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Fast Facts (Full BOP stats can be found here)

Confirmed active cases at 76 BOP facilities and 8 RRCs

Currently positive-testing inmates: 301 (up from 296) Currently positive-testing staff: 46 (unchanged) Recovered inmates currently in BOP: 45,054 (down from 45,074) Recovered staff: 15,214 (unchanged)

Institutions with the largest number of currently positive-testing inmates:

Leavenworth USP: 58 (down from 60)

Allenwood FCI: 24 (unchanged)

Carswell FMC: 24 (unchanged)

Institutions with the largest number of currently positive-testing staff:

Terminal Island FCI: 6 (unchanged)

Devens FMC: 4 (unchanged)

Grand Prairie: 3 (unchanged)

System-wide testing results: Presently, BOP has 145,065 federal inmates in BOP-managed institutions and 13,048 in community-based facilities. Today's stats: Completed tests: 128,654 (down from 128,658) Positive tests: 55,302 (down from 55,306)

Total vaccine doses administered: 349,049 (up from 349,007)

Case Note: "BOP Application of FSA Credits Gets Curiouser..."

A new posting on discusses a curious "refinement" by BOP of its application of earned-time credits (FSA credits) under the First Step Act as it relates to inmates with detainers. Although one would think that inmates with detainers who have earned time credits exceeding 365 days (the mac that can be applied to reduce an inmate's sentence) would not be permitted to apply them to halfway house or home confinement (since they shouldn't e in a halfway house or home confinement with a detainer) the article relates that the opposite now seems to be the case, and asks whether this could lead to widespread runaways. The article continues:

The Death of Detainers: It has always been an article of pre-release faith at the Federal Bureau of Prisons that halfway house and home confinement – known generally as “pre-release custody” – is denied to prisoners who are subject to detainers.

A detainer is a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency or to notify the agency when release of the prisoner is imminent. If you’re serving a federal sentence and have a state sentence to serve after release, the detainer is filed by the state asking that on the day you’re released, you be held until state law enforcement shows up at the prison door to take you into custody for the state sentence.

A detainer may be lodged against you because you have a pending warrant because of an indictment or because you violated state parole or probation. Very common in the federal system, you may have a detainer lodged by Immigration and Customs Enforcement because you are subject to deportation after finishing your federal sentence.

Actually, it makes a lot of sense that a prisoner against whom a detainer has been lodged would not be placed in a pre-release custody situation where he or she could do a runner. That’s why I was a little baffled that the First Step Act said nothing about denying pre-release custody to people with detainers. In fact, denial of pre-release custody to people with detainers has always seemed like a given, with the issue being whether they could benefit from applying FSA credits to shorten their sentences.

As you may recall, the BOP relented in early February, granting people with detainees the right to apply up to 365 FSA credits to reduce their sentencing length by up to a year. This made sense, because shortening a sentence did not set someone with a detainer free to dodge future imprisonment or deportation: it just advanced the day of reckoning for them.

But there remained the 900-lb elephant no one was talking about: a literal reading of the First Step Act permitted people with detainers to earn FSA credits and required the BOP to apply all of those credits. So what was the BOP to do with a prisoner subject to a detainer who has, say, 730 FSA credits? After applying 365 of them to reduce sentence length by a year, the prisoner still has a year’s worth of credits to apply. If not pre-release custody, where should they be used?

Last week, the BOP quietly issued a change notice to its Program Statement on how FSA credits are to be applied. The change notice alters the Program Statement’s language that “[t]o apply FTCs to prerelease placement, an inmate ordinarily must otherwise be eligible to participate in prerelease custody consistent with limitations as outlined in the Program Statement Community Corrections Center (CCC) Utilization and Transfer Procedure to delete the phrase

“separate from any FSA eligibility criteria”

The Program Statement, Community Corrections Center (CCC) Utilization and Transfer Procedure, excludes “[i]nmates with unresolved pending charges, or detainers, which will likely lead to arrest, conviction, or confinement” from halfway house or home confinement placement.

Now, according to the Change Notice, “in all cases, earned time credits will be applied to prerelease custody (RRC and/or HC) as required by the First Step Act. The First Step Act requires that, if an individual meets the criteria outlined in (c)(1), the credits must be applied when the amount of time credits earned is equivalent to remainder of the prisoner’s imposed term of imprisonment, consistent with the method for calculation described below. Pre-release placement in a Residential Reentry Center (RRC) or Home Confinement (HC) will be based on FTCs other than those credits already applied to early transfer for supervised release.”

[Note: The reference to “(c)(1)” is to 28 CFR § 523.44(c)(1), which provides that

The Bureau may apply earned FSA Time Credits toward prerelease custody only when an eligible inmate has, in addition to satisfying the criteria in paragraph (b) of this section:

(1) Maintained a minimum or low recidivism risk through his or her last two risk and needs assessments…]

So what this means is that the BOP will be sending people with detainers who otherwise qualify to spend FSA credits to halfway houses or home confinement when their credits exceed what can be applied to shortening sentences. It is hard to believe that large numbers of people facing substantial criminal liability exposure in state cases or who will be deported upon release from BOP custody won’t be in the wind shortly after being put in insecure halfway houses or, even worse, at home.

One retired BOP official told me that he sees the change quickly soaking up halfway house resources and dramatically slowing inmate placement. What’s worse, he said, especially where the inmates being placed in pre-release custody face deportation, the whole thing is a “Willie Horton” waiting to happen. While he may be a little too pessimistic, it’s hard to imagine that the BOP is happy about this (given that inmates in those facilities are still in BOP custody), just as it’s hard to believe that a Congress that excluded so many from FSA credit participation – for example, people convicted of moving fireworks into states where their use is prohibited – intended to undercut the BOP’s traditional and noncontroversial policy against pre-release custody placement for people with detainers.

Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) Today, the BOP announced no new COVID-related deaths, leaving the total number of inmate COVID-related deaths at 314. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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