 days for each year) with a release date of September 14,
2021. Under Alternative 2, an inmate with a sentence of 24 months and
one day would have an earlier release date of July 23, 2021. The Bureau
would award 54 days of GCT credit for each of the two full years
imposed, as well as 54 days of credit for the additional single day,
resulting in a total of 162 days subtracted from his sentence to
calculate his release date. Alternative 3 avoids this unwarranted
disparity and inequity: The Bureau would prorate credit for the final
date of the inmate's sentence, leading to a maximum of 108 days of GCT
credit.\3\ That inmate would have a release date of September 15, 2021.
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\3\ Technically, the inmate would receive 108.188 days of GCT,
but it is the Bureau's convention to round down any partial day of
GCT to the nearest whole number. The Bureau does this because
sentences are imposed in days, rather than hours, so the Bureau
cannot award an inmate a partial day (i.e., a few hours) of GCT. Nor
can the Bureau round up to the nearest whole number, as that would
result in an inmate being released before he has earned the
requisite GCT credit.
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While courts might accept that inequitable result if Congress had
expressly required it, an agency should generally seek to avoid
introducing such anomalies in its interpretation of statutory text. Cf.
Validus Reinsurance, Ltd. v. United States, 786 F.3d 1039, 1045-46
(D.C. Cir. 2015) (courts ``must [ ] avoid statutory interpretations
that bring about an anomalous result when other interpretations [are]
available'') (internal quotation marks omitted); Sturgeon v. Frost, 139
S. Ct. 1066, 1080 n.3 & 1084 (2019) (declining to defer to an agency's
interpretation that, though ``grammatically possible,'' was
inconsistent with statute's context).\4\ In this case, it seems
unlikely that Congress would have intended inmates sentenced to longer
terms--often pursuant to Congress's statutory sentencing schemes--to,
in fact, serve shorter sentences.
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\4\ The statute does expressly create one such anomaly: The
statute on its face applies only to inmates ``serving a term of
imprisonment of more than 1 year,'' 18 U.S.C. 3624(b)(1), which
means that inmates sentenced to one year or less are not eligible
for GCT credit. Accordingly, an inmate sentenced to one year and a
day may well be released earlier than an inmate sentenced to a year.
Alternative 2, however, would make that disparity even more
pronounced, as it would allow an inmate sentenced to one year and a
day to receive 108 days of GCT credit (rather than the 54 days
received under the prorated option). It would also extend the
disparity for sentences of all lengths.
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Alternative 3 is also most consistent with the premise behind GCT
credit: Awarding sentencing credit for good conduct. In Barber v.
Thomas, the Supreme Court interpreted the pre-FSA text of section
3624(b)(1) and explained that the ``basic purpose'' of the statute was
to tie the award of GCT credits directly to good behavior during the
preceding year of imprisonment. 560 U.S. at 482. Alternative 3
maintains that relationship, while Alternative 2 would award inmates
the same amount of GCT credit despite being sentenced to (and serving)
different amounts of time. For example, under Alternative 2, an inmate
sentenced to 2 years and one day would receive the same GCT credit as
an inmate sentenced to 3 years: A total of 162 days of GCT credit.
Therefore, Alternative 2 benefits an inmate with one day left to serve
in the final year and another inmate with 365 days left to serve in the
identical way, resulting in an unfair administration of the GCT
benefit. Likewise, under Alternative 2, an inmate sentenced to 2 years
and 1 day could misbehave for several days but still end up with more
GCT credit than inmate who behaved perfectly but was sentenced to 2
years.
Some commenters believe that the Bureau incorrectly relied upon
Barber in the proposed rule, noting that ``several courts have found
the FSA amendments to have `effectively abrogate[d] Barber v. Thomas.'
