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Op-Ed: Fix the First Step Act and Let Reformed Prisoners Out From Behind Bars – Time Credits and the Irrebuttable Presumption Doctrine

by Christopher D. Cobb

I am a federal prisoner housed at theFederal Satellite Low located in Jesup (“Jesup”), Georgia, and a subscriber to both PLN and CLN. I obtained a Paralegal certificate from Blackstone Institute in January of 2020, with a corresponding Advanced Certificate in Criminal Law in July of 2020. Since then I have assisted the others incarcerated here at Jesup with filing for detainer removals, quashing pending warrants, dismissing various state charges, compassionate release motions, assisted both paid and appointed attorneys in legal research for multiple direct appeals for fellow prisoners, prepared nearly a dozen successful § 2255 petitions for fellows prisoners, and most recently, have devoted much effort towards the proper standards for both earning and having applied the First Step Act’s (“FSA”) Time Credits Program.

The many Latino prisoners housed here have recently credited me (undeservedly in my opinion) with getting the Bureau of Prisons (“BOP”) to recognize the mandatory nature of the Time Credits as expressed in the BOP’s Change Notice issued on March 10, 2023, in which the BOP acknowledged that those with both detainers and pending charges are now able to apply the Time Credits toward prerelease custody (Halfway House and Home Confinement). I believe that this Change Notice now cements the argument that I have prepared for those of us who are “ineligible” for earning the FSA’s Time Credits.

I have recently filed a habeas petition under 28 U.S.C. § 2241 with the U.S. District Court for the Southern District of Georgia – Christopher Cobb v. Warden Jeffry Fikes, Civil Action No. 2:23-cv-08. In this Petition, I argued that the FSA’s list of exclusions, codified at 18 U.S.C. § 3632(d)(4)(D), is unconstitutional on its face and as applied to me under my specific exclusion. I argued that my exclusion represents an “irrebuttable presumption” that “based upon a false premise” and that because “there is not reasonable opportunity to demonstrate that the premise is false as applied to any individual,” it therefore violates the Due Process and Equal Protection Clauses of the Fifth Amendment to the U.S. Constitution. 

I pointed out that the mandatory nature of the Time Credits earning and application (18 U.S.C. § 3632(d)(4)(A)(i), (ii) and § 3632(d)(4)(C), respectively) makes access to them a liberty interest issue. See Wolff v. McDonnell, 418 U.S. 539, 555-58 (1974) (concluding that prisoners have a liberty interest in good time credits earned); Sandin v Conner, 515 U.S. 472, 483-84 (1995) (determining that state and federal law may create liberty interests in time credits that are protected by the Due Process Clause of the Fifth Amendment); Board of Pardons v. Allen, 482 U.S. 369, 377 (1987); Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 463 (1989); Olim v. Wakinekona, 461 U.S. 238, 249 (1983). Together, these five cases establish that “substantive predicates” on an agency’s determinations create a liberty interest that cannot be denied based on categorical exclusions and that in order for a prisoner to be denied the benefits others receive, there must be an individual determination.

This is entirely in line with the Supreme Court’s line of cases concerning the “Irrebuttable Presumption” doctrine. See Turner v. Dep’t of Employment Security, 423 U.S. 44 (1975); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974); Vlandis v. Kline, 412 U.S. 441 (1973); Stanley v. Illinios, 405 U.S. 645 (1972); Bell v. Burson, 402 U.S. 535 (1971) (applying Irrebuttable Presumption doctrine when the private interests are important – such as not being in prison – and the governmental interests are based upon a false premise). “[C]onvenience alone is insufficient to make valid what otherwise is a violation of due process of law.” LaFleur, 414 U.S. at 647. [Editor’s note: The Irrebuttable Presumption doctrine holds that a statute cannot confer or deny a right on the basis of a presumption that is not universally accepted as true. It shifts the issue from whether a person is a member of the classification to whether the classification itself is properly drawn.]

The reason that this is an unconstitutional practice is that there is no opportunity to demonstrate that the premise is false as applied to any individual as opposed to the category that is denied the benefit in question (in this case, access to the Time Credits program), which requires the discussion of both an “individual determination” and the underlying premise that led to the exclusions in the first place.

