Peter Tomasek, Esq.: First Step Act Earned Time Credits and Early Release

We were honored to host Peter Tomasek, Esq., an attorney and the editor in chief of Interrogating Justice, as our October 2022 White Collar Support Group Tuesday Night Speaker Series presenter. Peter spoke about early release, First Step Act earned time credits, and what was actually happening inside the Bureau of Prisons while families waited. You can watch the full recording above.

If you have credits on paper and a release date that will not move, or you are the one at home refreshing the inmate locator every morning, this is the hour. Peter came to us nine months into the messiest stretch of the rollout, and he spends most of his professional life on this one program. The question our White Collar Support Group members kept bringing to Monday nights was simple, and nobody could answer it. Who is supposed to move that date, and what do you do when the person you ask has no idea?

How First Step Act credits are earned, and what programming counts

The arithmetic is not the hard part. Every 30 days of participation in evidence based recidivism reduction programming or productive activities earns 10 days off a sentence, and usually 15. What surprises people is how broadly Congress defined what counts, and Peter’s read is that the Justice Department has mostly honored that breadth. Prison jobs count. UNICOR counts. Most of what people are already doing inside probably counts. Our explainer on how First Step Act earned time credits work is a place to start, then let Peter tell you why the definitions matter more than any list.

He also puts a price on the other side. A day in federal custody ran roughly $150 in 2022, and he sets the states with the highest incarceration rates against the states with the highest crime rates to ask whether any of us are getting our money’s worth. It is cheaper to let people go home on time, and the programming is supposed to make them less likely to come back.

But then you get to the BOP taking something that was a pretty good deal and making it way more complicated than it needed to be.

What to do when your credits do not move your release date

The statute used the phrase phasing period. The program was supposed to come online in stages from the day the First Step Act was signed in December 2018. The BOP took the last day available to it at every stage, three or four times running, which is how January 15, 2022 became the magic date every family email thread was counting toward. Two days early, Merrick Garland announced that transfers into supervised release, residential reentry and home confinement had begun, with credits counted on a rolling basis starting with the people due out soonest.

For plenty of people it then worked as described. For plenty of others the locator showed the same release date it always had, or it moved a fraction of what the arithmetic said it should.

And so then they went to their case manager and they said, hey, you know, like I’ve earned this many credits, can you explain this to me? And the BOP staff they talked to had no idea.

That is the moment this talk is really about, and it is where the options narrow fast. You can wait. You can work the BOP administrative remedy process, which you have to exhaust anyway. You can pay someone, and Sam Mangel and Craig Rothfeld have since told our group what a prison consultant can actually get changed inside a facility. Or you end up in federal court, and Peter is straight with us about what that costs.

Can unused First Step Act credits shorten supervised release?

Peter warns us he is about to nerd out on case law, which is the most useful stretch of the night for anyone sitting on credits that were earned and never applied. Before January 15, 2022, all but two federal courts told petitioners to come back after that date, because it was the last day the BOP had to implement the system. Then it passed, and some courts kept saying it anyway, issuing decisions in February, March and April telling people to wait until January.

Three cases broke the pattern. In Dyer, a judge applied 489 unused days against a three year term of supervised release, after the BOP argued the case was moot because the man was already home. In Stewart, another judge ordered the credits applied and put the agency on a 60 day recalculation clock. The third is Peter’s favorite and never made the slides. A judge denied Ms. Lallave’s petition and ran the math from the wrong start date. Peter wrote an article about it that he calls pretty whiny, and three and a half months later that same judge issued a new decision. What it conceded, and what it then ordered the BOP to do, is worth hearing Peter tell.

The three together start to build a case for one idea, that unused credits can shorten a term of supervised release instead of evaporating because the agency was slow. It is the same move the statute already made for compassionate release, where it took the warden out of the middle and put the decision in front of a judge. Louis L. Reed, who helped get the First Step Act passed, has spoken to our group about how long that kind of ground takes to win.

About Peter Tomasek

Peter J. Tomasek is an attorney and a writer from Durham, North Carolina. As editor in chief of Interrogating Justice and How to Justice, he focuses on the BOP’s implementation of the First Step Act time credits program, ban the box laws and second chance hiring, and other issues across the criminal justice system. He practiced law in Michigan and North Carolina first, including years spent representing attorneys and judges in legal malpractice and professional liability suits. Watching how lawyers, judges and government officials actually behave is what makes this mess personal for him.