'' \5\ The Bureau agrees that the FSA abrogated Barber's holding that
GCT credit should be based on time served rather than the sentence
imposed. In doing so, Congress corrected a statutory ambiguity that
resulted in inmates receiving a maximum of 47 days for each year
imposed, and the Bureau's final rule reflects that change. At the same
time, Congress retained the instruction that GCT credit only be awarded
``subject to determination by the Bureau of Prisons that, during that
year, the prisoner has displayed exemplary compliance'' with all
relevant rules and laws governing inmate conduct. 18 U.S.C. 3624(b)(1).
Congress thus retained the same underlying principle that GCT should
[[Page 7941]]
have some relation to ``exemplary compliance'' with BOP rules. A
natural reading of FSA-amended section 3624(b)(1) and adherence to the
basic purpose of the statute support prorated credit for the last year
of each inmate's imprisonment term.
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\5\ These commenters specifically cited Hoenig v. United States,
2019 WL 2006695 (N.D. Tex. May 7, 2019). Notably, however, the
Hoenig court did not find that the Bureau's interpretation of the
FSA was incorrect, but instead found that because the relevant
statutory provisions had not yet taken effect, ``the question of
whether the BOP has erred in the calculation of Hoenig's sentence is
premature and not yet ripe.'' See id. at *2.
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Separately, some commenters assumed that section 3624(b)(1)'s
``first day of the last year of the term of imprisonment'' refers to
the first day of the final calendar year of each inmate's imprisonment
term. However, section 3624(b)(1) makes clear that credit for ``each
year'' must be calculated using the length of sentence actually imposed
by the court. 18 U.S.C. 3624(b)(1) (emphasis added). The Bureau thus
calculates the maximum amount of GCT credit available, and the
effective term to serve, based on the sentence imposed, and uses that
number to calculate the number of full years (``anniversary periods'')
that an inmate will serve if he receives maximum GCT credit. Therefore,
the ``first day of the last year of the term of imprisonment'' is the
final anniversary date.
Since the publication of the proposed rule, courts have upheld the
Bureau's general interpretation of how to calculate GCT credit under
the FSA, though none have addressed the specific question at issue
here. In Chambers v. Ebbert, for example, the court approved the
Bureau's calculation of GCT credit after an inmate challenged the
Bureau's assertion that less was earned due to the inmate's
unsatisfactory progress towards earning a GED. The court stated that
the inmate is ``eligible, but not automatically entitled, to receive up
to 54 days of good conduct time for each of his 15 years of
imprisonment,'' and that the Bureau had engaged in a careful review of
the ``anniversary date for year-end sentence calculations.'' Chambers
v. Ebbert, 2020 WL 1183321 (M.D. Penn. Mar. 12, 2020). See also Lewis
v. Rios, 2020 WL 555373 (D. Minn. Jan. 13, 2020); United States v.
Bowie, 2019 WL 6464790 (D. Minn. Dec. 12, 2019); United States v.
Rivera, 2019 WL 6464786 (D. Minn. Dec. 12, 2019); Frazer v. Petrucci,
2019 WL 5887302 (S.D.N.Y. Nov. 8, 2019).
For the above reasons, the Bureau adopts the interpretation of the
FSA and the method of calculation of GCT credit described in
Alternative 3 of the proposed rule.
Comment: The rule is inequitable if an inmate receives a low-level
sanction and GCT credit is withheld or denied. One commenter was
concerned that under the new regulation, GCT credit might be withheld
if an inmate violates a ``low-level'' or low-severity prohibited act
code under the current inmate disciplinary regulations at 28 CFR part
541. That is not the Bureau's intention, and such a policy was not
reflected in the proposed rule.
The proposed rule indicated that a sanction of forfeiture,
disallowance, or withholding of GCT credit may only be imposed after
the due process requirements described in 28 CFR part 541 as part of
the inmate disciplinary process have been followed, and only if such a
sanction is found to be appropriate for the severity level category of
the prohibited act committed by the inmate.
The list of prohibited acts and corresponding available sanctions
can be found in current regulations at 28 CFR 541.3 (Table 1--
Prohibited Acts and Available Sanctions). Prohibited acts are divided
into four categories based on severity: Greatest, High, Moderate, and
Low. Each category is accompanied by a list of sanctions which may be
imposed by the Bureau after an inmate is found to have committed a
prohibited act in that category, following the appropriate due process
procedures in 28 CFR part 541.