First, the FSA ordered the DOJ and BOP to create a “system” to determine the likelihood of recidivism for each federal prisoner. See 18 U.S.C. § 3632(d). This “system” was enacted by the BOP as the “PATTERN Scoring System” – which rates each prisoner based on a number of metrics, some that do not change over time and some that do. This system is not perfect by any means, and previous incarnations have even been deemed racist, which resulted in a change for number of points required to be considered a “Low” verses a “Medium” risk under this system. The system is still undergoing evaluation and changes but has been determined to be “effective at distinguishing recidivists from non-recidivists.” DOJ’s April 2022 Report on the FSA, pages 8-18 (available online at: https://www.bop.gov/inmates/fsa/reports/jsp).

The earning and application of the Time Credits is specifically tied to the PATTERN Score’s individual determination. 18 U.S.C. § 3632(d)(4)(A), (C). This is the evidence that I presented to the District Court to show that if I had received an evaluation, I would have earned Time Credits for my “college correspondence” course where I earned my Paralegal Certificate as well as my UNICOR work assignment under Code of Federal Regulations (“CFR”) § 523.42(b)(2) (dubbed presumed participation). This portion of the CFR concerns those who were imprisoned at the time of passage of the FSA on December 21, 2018 until January 14, 2020.

For those who have come to federal prison after that date, the relevant Regulation is 28 CFR § 523.41(c). This distinction is important because § 523.42(b)(2) does not tie the taken programs with the BOP’s recommendation or its specific inclusion on the lists of EBRRs and PAs, but § 523.41(c) does. As such, a petitioner incarcerated after January 14, 2020, must show that he/she has participated in the programs specifically recommended by the BOP for that individual to take. At least, that is the rule as it currently stands. There may be future litigation that causes the need for the recommendation by the BOP to be divorced from the ability to earn Time Credits, as the FSA does not require the recommendation by the BOP to be tied to the earning and application of the Credits themselves (but because this is not the subject of the issue presented here, I will refrain from going into detail on that point).

This should be enough to establish that any excluded individual who has received a Low or Minimum Score would receive Time Credits under an individual determination if one were available as long as they have participated in appropriate programming.

So, the only thing left to establish is that the presumption that underlies the exclusions is “based on a false set of premises.” (At least for the Due Process Claim)

To this end, I presented to the District Court (and the Respondent has not addressed in the least on any of these petitions) that the legislative history of the First Step Act reveals conflicting purposes in relation to the Time Credits and the exclusion by category of the ability to earn said credits. First, Congress created in the FSA a system of  “Time Credits” to encourage prisoners to participate in the particular programming needed by them (individually) as indicated by their PATTERN Assessment. See 18 U.S.C. § 3632(d). Yet, second, the statute provides exclusion to earning said Time Credits based upon categorical exclusions that lack any sort of individual assessment, as those who are eligible to earn said credits are afforded as referenced previously. This categorical exclusion creates a “second class” of prisoner as ruled unconstitutional in LaFleur, which was the specific intent of Senator Tom Cotton in his demand for the exclusions. See Sen. T. Cotton (R-Ark.), National Review Op-Ed, “Fix The First Step Act And Keep Violent Criminals Behind Bars” (Dec. 17, 2018).

In this op-ed, Senator Cotton complains that only extremely long sentences can deter crime and states that: “One of the best predictors of having committed a crime in the future is having committed a crime in the past.” (However, that presumption is demonstrably false. See DOJ April 2022 Report, p 54, chart 2.)

This statement expresses a clear intent that those on the list of exclusions are not worthy of, and are not capable of, rehabilitation; therefore, they should not be allowed to earn the same incentives as those who are not on this list (and therefore deemed capable of rehabilitation). Further, the complaints of Senator Cotton were heard and adopted by both chambers of Congress, as can be seen in the Senate Judiciary Committee’s announcement that the amendments and specifically the exclusions were placed in the First Step Act “to address concerns by certain parties [like Senator Cotton], exclusions from Time Credits was placed in the FSA of 2018.” Announcement available at: https://www.judiciary.senate.gov/imo/media/doc/2018-11-15%20-%20Revised%20First%20Step%20Act%20-%20Summary.pdf.

