The BOP recently published a proposed new rule in the Federal Register in response to the myriad cases filed against the agency’s restrictions on applying First Step Act time credits. It addresses the practice of awarding credits only after a person arrives at their designated facility – an interpretation of the law that is more restrictive than the actual intent. For example, the agency has determined it takes an average of 66 days after sentencing before a person arrives at the designated facility; that means they never receive any of the approximately 22 FSA credit days they could get for that time
Yes, this latest proposed rule change would fix an inequity, but let’s be clear that it did not result from a shift in agency culture. Rather, it was forced by costly litigation in multiple circuits that continues today. PERA has consistently maintained that significant BOP reform could be accomplished, without new legislation, within the current policy framework if the agency would broaden its use of discretion to facilitate freedom rather than to keep people inside.
Like compassionate release, furloughs and other such discretionary issues, internal culture continues to drive the bureau’s reputation as the “agency of no.” Another case in point: The U.S. Sentencing Commission just released its compassionate release data for the third quarter of 2026. Incarcerated people must first seek compassionate release by applying to the Bureau of Prisons via their wardens, and the numbers show that of the applications ultimately approved by the court, only 1.5% were given the go-ahead by the BOP.
State concurrency neglected
Meanwhile, the agency is missing the mark on a larger issue related to FSA credits: how state concurrency is handled. Inmates often are moved to federal facilities to be prosecuted for federal crimes while they are still in primary state or local custody. They are returned to their local facility after sentencing, often to serve their time concurrently with their federal sentence. This overlap can last for years, yet they are unable to earn FSA credit. As I said in a published comment in the Federal Register, that needs to be fixed. Consider that the BOP has been awarding people in its prisons full credit who have not completed any programs, just because they are on a waiting list. Why shouldn’t state rehabilitation programs count?
The BOP administration should have considered its own policy, titled the Designation of State Institution for Service of Federal Sentence (PS-5160.06), and made the necessary adjustments to the proposed rule regarding state concurrency.
What about pre-trial detention?
Another inequity the BOP should address is the practice of automatically halting credit accrual when people are sent to a local hospital for treatment, the SHU for non-disciplinary reasons, or state or local facilities for testimony and/or prosecution. There should be no penalty in these situations.
And it would be remiss if I didn’t call on Congress to reconsider the First Step Act to correct some of its inherent injustices – like the exemption for people with a long list of “undesirable” charges referred to as “carve outs,” and not starting the clock while they are in pre-trial detention. Under previous law, the BOP could retroactively award lump sums of credit for pre-trial confinement, which can be lengthy and disproportionately impact marginalized populations.
So…yes, celebrate any needed improvement, but let’s not overstate it.