The proposed rule did not alter current procedures for the sanction
of forfeiture, disallowance, or withholding of GCT credit for
commission of prohibited acts, and the final rule likewise does not
change the current system.
That said, the Bureau is committed to ensuring that the forfeiture,
disallowance, or withholding of GCT credit for commission of prohibited
acts--and the restoration of that GCT credit--is administered equitably
across all individuals in all facilities. To that end, the Department
of Justice will conduct and publish a demographic analysis over the
past three years of (1) all prohibited acts that have led to the
forfeiture, disallowance, or withholding of GCT credit; and (2)
instances in which GCT credit was restored to determine whether any
practices are leading to a disparate impact. This information will be
part of the Bureau's evaluation whether a notice of proposed rulemaking
regarding the classification of prohibited acts and their available
penalties under the current inmate discipline program, codified at 28
CFR part 541, is warranted.
Comment: Does the Bureau require a risk and needs assessment and a
release plan as conditions for earning GCT credit? Several commenters
submitted comments regarding the Bureau's use of ``risk assessments''
under the FSA as a condition of earning GCT credit. One commenter asked
whether inmates are required to undergo a ``needs assessment'' or have
a ``solid release plan'' as ``conditions of obtaining'' GCT credit,
opining that if these requirements were imposed, recidivism rates would
decrease tremendously. The commenter indicated that ``the rule does
mention that attending literacy classes or classes to obtain a GED
would be one of the ways to earn credit[, as would] participating in
any Bureau-authorized program. I am assuming the needs assessment falls
under the Bureau-authorized program.''
The commenter also noted that the FSA requires the Bureau to
conduct inmate risk assessments, which the commenter suggested should
help the Bureau to set programming goals for inmates, asking: ``could
participation [in] these assessment[s] be a mandated requirement to
receiv[e] GCT credit[?] It sounds like it[']s up to the Bureau['s]
discretion.''
The commenter correctly interprets the FSA, but misunderstands the
purpose of this rule, which is to explain how GCT credit will be
calculated under the FSA. The changes to the method for calculating GCT
credit are required by section 102(b) of the FSA, which amends 18
U.S.C. 3624(b) to indicate that inmates may receive up to 54 days of
GCT credit for each year of the sentence imposed by the court, instead
of for each year of actual time served.
The commenter is confusing the changes to GCT credit calculations
mandated by section 102(b) of the FSA with FSA ``Time Credits,'' which
are authorized under section 101 of the FSA, and for which the Bureau
will be publishing a separate rule. Broadly speaking, section 101 of
the FSA provides that an eligible inmate in Bureau custody who
successfully completes Evidence-Based Recidivism Reduction programs or
Productive Activities may earn FSA Time Credits to be applied towards
prerelease custody (i.e., transfer to a Residential Reentry Center
(RRC) or home confinement for service of a portion of the inmate's
sentence) or early transfer to supervised release (i.e., early
satisfaction of the inmate's sentence) under 18 U.S.C. 3624(g). FSA
Time Credits are not the same as GCT credits and will not be earned or
applied in the same manner.
The commenter's confusion is understandable. Section 102(b)(2) of
the FSA indicated that all the amendments made by section 102
(pertaining to GCT credits) could only take effect after the Attorney
General completed and released the risk and needs assessment system
described in section 101(a) (largely pertaining to FSA Time
[[Page 7942]]
Credits).\6\ The Department of Justice publicly released this risk and
needs assessment system on July 19, 2019. Therefore, in the proposed
rule, we explained that the Bureau had already begun recalculating
release dates due to the changes made by section 102(b) to the Bureau's
GCT credit calculation method in anticipation of the July 19, 2019
release of the risk and needs assessment system.
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\6\ Section 101(a) amends 18 U.S.C. 3632(a) to require the
Attorney General to consult with an Independent Review Committee,
also authorized by the FSA, to develop a risk and needs assessment
system.
