The First Step Act of 2018 requires the BOP to award time credits toward early release if an eligible prisoner successfully completes evidence-based recidivism reduction programming or productive activities. [1] However, not all prisoners can get this credit. Prisoners serving sentences for a litany of of specific offenses are ineligible [2], arguably those in most need of incentives. But what of a prisoner who already served the sentence for his original disqualifying offense, was release from prison under order of probation or supervised release, and later returned to prison for having violated the court’s order regarding the terms of his release? The BOP currently argues that such prisoners are also ineligible.
In 2010, Khaleef Daniels pled guilty to crack offenses and possessing a firearm in relation to a crime of violence, in violation of 18 USC 924(c), one of the many offenses that Congress has excluded from FSA time credit eligibility. In 2015, after serving his sentence for those offenses, Daniels was placed on supervised release, a form of federal probation, for three years. In 2018, while on supervised release for the 924(c) conviction, Daniels was arrested for possessing a firearm by a convicted felon, a violation of 18 USC 922(g). Unlike prisoners serving 924(c) sentences, those serving 922(g) sentences are not excluded from FSA time credit eligibility. Daniels pled guilty to the new charges and the court sentenced him to 10 years on the new 922(g) charge. However, by possessing a firearm, Daniels also violated the terms of the court’s order of supervised release in connection with the prior 924(c) case. For this, the court sentenced Daniels to serve an additional 366 days imprisonment consecutive to the new 10-year sentence.
When Daniels later asked the BOP to award him programming credit under the FSA, his request was denied. The BOP agrees, as it must, that Daniels current sentence for violating 922(g) does not disqualify him from receiving FSA credits. Rather, because prisoners serving sentences for violations of 924(c) are not eligible for the credit, and because Daniels was sentenced to serve 366 days for violating the court’s terms of supervised release entered in the 924(c) case and ordered to serve it consecutively to the 10 years imposed on the new charges, the BOP reasons that Daniels is ineligible for FSA time credits on either sentence. The BOP couldn’t be more wrong.
The law only disqualifies a prisoner from FSA credit eligibility if “serving a sentence for a conviction under any” disqualifying offense. Daniels’ 366-day sentence is not being served for violating the disqualifying offense of 924(c), or for any offense for that matter. Rather, it is being served for violating the terms of the court’s supervised release order. Such a “violation of supervised release is not a crime” [3], nor is it a violation of any act of Congress but instead a violation of a court order. [4] Accordingly, as a matter of law, those serving sentences for violating such court orders are not FSA ineligible. The BOP’s current position is simply wrong and is ripe for legal challenge and Daniels promises to present that challenge in federal court once administrative remedies are exhausted.
It remains unclear how many federal prisoners serving sentences for violating terms of supervised release are being improperly denied FSA credit based on their underlying offense conduct. But whatever that number, it is anything but insignificant. The BOP has created too much confusion around FSA credit eligibility. The statute is very simple, complicated only by the BOP’s implementing rules and novel interpretations and misinterpretations. Hopefully the Department of Justice will step in and correct the BOP without legal action. But if it doesn’t, Daniels will prove an important test case.
[1] 18 USC 3632(d)(4)
[2] 18 USC 3632(d)(4)(D). The full list of exclusions include no less than 80 statutory offenses.
[3] United States v. Marvin, 135 F.3d 1129, 1138 n.14 (7th Cir. 1998)
[4] See United States v. Woodard, 675 F.3d 1147, 1151-52 (8th Cir. 2012)