October 25, 2023 - Kenneth M. Abell / Scott Glicksman and Jennie Yu
For federal white collar defendants facing the likelihood of a custodial sentence, attention is, for good reason, centered on the length of sentence to be imposed upon conviction — an outcome dictated by the charges at issue and applicable U.S. sentencing guidelines, and ultimately determined by the sentencing judge.
Though parole has long been abolished in the federal sentence, federal defendants generally do not serve the full sentence imposed by the sentencing judge. Indeed, the sentence the defendant will likely have to serve, and what amount may be served in alternative custodial settings outside of prison, are impacted by several long-standing and more recent legal developments, especially in the context of white collar offenses. The fraction of the sentence to be served by a defendant is, quite obviously, a no less relevant consideration for those contemplating or negotiating a federal plea involving exposure to a custodial jail term.
In this article, we provide a brief overview of some of the more well-established federal programs widely applicable to white collar defendants that can affect one’s release date from federal prison, including early release to a prerelease facility, home confinement or supervised release under the First Step Act, as well as reductions to one’s total time served through so-called good-time credits.
While programs like good-time credits have been entrenched in statute and Federal Bureau of Prisons policy for years, the implementation of many aspects of 2018’s First Step Act is still evolving. Taken together or apart, the significant impact these programs can have on a white collar defendant’s time served makes plain the need to keep them in mind early in the life cycle of a client’s case than one might think.
Finally, we address two recent updates to this landscape: first, the September 30, 2023 expiration of the First Step Act’s Elderly Offender Home Detention Program, and second, a recent announcement by the U.S. Sentencing Commission to apply the so-called zero-point offender adjustment retroactively, allowing thousands of defendants who were sentenced as first-time offenders to petition courts for a reduction in their prison terms.
Good-time credit is earned for satisfactory behavior, including “exemplary compliance with institutional disciplinary regulations,” according to Title 18 of the U.S. Code, Section 3624(b).
Good-time credit reduces an incarcerated person’s actual time in BOP custody. For each year of an incarcerated person’s imposed sentence, they can earn up to 54 days of good time. All federal prisoners serving a sentence of more than one year are eligible.
When awarded, good-time credit effects a material reduction in someone’s time served in prison, one that is calculated predictably and on an annual basis. The BOP calculates good-time credits 15 days from the last day of each year of the incarcerated person’s sentence.
For example, someone whose sentence began on April 5 should be awarded their good-time credit by April 20 every year after their first year in prison. And although good-time credits are not new, the First Step Act of 2018 amended Section 3624(b) to make clear that people in prison are eligible for a full 54 days of good-time credit for every year of their imposed sentence, rather than every year of their sentence served. Prior to the amendment, the BOP’s interpretation of the provision meant one would in effect only receive at most 47 days of good-time credit per year. See The First Step Act of 2018: An Overview, Congressional Research Service (Mar. 4, 2019), available here (discussing the modification of good time credits under the First Step Act).
That one’s time served could be reduced by roughly 15% is not insignificant information, particularly for those with high guidelines ranges driven by inflated loss amounts, as is commonly the case for federal white collar defendants. For example, consider a defendant with an offense level of 33 who receives a within-guidelines sentence of 135 months. With full good-time credit, the defendant’s resulting time served would be no more than roughly 115 months — the equivalent of a two-level reduction in their offense level under the sentencing guidelines.
Time Credit Under the First Step Act
On Jan. 13, 2022, the BOP published a rule implementing the time credits program that was included in the First Step Act. Under this rule, eligible people in prison can earn 10 to 15 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programs and productive activities. To qualify for earned time credits, inmates must 1) be convicted under the U.S. Code (i.e., a federal offense); 2) not be convicted of a disqualifying offense, as defined under 18 U.S.C. § 3632(d)(4)(D); and 3) be deemed minimum- or low-risk per the BOP’s risk assessment system. Offenses that make inmates ineligible to earn time credits are generally categorized as violent, or involve terrorism, espionage, human trafficking, sex and sexual exploitation; additionally excluded offenses include a repeat felon in possession of a firearm, or high-level drug offenses, that is, generally not white collar defendnats.
The FSA provides that “[a] prisoner shall earn 10 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.” 18 U.S.C. § 3632(d)(4)(A)(i). An inmate determined to be at a “minimum or low risk for recidivating” who, “over 2 consecutive assessments, has not increased their risk of recidivism, shall earn an additional 5 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.” 18 U.S.C. § 3632(d)(4)(A)(ii). “Productive activities” within the meaning of the rule includes a wide variety of programs and activities, such as anger management, cognitive behavioral therapy, post-secondary education and vocational training. For a list of all approved EBRR Programs and Productive Activities, please refer to the FSA Approved Programs Guide, available here.
Using earned-time credits under the First Step Act can amount to a meaningful reduction in the time someone spends in prison while under BOP custody. For every 30-day period that an incarcerated person successfully participates in the evidence-based recidivism reduction programs or productive activities recommended by the BOP based on their risk and needs assessment, they will earn at least 10 days of time credits. Once they have earned-time credits equal to the time left in their sentence — and met certain recidivism-risk requirements under Title 18 of the U.S. Code, Section 3632(d)(4)(A)(ii) — they can then apply those credits to earlier placement in prerelease custody, such as residential reentry centers and home confinement, and apply up to 12 months of credit toward supervised release.
