Bureau Of Prisons Makes Progress On First Step Act; Challenges Remain

A Welcome Change That Does Not Go Far Enough

The Federal Bureau of Prisons (BOP) recently implemented an important change to the First Step Act that could allow thousands of eligible federal prisoners to begin earning time credits earlier in their sentences. The change, which took effect September 30, 2026, addresses a longstanding problem involving prisoners who were remanded into custody at sentencing but had to wait weeks or months before arriving at their designated federal prison.

Previously, BOP regulations tied the beginning of First Step Act credit eligibility to arrival at a designated institution. Two people sentenced on the same day could therefore begin earning credits at very different times. One might voluntarily surrender directly to a federal prison while another, taken into custody at sentencing, could spend months in county jails and detention centers awaiting transportation.

The reason this difference matters is because eligible prisoners can earn 10 or 15 days of First Step Act credits for every 30 days of qualifying participation in approved programming and productive activities. Those credits can eventually be applied toward prerelease custody or subject to statutory limitations, an earlier transfer to supervised release, which essentially shortens the sentence by up to a year.

The new regulation recognizes that an eligible prisoner’s earning period can begin when the federal sentence commences rather than only upon arrival at a designated institution. However, two other issues remain unresolved: prisoners who temporarily leave their institutions for authorized reasons, including hospitalization or furlough, and how the BOP calculates the additional five days of credits available to prisoners who demonstrate a minimum or low risk of recidivism.

The First Step Act Has Been A Work In Progress

President Donald Trump signed the bipartisan First Step Act into law on December 21, 2018. The legislation created incentives for prisoners to participate in programs designed to reduce recidivism, allowing eligible individuals to earn credits that could lead to earlier placement in halfway houses, home confinement or supervised release.

Implementation proved complicated. The BOP had to develop the Prisoner Assessment Tool Targeting Estimated Risk and Needs, known as PATTERN, identify qualifying programs and create a system to calculate credits. In January 2022, the agency published its first comprehensive final rule governing earned time credits.

Since then, the BOP has repeatedly modified its calculation procedures, while prisoners and their families have struggled to understand why projected release dates change. The Department of Justice Office of Inspector General has also identified shortcomings in the BOP’s implementation of the law, including problems involving programming and time-credit calculations.

More recently, BOP Director William K. Marshall III has emphasized improving First Step Act implementation. In September 2026, the agency announced the creation of a dedicated First Step Act Office to oversee the program.

Nearly eight years after the law was signed, the BOP continues to refine how it delivers the benefits Congress authorized.

Significant Change For Prisoners Awaiting Designation

On August 31, 2026, the BOP published an interim final rule in the Federal Register, effective September 30, removing language from 28 C.F.R. § 523.42(a) that tied the beginning of credit earning to arrival at a designated BOP facility.

Consider a defendant sentenced to five years who is immediately remanded into custody. The U.S. Marshals Service may hold that person in a county jail while the BOP reviews the Presentence Investigation Report, determines security classification and medical needs, and selects a facility. Transportation can involve additional stops at detention centers and take months.

Under the previous regulation, the individual could be excluded from earning credits throughout that period. The revised regulation removes that categorical restriction. However, the change does not guarantee credits for every day following sentencing. The BOP still requires qualifying participation in approved programming or productive activities, which may be limited in county jails and detention centers. How the agency accounts for participation during these periods will be important.

Nevertheless, the change addresses a fundamental inequity. Prisoners should not lose opportunities to earn credits simply because the government takes months to transport them to a designated institution.

Prisoners Not At The Institution

Another unresolved issue involves prisoners who temporarily leave their designated institutions.

Under 28 C.F.R. § 523.41, certain designation statuses outside the institution can interrupt successful participation for purposes of earning First Step Act credits. These circumstances include extended hospital placements, escorted trips and furloughs.

In a situation when a prisoner develops a serious medical condition requiring hospitalization outside the prison, the BOP may transfer that person for surgery or specialized treatment to a hospital in the community. The prisoner has not refused programming or committed a disciplinary infraction, yet the time spent outside the institution can result in lost earning days.

Similar concerns arise when prisoners are transported under a writ to appear in court or receive approved furloughs to attend family emergencies. These absences are authorized, and their duration is beyond the prisoner’s control.

The regulations already recognize that certain temporary interruptions to programming authorized by the BOP do not necessarily interrupt successful participation. The question is why comparable protection should not extend to hospitalization, court appearances and other authorized absences.

The BOP has indicated that it may address this issue through additional regulatory changes. A reasonable approach would distinguish between prisoners who refuse to participate in programming and those who cannot participate because the government has temporarily removed them from the institution.

When Do The Additional Five Days Begin Under FSA

Perhaps the most consequential unresolved issue involves prisoners classified as minimum or low risk under the PATTERN assessment system.