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Because explaining this point required a discussion of the release
of the risk and needs assessment, the proposed rule may have given the
impression that the risk and needs assessment was somehow connected to
the process of calculating GCT credit, which is incorrect. The only
connection between the risk and needs assessment and GCT credit is that
the FSA conditioned the Bureau's implementation of the modified method
of GCT credit calculation on the timing of the public release of the
risk and needs assessment tool. Otherwise, as a practical matter,
earning GCT credit is not predicated or conditioned upon any
requirement that inmates have a plan for release or go through a risk
assessment.
Comment: The proposed rule would prevent elderly offenders eligible
for home confinement from earning GCT. One comment was comprised
entirely of what appeared to be a reprint of an article or editorial
entitled ``Durbin, Lee Introduce Bill To Allow Nonviolent Elderly
Prisoners Eligible For Release To Home Confinement To Benefit From Good
Time Credit.'' The article had an explanatory subtitle: ``The First
Step Act Reauthorized And Expanded A Pilot Program To Place Elderly And
Terminally Ill Inmates In Home Confinement, But BOP's Misinterpretation
Of This Provision Will Result In Elderly Offenders Unnecessarily
Spending A Longer Time Behind Bars Before Becoming Eligible For Release
To Home Confinement.''
This comment (including the article it reproduces) appears to refer
to a bill passed in the House of Representatives on December 3, 2019 as
H.R. 4018 and introduced in the Senate on December 12, 2019 as S.3035,
the Elderly Home Detention Pilot Program Technical Corrections Act of
2019. The House Judiciary Committee Report accompanying this bill
explains that H.R. 4018, a bill `` `[t]o provide that the amount of
time that an elderly offender must serve before being eligible for
placement in home detention is to be reduced by the amount of good time
credits earned by the prisoner, and for other purposes,' would ensure
that participants in the Second Chance Act elderly prisoner pilot
program receive credit for good conduct time.'' H. Rept. 116-311, at 2
(2019).
The Bureau's current practice permits inmates who participate in
the elderly prisoner pilot program to earn GCT credit, calculated with
respect to their projected release date. The projected release date
includes release from time in home detention or community confinement.
S.3035 would not affect the Bureau's process for calculating GCT
credit, but rather the determination of eligibility for elderly
offender home confinement. The bill would provide that elderly
offenders would become eligible for home confinement under the elderly
offender pilot program if they had served two-thirds of their sentence
as calculated based on their projected release date (which might be
reduced by GCT credit), instead of their full term of sentence as
imposed by the court. This new method of calculating eligibility for
elderly offender home confinement would not impact an inmate's actual
accrual or application of GCT credit in any way.
Comment: The proposed rule will NOT make inmates eligible for the
maximum of 12 months prerelease Residential Reentry Center (RRC)
placement, contrary to the Second Chance Act's amendments to 18 U.S.C.
3624(c)(6)(C). Section 3624(c)(6)(C) of title 18 requires the Bureau to
ensure that community confinement placement is ``of sufficient duration
to provide the greatest likelihood of successful reintegration into the
community.'' One commenter felt that the statute's requirement of
``sufficient duration'' should be interpreted to require the Bureau to
afford qualifying inmates the maximum of 12 months of prerelease RRC
placement.
As an initial matter, this comment does not address the proposed
rule or the revised method of computing GCT credits under the FSA, and
thus is not relevant to the final rule the Bureau issues today.
Nonetheless, the Bureau notes that the commenter may have inadvertently
overlooked the provisions directly before subparagraph (C). In
subparagraph (A), the statute also requires the Bureau to ensure that
community confinement is consistent with 18 U.S.C. 3621(b), which
mandates that the Bureau designate each inmate to a place of
imprisonment subject to a list of specific factors. The Bureau is
specifically instructed by this statute to consider, for each
designation determination, bed availability, the specific inmate's
security designation, programming needs, mental and medical needs,
faith-based needs, sentencing court recommendations, security concerns,
and proximity to the inmate's primary residence.
