Crowe, et al. v Federal Bureau of Prisons, et al: Common Sense for the Win!

by

Susan M. Giddings, PhD, Unit Management Section Chief (Retired), Federal Bureau of Prisons

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

    

Last month, a District Judge from the United States District Court for the District of Columbia issued a Memorandum Opinion on a motion for a preliminary injunction and provisional class certification†in a class action lawsuit filed by the American Civil Liberties Union against the Bureau of Prisons over its perceived failure to properly implement the First Step Act (FSA) regarding prerelease placement and its rules language being contrary to the statutory language of the FSA[1]. Unlike other court challenges against the Bureau and its implementation of the FSA, this one did not attract the same level of attention from the usual voices bemoaning the agencyís failure. Why? It was straightforward. While the court granted the Plaintiffís motion for provisional class certification, the court found that the ìPlaintiffs have not established a likelihood of success on the merits, and dismissal of their facial challenge to the regulation is warranted (pp. 47-48). î More critical than the dismissal itself was the courtís analysis concerning the Plaintiffís arguments about the Bureauís authority and discretion. 

While pleasantly surprised by the decision, it was particularly gratifying for the authors because they have consistently argued that 1) there is nothing in the FSA that eliminated or modified the Bureauís designation authority, including halfway house and home confinement designations, and 2) the idea that the FSA required the Bureau to transfer an individual solely based their eligibility date regardless of any other compelling issues undermined the requirements of the Second Chance Act (SCA). The SCA required the Bureau to ensure that incarcerated individuals were provided with the same individualized consideration when making prerelease designation decisions as they were when making institution designation decisions. The decision-making process for prerelease placement (i.e., halfway house and home confinement) includes the inmateís unit team making a prerelease placement recommendation based on a variety of factors, including but not limited to individual release needs, institutional conduct, the current offense, history of success or failure in prior community placement, and criminal history. The completed designation request is then sent to residential reentry staff, who then consider all the information provided by the institution, as well as the community program resources and any community safety issues when making the designation decision.   

In making its decision, the court noted that it needed to determine whether the FSAís statutory ìshallî created a compulsory requirement on the Bureau or made the expansion of prerelease placement permissible. To make this determination, the court examined the full scope of statutory language relating to the FSA, prerelease custody, designation decision-making, and the Bureauís designation authority. The court found that there was nothing to suggest that the FSA's " shall transfer " language could be ìconstrued to mean that the BOP must disregard the multitude of factors contained in 3621 (b) [designation factors] when designating a ëplace of imprisonmentí for a prisoner who is eligible for transfer under the FSA (p. 44). î The court noted both the statutory provisions enacted by Congress in the SCA and the fact that there was nothing in the FSA that ìwalk walked backî those SCA provisions. Finally, in a welcome, common sense statement, the court stated, "Congress surely knew when it drafted the FSA that it had long ago granted the BOP broad discretion in designating where convicted individuals will serve their sentence [Ö] The BOPís decision whereóand thus whenóto transfer a prisoner to prerelease custody remains subject to the same array of considerations that Congress outlined in 3621(b) (p. 47)." The FSA neither eliminated nor amended the Bureauís decision-making authority over designation. Instead, it expanded the Bureauís authority to transfer individuals to prerelease custody beyond the final 12-month limitation created under the SCA when the individual has met the statutory criteria.

While this ruling was certainly a win for common sense, sound correctional management, and good governance, it is certainly not the end of the debate. Congress did not clearly articulate that the Bureauís designation authority was unchanged by the FSA, thus requiring courts to intervene. The previous Garland Administration failed to acknowledge the very statutory language that the court outlined in this opinion and support the Bureauís decision-making, choosing instead to view the ìshallî language in isolation and requiring the Bureau to issue the March 10, 2023, time credit policy change notice with its ìhowever, in all caseî [2] language, despite knowing the various issues as outlined in this opinion. Ultimately, resolution will require either the Supreme Court to rule on the language or Congress to act and correct the language, but this decision is a good first step.

1. Crowe et al v. