Federal Prison News · First Step Act
His Release Date Hasn't Moved and Nobody Will Tell Us Why
You have been checking that date for months. He finished the class. His counselor said it would move. You looked again this morning and it is the same day it has always been, and when he calls you can hear that he has stopped believing anybody in there.
Nobody in that building is going to sit down and explain this to you. So here it is.
What is actually happening
His release date is not a decision somebody makes. It is a calculation, and four things go into it. When a date doesn't move, it is almost always one of these four.
One: the court never had anything to do with it. The judge does not calculate his release date — not at sentencing, not after. The Supreme Court settled this in United States v. Wilson, 503 U.S. 329 (1992): "the Attorney General has no choice but to make the determination as an administrative matter when imprisoning the defendant," and "§ 3585(b) does not authorize a district court to compute the credit at sentencing." Id. at 334–35. Writing to the judge usually sends your letter to the one person who cannot fix it. The Bureau of Prisons holds the number.
Two: good conduct time is capped, and it is not automatic. Under 18 U.S.C. § 3624(b)(1), someone serving more than a year can get "up to 54 days for each year of the prisoner's sentence imposed by the court" — but only if the Bureau finds he "has displayed exemplary compliance with institutional disciplinary regulations" that year. A write-up can cost some or all of that year's credit, and the statute is blunt: "Credit that has not been earned may not later be granted."
Three: First Step Act credits are a separate thing from good conduct time. Under 18 U.S.C. § 3632(d)(4)(A), a prisoner "shall earn 10 days of time credits for every 30 days of successful participation," and someone the Bureau rates minimum or low risk, who has not gone up over two consecutive assessments, earns "an additional 5 days of time credits for every 30 days." Two things families rarely hear. The same statute bars credits for programming done "during official detention prior to the date that the prisoner's sentence commences," § 3632(d)(4)(B)(ii) — so the months in county jail before sentencing earned him nothing here. And § 3632(d)(4)(D) excludes certain convictions from earning these credits at all.
Four: earning credits and getting them applied are two different steps. Earned credits go toward prerelease custody or supervised release, not straight off the back of the sentence. Section 3624(g)(1) requires, among other things, credits equal to the remainder of his term and a reduced or maintained low recidivism risk on the reassessments; § 3624(g)(3) lets the Bureau move his supervised release start up by "not to exceed 12 months." So a man can earn credits every month and watch the locator date stay frozen, because what is moving is his halfway house or home confinement date, not the public website.
None of that means the number is right. It means you now know which of the four to ask about.
What to do today
Ask him to request his sentence computation in writing from his counselor or case manager. Not what somebody said in the hallway. The paper. Until you are both looking at the same document, you are arguing about a number neither of you has seen.
Then ask him: has he ever gotten a written response about his date from anyone? Write down the date. Everything below runs on dates.
Understand what you cannot do, so you don't lose weeks. The Bureau's regulation says you may help — "An inmate may also obtain assistance from outside sources, such as family members or attorneys" — then says plainly: "no person may submit a Request or Appeal on the inmate's behalf." 28 C.F.R. § 542.16(a). Gather the paperwork, type it, mail him copies, keep the calendar. He signs and submits it. Anyone who says they will file it for him is confused or selling you something.
What to do this week
This is the ladder. Each rung has a deadline, and the deadlines are the whole game.
Step 1 — Informal resolution. Before anything formal, "an inmate shall first present an issue of concern informally to staff, and staff shall attempt to informally resolve the issue." 28 C.F.R. § 542.13(a). He gets the form from his counselor. (The regulation gives this step no form number; inside, staff usually call it the BP-8.)
Step 2 — The BP-9. This is the deadline that matters most. "The deadline for completion of informal resolution and submission of a formal written Administrative Remedy Request, on the appropriate form (BP-9), is 20 calendar days following the date on which the basis for the Request occurred." 28 C.F.R. § 542.14(a). Twenty days. Not thirty. If he is already past it, § 542.14(b) allows an extension "where the inmate demonstrates a valid reason for delay" — so he files anyway and explains in writing why it was late.
Language he can put on the form, in his own handwriting:
My projected release date has not been recalculated to reflect [the programming I completed on (date) / the time I served in official detention from (date) to (date)]. I request a written explanation of my current sentence computation, including how good conduct time under 18 U.S.C. § 3624(b) and time credits under 18 U.S.C. § 3632(d)(4) have been applied to my sentence, and correction of any error.
One issue per form. Section 542.14(c)(2) says a form with multiple unrelated issues "shall be rejected and returned without response." Keep it to the date and nothing else.
Step 3 — They have to answer, and silence counts. Under 28 C.F.R. § 542.18, the Warden must respond within 20 calendar days, the Regional Director within 30, the General Counsel within 40, with one written extension allowed. And then this: "If the inmate does not receive a response within the time allotted for reply, including extension, the inmate may consider the absence of a response to be a denial at that level." Being ignored is not the end of the road. It is a denial, and he appeals from it.
Step 4 — The appeals, and their clocks. "An inmate who is not satisfied with the Warden's response may submit an Appeal on the appropriate form (BP-10) to the appropriate Regional Director within 20 calendar days of the date the Warden signed the response. An inmate who is not satisfied with the Regional Director's response may submit an Appeal on the appropriate form (BP-11) to the General Counsel within 30 calendar days of the date the Regional Director signed the response." 28 C.F.R. § 542.15(a). That same section adds: "Appeal to the General Counsel is the final administrative appeal."
Keep every copy. Section 542.15(b)(1) requires him to attach copies of the earlier filings and responses to each appeal. Lose the BP-9 response and the BP-10 gets rejected on paperwork while the clock keeps running. Ask him to mail you a copy of everything the day he files it.
What to stop worrying about
Stop writing the judge. Wilson is clear that the district court cannot make this calculation. Your letters are not being ignored out of cruelty; they went to the wrong place.
Stop treating the locator date as the whole truth. It does not show halfway house placement or home confinement, which is where First Step Act credits usually show up first.
Stop assuming silence means he did something wrong. Under § 542.18, a response that never comes is a denial he can appeal — the regulation contemplates exactly this.
Stop paying anyone who promises you a date. Nobody can promise you a release date — not us, not a lawyer, not the person who called you. What this process gives him is the right to a written answer, and a record if that answer is wrong. That is worth a great deal, and it is not the same as a guarantee.
Why we are telling you all of this for free
We would rather you had the deadlines, because the twenty-day clock in § 542.14(a) does not wait for anybody's appointment calendar. Prisoner Legal Aid prepares documents and explains deadlines under the oversight of a licensed attorney, and when his dispute needs to go further than the administrative remedy process, we can prepare that paperwork too.
Stuck on a step? Call 786-408-5073. Bring the dates.
More on this subject: all articles on this topic.
More in First Step Act & BOP