Note that while application to supervised release is limited to the final year of someone’s sentence, they can still use their credits to transfer to prerelease custody earlier. Although earned-time credits under the First Step Act do not reduce one’s imposed sentence, they can have an enormous impact on time spent under BOP custody. Because most white collar defendants are first-time offenders convicted of nonviolent crimes, they are well suited to qualify under the eligibility criteria, which is focused on individuals with a low recidivism risk and excludes many sex-related, drug-related and violent crimes.
Given the program’s criteria and its potential to implicate roughly 30%-50% of a defendant’s sentence, practitioners should advise clients on earned-time credits and evidence-based recidivism reduction programs when considering what a custodial sentence might look like.
Elderly Offender Home Detention Pilot Program Under the First Step Act Expires
The Elderly Offender Home Detention Program was a pilot program introduced as part of the First Step Act in 2018. It permitted eligible people in prison who were at least 60 years old and served at least two-thirds of their total sentence to serve the remainder of their sentence in home confinement.
The pilot, which expired on September 30, 2023, was widely used during its implementation. See 34 U.S.C. § 60541(g)(3). Over 1,219 inmates participated in the program since 2018, see BOP data at p. 32 here. This program had a major impact on the time those thousands of inmates spent incarcerated. For example, even before accounting for good-time credit, earned-time credit and other programs, a 52-year-old sentenced to 135 months could, at age 60, become eligible for the program, and — having served two-thirds of their total sentence — be released to home confinement thereafter.
While the program’s expiration is an unwelcome development in general, it is particularly so for white collar practitioners, whose clients tend to be older than the average federal defendant. Indeed, roughly a quarter of the minimum- and low-security federal prison population, which includes virtually all incarcerated people sentenced for white collar crimes, are age 50 and older, which means that many of them will cross the 60-year-old threshold while in custody and would have qualified for early release to home confinement under this program. See Department of Justice data at p. 48 here (providing data as of 2016 on older offenders in the federal system). Although there have been calls for the program’s reimplementation, as well as a bipartisan proposal under the Safer Detention Act of 2023 that would further expand elderly offenders’ opportunities for home confinement, no actions have been taken since the program’s expiration.
Sentencing Guidelines Reduction for First-Time Offenders Applies Retroactively
The U.S. Sentencing Commission adopted several amendments to its sentencing guidelines in April. One such amendment was Amendment 821, Part B of which created a new Section 4C1.1 that allows for a two-level reduction in the offense level for certain first-time offenders. Part A of Amendment 821 limits the overall criminal history impact of “status points”—i.e., the additional criminal history points given to defendants for the fact of having committed the instant offense while under a criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status—under § 4A1.1. See USSS here.
In addition to providing certain defendants with no prior criminal history an opportunity to receive a material reduction in their offense level, the amendment also provided others an avenue to argue for a sentence that does not include imprisonment.
This includes revisions to the Section 5C1.1 commentary advising that a sentence other than imprisonment is generally appropriate if a person qualifies for a Section 4C1.1 adjustment and is in Zone A or B of the sentencing table, and that a guidelines departure “may be appropriate if the offender received an adjustment under new § 4C1.1 and the applicable guideline range overstates the gravity of the offense because the offense of conviction is not a crime of violence or an otherwise serious offense.”
On Aug. 24, the U.S. Sentencing Commission voted that Parts A and B of Amendment 821 should be applied retroactively. Although Amendment 821 already promised to significantly reduce the sentencing ranges of future defendants, the commission’s recent announcement on its retroactivity will affect thousands more people who are incarcerated in federal prison.
Although the amendment does not go into effect until Nov. 1 — and court orders reducing terms of imprisonment are not to go into effect until Feb. 1, 2024 — practitioners should be prepared to assess each client’s eligibility for a sentence reduction under the new Section 4C1.1 and closely monitor federal courts’ handling of such motions. Moreover, many federal prosecutors’ offices have begun offering the two-point reduction as part of ongoing plea negotiations, anticipating the implementation and effect of the new rule.
Good-time credit as well as earned-time credit under the First Step Act are central considerations for many federal defendants serving a period of incarceration. But given their potential to materially and somewhat predictably affect the term of incarceration someone ultimately serves, they should be taken into account not only after sentencing, but also during plea negotiations alongside more common considerations, like the statutory maximums and the sentencing guidelines ranges dictated by the defendant’s offense level.
And for those currently incarcerated, the recently announced retroactivity of Amendment 821 can have an additional and meaningful impact on their sentence by effecting a reduction in offense level under those guidelines. The expiration of the Elderly Offender Home Detention Program is no less relevant, and until it or similar reform is reimplemented, its absence can have an equally meaningful impact on a sentence, albeit in the other direction.
Taken together, these programs and developments reveal the broad and dynamic universe of mechanisms at a federal defendant’s disposal when an custodial term is being contemplated. For practitioners, it underscores the need to monitor BOP policy and announcements by the U.S. Sentencing Commission as closely as one monitors case law.
Ken Abell is a partner of Abell Eskew Landau LLP and routinely handles white collar criminal and civil enforcement cases, including healthcare fraud cases arising under Title 18, the False Claims Act, and the Antikickback Statute. Scott Glicksman is an associate of Abell Eskew Landau LLP with a practice focused on parallel criminal and civil investigations and cases. Jennie Yu is a paralegal of the Firm.