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  • Writer's pictureFederalSentencingAlliance

First Step Act- Time Credits Earned, But Not Applied- District Court Semantics Explained (Monterio)

Updated: Sep 18, 2021

Monteiro v. Spaulding is a habeas corpus petition case, where defendant is asking the District Court to force the BOP to apply pre-release earned time credits to his incarcerative time served account. Monterio wants to be transferred to home confinement, still under BOP control. That's what Monterio thinks he's entitled to under the First Step Act. Monterio is. The Monterio opinion is representative of other (deflating) majority district court opinions nationally. The majority opinion cases resulting in denials, typically involve some sort of circular play on words, involve the use of semantics, involve blind faith acceptance of whatever BOP counsel tells the Court, are poorly written, contain wrong dates, are not fully briefed, and never address an inmates rights under the First Step Act, that are rendered ultra vires as a result.

The Monteiro (semantics) mental teaser:

"Petitioner cites a decision from the United States District Court for the District of New Jersey, Goodman v. Ortiz, No. 20-cv-7582, 2020 WL 5015613 (D.N.J. Aug. 25, 2020), where the court excused the petitioner's failure to exhaust his administrative remedies because the issue involved in his habeas petition involved only statutory construction. There, both parties admitted that the petitioner had completed the activities needed for an earlier release date under the First Step Act , 18 U.S.C. § 3632(a), and that petitioner would be eligible for these additional time credits due to his completion of these activities. The respondent [in this case], however, contended that it was not required to award this additional time credit to the petitioner until after the two year phase-in period for the statute had expired on January 15, 2022. Goodman is inapplicable to Petitioner's circumstance because the parties dispute whether Petitioner has earned additional time credits to be awarded under the First Step Act . Thus, the issue here is not one only involving statutory construction." Really, why not? [That was the quintessential pivot in the Monteiro Case that is unfair, because the Court just accepted the BOPs argument that Monteiro did not earn time credits, easily verifiable. That not only represents a cop out, but is shameful, for the reasons described below..]

Successful completion of programs and activities was publicly stated as THE milestone event triggering an AWARD of time credits. The statutory construction by the Monteiro Court should discerned whether timely application of time credits earned was mandatory, not whether time credits were awarded. Programs were successfully completed by Monterio. Time credits to be awarded upon successful completion are published by the DOJ on the face of the "Evidence-based Recidivism Reduction (EBRR) Programs and Productive Activities (PA)" ("List"). That List was published by the Department of Justice. The List says "hours awarded for completion" in the footnotes of document. It does not say "hours awarded at BOPs discretion, after January 15, 2022". The majority does not ask the BOP to prove what it "contends".

These are the types of district court semantics continue to plague timely application of First Step Act Pre Release Earned Time Credits in the United States.

Several months ago the BOP argued that time credits could be Awarded, but that the BOP was not mandated to Apply those credits until after January 15, 2022 to an inmate's time credit account. In Monterio, however, the BOP argued that Monterio did not even Earn time credits to be Awarded. That statement from the Monteiro opinion literally means that after Monteiro successfully completed an incentive program or activity, that Monteiro must further Earn the right to the Award of credits . How does Monteiro do that? The Monteiro decision is either a mental teaser or just plain mental.

When one fact checks the basis for these majority opinions, they do not make logical common sense from a plain reading. The majority opinion denials read like a modern day version of the "Gong Show".

BOPs arguments, most of time, involve BOP policy arguments that keep changing like the wind. Goodman v. Ortiz is a perfect example of changing wind BOP policies and rules. After the BOP lost the Goodman case, badly, the BOP ran out and changed it Rules, by publishing proposed Rule changes in the Federal Register on November 25, 2020. Specifically, the BOP patched all of the holes that caused the BOP to lose the Goodman case. Some of those Rule Changes, however, actually look like LAWS being promulgated by the BOP. They look like substantive LAWS, because they diminish substantial inmate rights conferred by the First Step Act. Then these Rule Changes are argued in Court like the Gospel, causing the district court to reference what the BOP "contends". The BOPs Rules are much more than Rules, the BOPs Rules are effectively Commandments accepted by the majority of District Courts without exception. The BOP holds all the cards with this, and the majority has given the BOP unbridled authority and discretion with time credit issues.

Another problem arises when the District Court does not require the BOP to prove what it is saying in Court to win arguments. There is nobody fact checking or law checking the BOP in Court most of the time. That is shameful.

To date the United States District Courts have done their best to ignore the elephant in the room with time credits earned but not timely applied. Congressional action will likely be required at this point to clarify vague provisions of the First Step Act that have given flight to these sorts of fundamentally unfair dispositions going forward. For starters, inmates need to be given official supplemental standing to complain about time credit issues to a district court judge, like they already enjoy for good time credit issues. Second, the U.S. Government Accountability Office needs to do a meaningful review of BOP Rules that diminish substantive rights conferred to inmates under the First Step Act. Third, President Biden needs to incorporate in his touted "Vision" for Criminal Justice Reform in 2021, Senator Dick Durbin (D-IL) and Representative Jerry Nadler (D-NY) pending First Step Act Implementation related Bills, pending in the 117th Congress. Fourth, Attorney General Merrick Garland needs to respond to this May 5, 2021 Letter from Senator Dick Durbin, identifying many of these same BOP time credit failures. There is the elephant in the letter - plain as day.

Senator Durbin if you are reading this, we know how hard you are working to fix these problems and appreciate you. Godspeed!


These things need to be resolved in 2021 and we are hopeful they will be.

For further information please contact Federal Sentencing Alliance or Interrogating Justice at

Mental Teaser Photo: That photo is either a COVID-19 Variant from the CDC Website or a blue colored fireworks close up from the beach last July 4th.


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