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Majority: BOP Not Mandated To Award First Step Act Earned Time Credits Until After January 22, 2022

Updated: Aug 30, 2021

Hundreds of inmates nationally have been filing pro se petitions for writ of habeas corpus, pursuant to 28 U.S.C. § 2241, claiming they are still imprisoned past their earned release dates, because early release time credits under the First Step Act, 18 U.S.C. § 3632(4), were not applied by the Bureau Of Prisons to reduce their prison sentences.

Here is the Link to Federal Sentencing Alliance and Attorney Ralph S. Behr August 27, 2021 Publication on this very issue titled: 'First Step Act- Pre-Release Earned Time Credit Programs & Activities: Bureau of Prisons Efforts to Undermine Incentive Programming, 2019-2022 Paperback – August 27, 2021' available from Amazon with Free Prime Delivery click HERE.

The Minority Opinion (Goodman v. Ortiz, 2020 WL 5015613 (D. N.J. Aug. 25, 2020)-

The minority opinion IS THE case of Aryeh Goodman v. Ortiz, Case No.: 1:20-cv-07582-RMB (D-NJ), where the Honorable Renée Marie Bumb decided that Goodman was entitled to a 120 day prison time credit for successfully completed First Step Act programs and activities, regardless that the Bureau of Prisons position was that it was under no obligation to award any time credits until after January 22, 2022. Goodman filed a pro se petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2241. The United States Response in opposition is HERE. The opinion Link above is the same written opinion filed in the case.

"The BOP's position that a prisoner can complete the PATTERN program before January 15, 2022 with no benefit to the prisoner is contrary to the statutory language, not to mention the unfairness of such a result. Therefore, the Court concludes that Petitioner is entitled to habeas relief. The Court will direct the BOP to immediately apply Petitioner's Earned Time credit of 120 days in an accompanying Order. *16 Date: 16 August 25 , 2020 /s/Renée Marie Bumb" Goodman, supra.

From a common sense approach it seems that once the Bureau of Prisons places an inmate into an approved recidivism reduction program or productive activity that is successfully completed by an inmate, the time credit award should be immediate, simply because it was earned and due to the inmate. If inmates earned those credits under the watchful eye of prison officials, they should timely receive those credits, in order to receive the benefit from those time credits that the First Step Act intended.

The Majority View-

However, the majority of United States District Courts have ruled that it is not mandatory for the Bureau Of Prisons to award early release time credits for successful completion of Department of Justice approved recidivism reduction programs and/or productive activities, pursuant to 18 U.S.C. § 3632(4), at any time prior to January 22, 2022; the last day of the "phase in period" requiring full implementation of early release programming, pursuant to the First Step Act.

The majority interpretation makes First Step Act 18 U.S.C. § 3632(4) ultra vires for thousands of inmates that have been, and will be, released prior to January 22, 2022, without receiving any early release earned time credits under the First Step Act for programs and activities earnestly completed prior to their time served dates. The majority interpretation can also mean, ipso facto, that the Bureau of Prisons may never be mandated to award early release earned time credits under the First Step Act, earned by inmates prior to January 22, 2022, because inmates have no standing to complain to begin with.

The open question remains: What happens to time credits earned, but not applied during the period January, 2020 through January, 2022?

Here are a couple opinions representing the majority view on this issue nationally, and specifically rejecting the minority view of Goodman v. Ortiz:

United States v. Martinez, No. 5:12-cr-00769-EJD-1 (N.D. Cal. June 14, 2021);

Depoister v. Birkholz, Civ. 21-684 (ECT/BRT) (D. Minn. July 8, 2021);

Cornell v. Bennett, 4:21-CV-04056-RAL (D.S.D. July 21, 2021);

Kennedy-Robey v. Warden, FCI Pekin, No. 20-cv-1371 (C.D. Ill. Mar. 2, 2021); and

Novotny v. Yankton FPC, 4:21-CV-04074-RAL (D.S.D. July 21, 2021).

One has to wonder if the majority's true motive is to forestall tens of thousands of pro se habeas corpus petitions from flooding federal District Courts, based on the failure of the Bureau of Prisons to timely apply prison time credits earned during the extended period January, 2020 through January, 2022. Although, the majority opinions recognize that the BOP should timely award time credits earned, they also allege they cannot force the BOP to do so.

None of these courts considered whether the Bureau of Prisons waived its alleged right to withhold application of time credits by placing inmates into programs and productive activities during the phase in period, per se.

The First Step Act never provided standing to an inmate to complain directly to a District Court regarding the applicatsapplication of time credits earned, which was, and continues to be, a gaping hole in that legislation from the beginning. At the same time, substantial fairness, good faith, and the overall goal of transparency requires timely application of time credits earnestly earned under the tenets of the First Step Act.

Senator Dick Durbin (D-IL) and Representative Jerry Nadler (D-NY) are trying to fix some of the implementation loopholes in the First Step Act in the 2021-2022 117th Congress; namely S. 312 and H.R. 3669 (COVID-19 Safer Detention Act), and S. 1014 First Step Implementation Act of 2021. The 2021 Legislation proposed to date, does not fix inequalities present with either (the amount of) earned early release time credits or the timely application of those credits.

In January, 2020 Federal Sentencing Alliance authored the book titled: "FIRST STEP ACT OF 2018 & EARLY RELEASE EARNED TIME CREDIT DISPARITIES: Identification of Implementation Delays And Earned Time Credit Application Disparities for Recidivism Reduction Programs and Productive Activities in 2020", identifying (initial) discrepancies between days of program participation to be awarded pursuant to the First Step Act of 2018, verses hours that are planned to be awarded for successful completion of approved programs and activities. Even

two and a half years ago, we saw these problems coming in a methodical fashion. The January, 2020 first edition of this book was recently revised, made current, and republished on August 27, 2021. The August 27, 2021 book is the most complete book of its kind on this topic available anywhere today.

Now the second shoe is hitting the floor. The Bureau of Prisons now has license from the majority opinions nationwide on this subject, that the District Courts cannot force the Bureau of Prisons to apply earned time credits toward an inmate's early release, at least until on or after, January 22, 2022. Thousands of inmates nationally will be prison time-served, without enjoying any benefit from time credits earned, using that majority hands-off methodology.


Federal Sentencing Alliance presents conflict of law issues in Articles, Blogs and Publications, to foster critical thinking related to the issues presented. The information presented is for educational purposes only. Federal Sentencing Alliance is not a law firm, does not give legal advice, and cannot give legal advice by law. Any such interpretation is completely unintended.

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