FSA Break Down

  BREAKDOWN OF FIRST STEP ACT (FSA) AND SECOND CHANCE ACT (SCA) CALCULATIONS

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I. Introduction

This document provides a comprehensive analysis of the proper calculation and application of Earned Time Credits (ETCs) under the First Step Act (FSA) and pre-release placement under the Second Chance Act (SCA). The calculations herein adhere strictly to the statutory language of 18 U.S.C. § 3632(d)(4) (FSA) and 18 U.S.C. § 3624(c) (SCA), ensuring full compliance with federal law. This guide also addresses considerations for sentences that span the enactment of the FSA and the exclusion of pre-sentencing detention periods from ETC calculations.

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II. Legal Challenges to BOP's Misinterpretation

1. BOP Cannot Discretionarily Delay Pre-Release Custody

Woodley v. Warden, USP Leavenworth explicitly states that "the BOP has no discretion to refuse or delay the transfer of a petitioner to pre-release custody once eligibility requirements are met."

The statutory language in 18 U.S.C. § 3624(g) uses "shall," meaning the transfer is mandatory, not discretionary.

2. BOP's Pattern of Unlawful FTC Delays

Sharma v. Peters ruled that FTC credits must be applied when earned, not at the BOP's convenience.

The court in Sharma v. Peters invalidated the BOP's requirement of a 180-day interval between risk assessments, finding that:

"The BOP’s policy requiring a 180-day interval before an inmate could earn an additional 5 days of FSA time credits lacks any basis in the Code of Federal Regulations or statutory law."

The court also invalidated 28 C.F.R. § 523.41(c)(4)(ii-iii), confirming that FTC accrual must begin from sentence commencement, not after arrival at a BOP-designated facility.

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III. Rolling System of Accountability & Preventing Unlawful Shortening of FTCs

The FSA operates on a rolling basis, meaning credits accumulate over time.

If the BOP subtracts the early release period before calculating total FSA, it unlawfully shortens earned time by approximately 180 days.

Supporting Case Law for Rolling System

Yufenyuy v. Warden confirmed that the BOP’s attempt to delay FTC accrual until arrival at a designated facility contradicts the plain text of 18 U.S.C. § 3585(a). The court ruled that FTC eligibility starts at the date of sentencing, not upon arrival at a BOP facility.

Patel v. Barron held that BOP’s internal guidance cannot override federal law when calculating FTC eligibility, confirming that federal courts must ensure compliance with 18 U.S.C. § 3632(d)(4).

Broker v. Bowers established that the BOP has an ongoing pattern of unlawful FTC miscalculations that result in over-incarceration. The court confirmed that misapplied FTCs directly violate the statutory rights of inmates and must be corrected by judicial oversight.

Pre-FSA & Pre-Sentencing Time Must Be Excluded from FTC Calculations

FTC calculations must only consider time served after the enactment of the FSA (December 21, 2018).

Pre-sentence detention time is also excluded under 18 U.S.C. § 3632(d)(4)(B).

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IV. Harm Caused by BOP’s FTC Misapplications

Unlawful over-incarceration leads to:

Denial of Early Reentry Opportunities

Loss of Family & Community Reintegration Benefits

Missed Employment Opportunities

Increased Risk of Recidivism Due to Delayed Supervised Release

Based on Sharma v. Peters (2024), Woodley v. BOP, Loper v. Warden, and 18 U.S.C. §§ 3585(a), 3632(d)(4)

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Step 1: Start Date of Earning FSA Credits

Rule: An eligible inmate begins earning FSA Time Credits on the date of sentencing, per 18 U.S.C. § 3585(a), not upon designation to a BOP facility.

Clarified in: Sharma v. Peters (2024)

Invalidated: 28 C.F.R. § 523.41 and any BOP internal policies that required “designation” before credits started.

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Step 2: Determine FSA Eligibility

Check for disqualifying offenses listed in 18 U.S.C. § 3632(d)(4)(D).

If eligible:

Inmate must participate in EBRR Programs or Productive Activities (PAs).

No disqualifying infractions during credit-earning periods.

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Step 3: Retroactive Application of Credits

Proper rule (per Woodley and Sharma): Credits are retroactive to December 21, 2018, the date of the First Step Act’s enactment.

Credits must be applied from that date through the end of sentence minus:

Prior jail credit under § 3585(b)

Good Conduct Time (GCT) already applied

Clarified in: DOJ guidance, Woodley, and consistent interpretations from multiple district courts.

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Step 4: Accrual Rate

10 Days per 30 Days of qualifying participation.

15 Days per 30 Days if the inmate has two risk assessments showing minimum or low recidivism risk.

This is not limited to future programming—BOP must retroactively apply 15-day accruals to every 30-day period after the 2nd low/min rating.

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Step 5: Monthly Calculations

For every full 30-day period in qualifying programming:

Apply either 10 or 15 days depending on risk profile.

Include RDAP, education, work assignments, cognitive/faith-based classes, etc.

Do not exclude time spent in jails, transit, or awaiting designation if inmate is otherwise qualified and participating.

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Step 6: Use of FSA Credits

Up to 365 days can be used to move up Early Release Date.

All other days must be applied to Community Transition:

Residential Reentry Center (RRC)

Home Confinement under the Second Chance Act

Supervised Release adjustment

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Step 7: Include RDAP Sentence Reduction Separately

RDAP provides up to 12 months off sentence (if eligible).

FSA credits are still earned during RDAP.

You cannot double-count RDAP’s sentence reduction as FSA credits, but they do stack to enhance early release.

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Step 8: Correct the Conditional Placement Dates

Recalculate:

Projected Release Date (PRD)

FSA Conditional Placement Date (FSA CPD)

Second Chance Act CPD

If miscalculated, request corrections via BP-8 through BP-11 or 2241.

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Step 9: Ensure Retroactive Risk Assessment Application

Apply 15 days per month as far back as the second low/minimum PATTERN score, even if that occurred during pre-2022 participation.

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Step 10: Legal Remedies for Miscalculation

If denied or delayed:

File Administrative Remedies (BP-8 to BP-11)

Then proceed with 28 U.S.C. § 2241 Petition in district of confinement