Pelullo and Sharma: Time Credits, Admission Status, Program Participation, and the Quandary of a "Fully Automated Time Credit Calculator"

by

Susan M. Giddings, PhD, Unit Management Section Chief, Federal Bureau of Prisons, Ret.

Bruce Cameron MS LPC-S LSOTP-S Federal Bureau of Prisons Ret. South Central Regional Office

      Since the enactment of the First Step Act (FSA), there have been repeated calls for the Bureau to do better with calculating and posting Federal Time Credits. The Bureau recognized early on that the complexity of the FSA with its various requirements and limitations necessitated the creation of an automated system. For each person, the system needed to identify statutory eligibility, recidivism risk level, need areas, program participation/non-participation, number of programming days, credit earning rate, number of time credits earned, and, if applicable, where to apply earned credit as well as capture any changes in any of the individual status items between monthly calculations. For such a task, the answer was to leverage technology by integrating the Bureau's existing database with a new earned credit calculator tool.

      While leveraging technology was the obvious answer for a task of this magnitude, the method the Bureau chose to capture needed information has now been called into question with two recent court cases. The most recent case, out of the Middle District of Alabama, was highlighted in a November 12, 2024, Forbes.com column, and while heavy on opinion, it did not appear to grasp the complexity of the issue. In both cases, the individuals argued the Bureau was incorrectly disallowing specific time periods— while their circumstances differed, in both cases, the individuals were not granted programming days due to one or more non-qualifying admission status periods. Non-qualifying admission status was defined in the published rules language and is an indicator the individual is unable to participate in the specifically approved Evidenced-Based Recidivism Reducing (EBRR) programs and/or Productive Activities (PA) recommended by Bureau employees based on their individual needs assessment because they are out of their designated facility, and therefore, cannot accrue programming days.

      In Pelullo v. Warden, FCC Coleman Low, decided in August, the court took issue with the generalized use of admission status assignments as a condition in defining successful participation. 

The court said, 

A blanket, automatic prohibition […] appears contrary to the FSA […].  An ineligibility to "successfully participate" under a section 523.41(c)(4)(iii) designation status […] resulted in the automatic denial of time credits […]. The Court is not persuaded that Petitioner could not successfully participate in programming merely because he was outside of his designated facility and, therefore, outside of that facility's purview. The FSA does not lay this limit on a prisoner's eligibility to earn time credits or constrain BOP's ability to review a prisoner's programming across separate BOP facilities. 1 

The court determined the Bureau must make "individualized determinations" 1 when deciding whether an individual is or is not successfully participating in FSA-approved programming. Further, the court ordered the Bureau to review the specific time periods in question, determine if he was program compliant, and then recalculate the time credits "if appropriate." 1 In simplest terms, the court ordered the Bureau to show their work, meaning they should not rely on the automated system but review each challenged time period individually.

      In the second case, Sharma v. Peters, which was decided early this month and referenced in the Forbes.com column, the court similarly took issue with the use of qualifying admission status.  Again, the court did not necessarily believe an individual could not participate in programming merely because they were at a location other than their designated facility. 

The court wrote, 

The language of 18 U.S.C. § 3632(d)(4)(B) itself imposes no such limitation or exclusions on an inmate's eligibility to earn FTCs, nor does it impose any restrictions on the BOP from evaluating or determining an inmate's participation in various programming across different BOP facilities […]. Instead, the statute only requires the BOP to determine that an eligible inmate has successfully participated in and completed programming based on their PATTERN risk assessment score and complied with the program's requirements.2

Like the Pelullo decision and contrary to what was reported in the Forbes.com column, the court did not order Sharma to be granted the time credits; the court instead ordered the Bureau to review the time periods in question, determine if programming requirements were met, and then recalculate time credits "if appropriate."2

      These cases highlight some very real issues in terms of statutory text, Congressional intent, and agency implementation. In a post-Chevron world, the Supreme Court determined the courts must first determine if Congress delegated the authority to define and interpret ambiguous statutory language to an agency, and if so, was the agency's interpretation and implementation consistent with the intent of Congress. In the Pelullo and Sharma cases, the courts were not wrong in saying that the use of admission status is not expressively identified in the FSA language.  However, the court did not seem to consider the FSA did permit the Bureau to use "existing risk and needs assessment tools, as appropriate," nor did they consider the FSA language within the context of 18 U.S.C. § 4042, which states the Bureau "shall have charge of the management and regulation of all Federal penal and correctional institutions." 

      With the charge to manage federal prisons, the Bureau has utilized the Unit Management Model for 40 plus years to provide effective management of incarcerated individuals through the use of individualized assessments, regular team meetings, and program plans. As these courts focused on the FSA language in isolation, it is not surprising they would narrowly focus on the individual's physical location and whether they could participate in programming. However, within the context of all the relevant management and programming statutes, it is arguable the Bureau operated fully with its Congressional authority when it incorporated the FSA Risk and Needs Assessment as well as the task of assigning and monitoring FSA programming into its existing Initial Classification and Program Review process. Given the Initial Classification and Program Review process is linked directly to admission status, the linkage of program participation becomes both reasonable and obvious. 

      This reasonable and obvious link between admission status and FSA program participation allowed the Bureau to leverage technology and create a fully automated earned credit calculator, but this decision has now created a quandary. The courts, in both Pelullo and Sharma, ordered the Bureau to make individualized determinations about contested time periods and correct, if appropriate. While this is not an issue for these individual cases, it is utterly infeasible to accomplish such a task on a wide-scale, monthly basis for the entire incarcerated population. Without the ability to leverage technology to its fullest, the ongoing monthly process of calculating and posting time credits will collapse.

      The solution is for Congress to fix the statutory language and make clear their intention for incarcerated individuals to earn credit and not merely get credit, as well as better articulate the authority and extent to which the Bureau is authorized to manage the program. Those who falsely suggest that earned time credits were meant to reduce the prison population and save money are wrong— they were not listening to President Trump when he announced this bipartisan prison reform legislation. The creation of earned time credits was to incentivize participation in specific, evidenced-based programming designed to reduce recidivism and help individuals successfully transition from prison to home and community. A reduction in prison population and/or any savings is merely a byproduct of the intended purpose. Despite the naysayers, the Bureau created a fully automated system for calculating and applying earned time credits, which accurately and consistently awards credits to eligible individuals while simultaneously being responsive to taxpayers by efficiently leveraging technology to its fullest extent. 

      

1. Pelullo v. Warden, FCC Coleman - Low, 5:23-cv-189-WFJ-PRL (M.D. Fla. Aug. 13, 2024). Available at https://casetext.com/case/pelullo-v-warden-fcc-coleman-low

2. Sharma v. Peters, 2:24-CV-158-RAH-KFP [WO] (M.D. Ala. Nov. 4, 2024). Available at 

https://casetext.com/case/sharma-v-peters