BOP Productive Activity Rules and Approved "List" Make it Impossible to Earn Meaningful Time Credits
Updated: Sep 23, 2021
Cazares v. Cooper, Case No.: 3:20-cv-02019-AC (Dist. OR 2021), is a habeas corpus productive activity First Step Act earned time credits case. Adrian Cazares filed a habeas corpus petition asking the Court to Order the Bureau of Prisons to Apply time credits that he "earned" for successfully completing an array of productive activities logged over an extended time period, under the First Step Act. Cazares held prison jobs such as a painter and an HVAC (e.g. heating, ventilation and air conditioning) worker, and also completed courses, such as anger management, entrepreneurship, and a residential drug abuse program. Cazares is endeavoring to get earned time credits applied to reduce the incarcerative portion of his sentence, for earlier transfer to home confinement custody, still under the control of the BOP. Cazares is only asking for what he believes that he is entitled to; nothing more. The Cazares case is lined up to be a landmark 2021 time credits case. To date, it is still under advisement by the Oregon District Court.
But the United States Attorney on behalf of the Bureau of Prisons told the Judge that none of Cazares activities are on the BOP's approved productive activities list; that resulted in this exchange, identifying the elephant in the room:
"If HVAC work doesn't qualify, what kinds of jobs do?" asked Magistrate Judge John Acosta, noting the program's goal of reducing recidivism and facilitating reintegration into society.
"The ones that are identified by the Bureau of Prisons," AUSA Jared Hager replied, noting the inmates have "not shown entitlement to any credit." Quote Source: Reuters Article HERE
We did some checking and found out that the BOP's original January, 2020 (approved and vetted 6 page) List list looks unduly restrictive on its face. We even found a bigger List, dated October, 2020 (more text but substantially the same programs and activities as before). Then we found a July, 2021 List HERE, that appears to be the most current List. If this all looks confusing, it is. The interesting thing about the new Lists is that they just appear online without any public announcement first. So, if you're not specifically looking for a new List you will be surprised later that one came out. Hence the July, 2021 List that even caught us by surprise.
The "List" looks unduly restrictive to the point of rendering meaningful time credits earned by any inmate virtually impossible to achieve. It does not include individual activities. Bear in mind that those inmates with minimal to low risk of recidivism are the same inmates that productive activity credits are designed to directly benefit the most under the First Step Act. But, the current BOP scheme does not help those minimal to low recidivism risk inmates one iota. Instead, its oppressive.
The term "productive activities" is one of the few terms that was actually defined by Congress in the body of the First Step Act of 2018, as follows:
"(5) Productive activity.-The term "productive activity" means either a group or individual activity that is designed to allow prisoners determined as having a minimum or low risk of recidivating to remain productive and thereby maintain a minimum or low risk of recidivating, and may include the delivery of the programs described in paragraph (1) [footnote omitted] to other prisoners." 18 U.S.C. 3635(5)
According to Congress' definition, productive activities should be expansive, and could include just about any work related services, such as providing janitorial services, resulting in any acceptable work product, or any other meaningful work related service engaged by minimal or low risk of recidivism inmates in prison.
Therefore, the listed productive activities appear only to be limited by the BOP's willingness to embrace activities performed by inmates and to label those activities "productive activities", upon which, time credits can be earned. Why isn't an HVAC worker entitled to productive activity credits then?
This seems to be yet one more area where the BOP is engaging in destructive semantics, e.g. an inmate can be engaged in a full time activity for the benefit of the prison, but yet, receive no credit for that activity, simply because its not labeled as "productive" on a List.
So, it looks like the onus lies directly upon the BOP to support its position on this one. We are unsure how that can be done. The BOP cannot use the "may" word to justify this huge disparity. There is no "may" word in the operative definition of productive activities, but rather the "may" word only comes into play with a BOP decision whether to permit one inmate to instruct another inmate. This BOP argument just seems to be "if its not on the list, you must dismiss!". We don't think that's going to hold water with Judge John Acosta.
What did the BOP say qualified as a Productive Activity Anyway?
The Bureau of Prisons compiled a short List of group activities that IT labeled "productive activities" for earned time credit purposes. Any current productive activities List would require: 1.) the activity to be available at any particular facility; 2.) the activity to be currently offered when wanted; 3.) the activity to not already be full when the inmate wants it; and 4.) the activity to be either in classroom, or otherwise taught by an instructor. The time credits award upon successful completion is then based on THE number of hours listed in the Program Guide (and currently computed as 8 hours = one day). Folks its set up just like recidivism reduction programming, but its not.
By creating a productive activities approved List in this manner, the BOP has complete control over how many "hours" can possibly be awarded to any given inmate, rendering that inmate's efforts to fully embrace productive activities for full time participation in earned time credit activities futile. Because it is futile the inmates rights are ultra vires. Because these shenanigans effect the length of prison time that an inmate must serve, the question then arises whether the inmate has a constitutional right to ensure that time credits are awarded and applied properly. That decision has yet to be made by any District Court in the United States. That very issue will be eventually raised before a judge willing to embrace it, infra, See Poulson.
Unless the BOPs policies, rules, and Lists change, there will be no more "incentive" in "incentive programming" it will just be "programming". See related letter from Senator Dick Durbin to A.G. Merrick Garland HERE regarding BOPs efforts to disincentivize programming, the opposite of Congressional intent under the First Step Act.
Going Forward Is There A First Step Act Earned Time Credits Liberty Interest?
A District Court still needs to find, as a matter of law, that an inmate has a protected First Step Act earned time credits Liberty interest guaranteed by the Fifth Amendment to the United States Constitution. In that regard.
District Court Judge Renee Marie Bumb Opinions, District New Jersey-
We found once isolated case, Poulson v. Warden, FCI Schuylkill, Civil Action No. 19-17642 (RMB) (Dist. NJ Nov. 5, 2019), where District Court Judge Renee Marie Bumb strongly hinted that earned time credits and good time credits should be treated the same for habeas corpus petitions. Since inmates have a Liberty interest in good time credits earned and applied properly and timely, there is no reason why earned First Step Act time credits should not also be deemed a Liberty interest. Also note that District Court Judge Renee Marie Bumb, is same judge that wrote the Goodman v. Ortiz [Goodman Pacer documents attached] time credits opinion in 2020, that is currently the minority District Court opinion in play.
The Poulson opinion looks like a diamond in the rough to us. Check it out and critically analyze what Judge Bumb is saying in that opinion; specially considering the open question whether inmates have a Liberty interest to First Step Act pre-release earned time credits. That judicial determination would be a game changer on a variety of fronts.
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