Additionally, the Bureau must also consider the resources of the
facility, the circumstances of the inmate's offense, the inmate's
history and characteristics, court statements regarding the purposes of
the sentence imposed, and recommendations or relevant policies of the
Sentencing Commission. Consideration of all these very specific factors
necessarily requires a case-by-case determination, as required by the
remainder of 18 U.S.C. 3624(c)(6)(B), which, after referring to the
exhaustive list of required designation considerations in section
3621(b), further reinforces that the Bureau must make the determination
of community confinement placement ``on an individual basis.'' 18
U.S.C. 3624(c)(6)(B).
In the context of the full text of the statute, therefore, the
commenter's assertion that 18 U.S.C. 3624(c)(6)(C) requires the Bureau
to allow 12 months of community confinement in all cases, for all
inmates, seems to be incorrect. This reading of the statute directly
conflicts with the statute's mandate that the Bureau make this
determination after a careful and thorough consideration of many
factors on an individualized basis.
Comment: With regard to literacy requirements, there should be
several changes to the Bureau's education programs. One commenter
recommended specific ratios of GED, alternative literacy, and
vocational training ``tutors'' per number of inmates, suggested that
the Bureau provide payment and bonuses to inmates who tutor other
inmates, and encouraged inmate placement in United States Department of
Labor apprenticeship programs for teacher's aides. These
recommendations will be taken under consideration by the Bureau and in
consultation with Departments of Labor and Education, as appropriate,
as it continues to develop inmate educational and vocational training
opportunities.
Change in terminology regarding immigrants in federal custody. We
make one minor change to conform with Executive Order 14012, Restoring
Faith in Our Legal Immigration Systems and Strengthening Integration
and Inclusion Efforts for New Americans, issued on Feburary 2, 2021,
and Executive Order 14010, Creating a Comprehensive Regional Framework
to Address the Causes of Migration, to Manage
[[Page 7943]]
Migration Throughout North and Central America, and to Provide Safe and
Orderly Processing of Asylum Seekers at the United States Border,
issued on February 5, 2021. Those Executive orders use the term
``noncitizen'' in place of the terms ``alien'' or ``illegal alien.''
Consistent with this representative change in terminology, and to
promote accuracy, we likewise change the term ``alien'' in 28 CFR
523.20(d)(3) to ``noncitizen'' wherever it appears.
Regulatory Analyses
Executive Orders 12866 and 13563. Because this rule may raise novel
legal or policy issues arising out of implementation of the First Step
Act, the Office of Management and Budget (OMB) has determined that it
constitutes a ``significant regulatory action'' under section 3(f) of
Executive Order 12866 and has reviewed it.
Executive Order 13132. This regulation will not have substantial
direct effect on the States, on the relationship between the National
Government and the States, or on distribution of power and
responsibilities among the various levels of government. Therefore,
under Executive Order 13132, we determine that this regulation does not
have sufficient federalism implications to warrant the preparation of a
Federalism Assessment.
Regulatory Flexibility Act. The Director of the Bureau of Prisons,
under the Regulatory Flexibility Act (5 U.S.C. 605(b)), reviewed this
regulation and by approving it certifies that it will not have a
significant economic impact upon a substantial number of small entities
for the following reasons: This regulation pertains to the correctional
management of offenders committed to the custody of the Attorney
General or the Director of the Bureau of Prisons, and its economic
impact is limited to the Bureau's appropriated funds.
Unfunded Mandates Reform Act of 1995. This regulation will not
result in the expenditure by State, local, and tribal governments, in
the aggregate, or by the private sector, of $100,000,000 or more in any
one year, and it will not significantly or uniquely affect small
governments. Therefore, no actions were deemed necessary under the
provisions of the Unfunded Mandates Reform Act of 1995.
Congressional Review Act. This regulation is not a major rule as
defined by the Congressional Review Act, 5 U.S.C. 804.
List of Subjects in 28 CFR Part 523
Prisoners.