Under the First Step Act, eligible prisoners generally earn 10 days of credits for every 30 days of successful participation. Certain prisoners assessed as minimum or low risk can earn an additional five days, bringing their total to 15 days for each qualifying 30-day period when they have their second consecutive assessment to determine dangerousness and recidivism risk. These assessments are usually 6 months apart.

The dispute centers on the requirement involving two consecutive risk assessments.

Under 18 U.S.C. § 3632(d)(4)(A)(ii), a prisoner determined to be at minimum or low risk who, over two consecutive assessments, “has not increased their risk of recidivism” qualifies for the additional five days.

The BOP’s implementing regulation requires that the prisoner maintain a minimum or low classification over the two most recent consecutive assessments. Under the agency’s current approach, the additional five-day rate generally begins after the second qualifying assessment.

Consider a prisoner who receives an initial PATTERN assessment indicating minimum risk, participates successfully in programming for six months, and receives a second assessment confirming that the risk remains minimum.

Under the BOP’s approach, the prisoner ordinarily earns 10 days for each qualifying 30-day period during those initial six months, or approximately 60 days. Only after the second assessment does the prisoner begin earning 15 days.

An alternative interpretation would treat the second assessment as confirmation that the prisoner maintained the required risk level throughout the preceding period. Once confirmed, the prisoner would receive the additional five days retroactively, generating approximately 90 days rather than 60.

That is a difference of 30 days, even though the prisoner’s behavior, risk classification and participation were identical.

Does The Law Require A Waiting Period?

Congress used the phrase “has not increased their risk of recidivism” when describing eligibility for the additional five days. That language can reasonably be read as requiring a subsequent assessment to confirm that a prisoner’s risk has not increased.

It does not expressly state that the higher rate applies only to participation occurring after the second assessment.

Under an alternative interpretation, the second assessment remains an essential statutory requirement, but it validates the preceding period rather than establishing the first day on which the higher rate can be earned.

The BOP can argue that the additional credits are not earned until the prisoner satisfies the two-assessment requirement. However, that interpretation effectively creates an initial waiting period during which the additional five days are permanently unavailable, even when the second assessment confirms that the prisoner maintained minimum or low risk.

The legal disagreement is not whether two assessments are required. Both interpretations recognize that requirement. The question is whether the additional credits should be awarded retroactively once the statutory condition is satisfied.

BOP Has Previously Applied The Higher Rate Differently

A 2022 federal court filing provides an interesting perspective on how the BOP previously calculated First Step Act credits. In Stewart v. Warden, FCI Talladega, Case No. 1:22-cv-00294-MHH-JHE, Susan Giddings, then Chief of the BOP’s Unit Management Section, submitted an April 29, 2022, declaration explaining the agency’s interim calculation procedures.

Robert S. Stewart Jr., sentenced to 21 months in prison, challenged his earned time-credit calculation. Giddings acknowledged that the BOP had initially awarded him 61 days incorrectly. Following a review by the agency’s Office of Research and Evaluation, his credits increased to 75 days.

Giddings explained that the BOP calculated credits by dividing the total number of eligible days by 30 and multiplying by 15 for prisoners classified as minimum or low risk.

For Stewart, the BOP identified 150 eligible days between July 28 and December 25, 2021. Applying the 15-day rate to that entire period resulted in 75 days of credits.

The declaration does not identify Stewart’s PATTERN assessment dates, so it does not establish whether the BOP awarded additional credits before his second assessment. Nevertheless, it documents that the agency previously applied the higher rate across an initial earning period under its interim procedures.

That history raises a legitimate question about whether the BOP should reconsider its current interpretation and determine whether the higher rate can apply retroactively once the second assessment confirms continued eligibility. After all, it has been done before.

Does 30 Days Matter Under First Step Act

For prisoners and their families, 30 additional days of credits can mean returning home a month earlier, beginning employment sooner or reconnecting with children. The same is true for prisoners who lose earning days because of hospitalization or authorized court appearances.

There is also a financial consideration, which was central to the First Step Act passing into law and something it has yet to achieve. Earlier transitions from institutional confinement to community custody or supervised release can reduce federal incarceration costs, although actual savings depend on placement and other factors.

The First Step Act was intended to reward rehabilitation and encourage successful reentry. Its effectiveness depends not only on programming but also on whether the BOP accurately administers the incentives Congress established.

The September 30 change demonstrates that the BOP can revisit longstanding interpretations. The next step should be reviewing the treatment of authorized absences and whether prisoners who maintain minimum or low recidivism risk should receive the additional five days for their initial qualifying months.

Nearly eight years after the First Step Act became law, progress continues. But for prisoners whose release dates depend on how credits are calculated, the remaining questions are just as important as the changes already made.