The exclusions were placed as an appeasement to the assertions that those convicted of an offense listed should not be allowed to be incentivized in an equal manner as they are not redeemable as a category. A premise that is demonstrably false. In support of his argument, Senator Cotton presented the case of Richard Crawford, writing in his op-ed: “Crawford was sentenced to nearly 11 years in federal prison, but the statute he was convicted under does not appear in First Step’s ‘ineligible prisoners’ list.”

This use of categorical exclusions based upon only a single example is exactly what has been declared to be a violation of due process under the Irrebuttable Presumption doctrine. The false presumption here is that any and all persons convicted of a disqualifying offense will necessarily equate with Richard Crawford’s offense conduct, as well as the worst offenders also on said list. In other words, that the opposite finding for the reasons presented in section (d) should be applied categorically, not individually. In addition to this, many of the crimes excluded categorically from earning Time Credits have lower recidivism rates than those which are not excluded. Compare recidivism rates among various crime categories as listed in the Department of Justice’s “First Step Act Annual Report” from April 2022” (“Report”), available for download online at: https://www.bop.gov/inmates/fsa/reports.jsp.

On page 54 of the Report, there is a chart that lists recidivism rates by category. As can be seen, drug crimes (which make up the majority of eligible prisoners) have a rate of 15.4%, but fraud crimes have a recidivism rate of only 4.5% and are excluded by statute from earning the Time Credits. See §3632(d)(4)(D)(xxiii). In addition, the same page of the Report contains another chart showing conclusively that the longest sentences do not have a substantially different rate of recidivism (chart 2). Among various length of sentences, there is only a difference of 7.7%. Therefore, it is unreasonable to say that longer sentences deter future crimes because the data does not support that conclusion.

Readers should take note that in none of the Petitions that I have helped ineligible prisoners to file has the Respondent addressed this portion of the argument at all. Furthermore, there is the Equal Protection argument that can be made for most, if not all, of the excluded offenses. This is because most of the excluded offenses have analog statutes that are eligible such as 18 U.S.C. § 1589, having an analog in § 1594 (at least under Eleventh Circuit caselaw – as conspiracy crimes are treated the same as having completed the act in the Circuit. Other Circuits, such as the Fourth Circuit, however, have decided to treat them as separate offenses).

For those convicted of sex offenses, one could use the fact that historically all sex offenses have been grouped together into one expansive category (as demonstrated by the chart on page 54 of the Report, in which sex offenses are grouped together as one category), yet “clickers” (simple receipt and possession of child pornography) are excluded while a myriad of “hands on” offenses (such as Conspiracy to Commit Sex Trafficking, Unlawful Sexual Abuse of a Minor, and Transportation of Minors Across State Lines) are “eligible.”

For excluded drug offenders, one can use the argument that all drug weights are sentenced under the same portion of the Sentencing Guidelines to demonstrate that they are “similarly situated” to others who have received benefit of the Time Credits.

In conclusion, I have presented these arguments to the U.S. District Court for the Southern District of Georgia, a court that is historically anti-defendant. I believe that the more who present these arguments, the more likely they are to succeed. If presented in friendlier U.S. District Courts, this would have a better chance of success, and if presented by an attorney, this would have an even better chance of success. If you are on the list of exclusions, maybe you should be looking into these issues.

On a parting note, it is worth mentioning that administrative remedies are generally required before filing a § 2241, but this requirement is neither jurisdictional nor absolute. There are exceptions. One exception is when a petitioner is challenging the underlying statute as being unconstitutional, as the issue is beyond the jurisdiction of the BOP to resolve. See Weinberger v. Salfi, 422 U.S. 749, 765 (1975).

Salfi dealt with a § 1983 challenge, which carries a statutory jurisdictional requirement for administrative remedy exhaustion. Due to this, I have argued that the requirement in that case for the Petitioner to at least have attempted to file administrative remedy is distinguishable from the FSA argument under § 2241 because there is no jurisdictional requirement for administrative exhaustion here. One who is contemplating filing such a petition due to this article, however, may wish to get it in writing that the BOP cannot make a determination on this issue, though, if simply to avoid having to argue back and forth on the exhaustion issue in court.

“I don’t wanna live, to waste another day underneath the shadow of mistakes I’ve made” – Shinedown featuring Lzzy Hale (“Breaking Inside”)

“Believe and act as if it were impossible to fail” - Charles Keetering

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