Michael D. Carvajal,
Director, Federal Bureau of Prisons.
Under rulemaking authority vested in the Attorney General in 5
U.S.C. 301; 28 U.S.C. 509, 510 and delegated to the Director, Bureau of
Prisons, in 28 CFR 0.96, we amend 28 CFR part 523 as follows:
PART 523--COMPUTATION OF SENTENCE
0
1. The authority citation for 28 CFR part 523 continues to read as
follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 3568 (repealed November 1,
1987, as to offenses committed on or after that date), 3621, 3622,
3624, 3632, 3635, 4001, 4042, 4081, 4082 (repealed in part as to
conduct occurring on or after November 1, 1987), 4161-4166 (repealed
October 12, 1984, as to offenses committed on or after November 1,
1987), 5006-5024 (repealed October 12, 1984, as to conduct occurring
after that date), 5039; 28 U.S.C. 509, 510.
0
2. Revise Sec. 523.20 to read as follows:
Sec. 523.20 Good conduct time.
(a) The Bureau of Prisons (Bureau or BOP) awards good conduct time
(GCT) credit to inmates under conditions described in this section. GCT
credit may be reduced if an inmate:
(1) Commits prohibited acts which result in certain disciplinary
sanctions (see part 541 of this chapter); or
(2) Fails to comply with literacy requirements in this section and
part 544 of this chapter.
(b) For inmates serving a sentence for offenses committed on or
after November 1, 1987:
(1) The Bureau will award inmates up to 54 days of GCT credit for
each year of the sentence imposed by the court. Consistent with this
methodology, the Bureau will initially determine a projected release
date by calculating the maximum GCT credit possible based on the length
of an inmate's imposed sentence. The projected release date is subject
to change during the inmate's incarceration.
(2) The Bureau will award prorated credit for any partial final
year of the sentence imposed, subject to the requirements in this
section. Accordingly, BOP calculates the projected GCT credit to be
awarded for any portion of a sentence that is less than a full year at
a prorated amount.
(3) An inmate may receive up to 54 days of GCT credit on each
anniversary date of his or her imposed sentence, subject to the
requirements in this section. Credit for the last year of a term of
imprisonment is awarded the day after the end of the final
``anniversary period,'' unless the final year is a complete year, in
which case credit for the last year is awarded on the first day of the
final anniversary period
(4) When the inmate reaches the Bureau-projected release date, the
sentence will be satisfied and the inmate will be eligible for release.
(c) For inmates serving a sentence for offenses committed on or
after November 1, 1987, but before September 13, 1994, GCT credit is
vested once received and cannot be withdrawn.
(d)(1) For inmates serving a sentence for offenses committed on or
after September 13, 1994, but before April 26, 1996, all GCT credit
will vest annually only for inmates who have earned, or are making
satisfactory progress toward earning, a high school diploma, equivalent
degree, or Bureau-authorized alternative program credit (see part 544
of this chapter).
(2) For inmates serving a sentence for an offense committed on or
after April 26, 1996, the Bureau will award:
(i) Up to 54 days of GCT credit for each year of the sentence
imposed, applied on the anniversary date of his or her imposed
sentence, if the inmate has earned or is making satisfactory progress
toward earning a high school diploma, equivalent degree, or Bureau-
authorized alternative program credit; or
(ii) Up to 42 days of GCT credit for each year of the sentence
imposed, applied on the anniversary date of his/her imposed sentence,
if the inmate does not meet conditions described in paragraph (d)(2)(i)
of this section.
(3) Notwithstanding the requirements of paragraphs (d)(1) and (2)
of this section, a noncitizen (inmate who is not a citizen of the
United States) who is subject to a final order of removal, deportation,
or exclusion, is not required to participate in a literacy program to
earn yearly awards of GCT credit. However, such inmates remain eligible
to participate in literacy programs under part 544 of this chapter.
[FR Doc. 2022-02876 Filed 2-10-22; 8:45 am]
BILLING CODE 4410-05-P
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</html>Indexed from Federal Register on February 11, 2022.
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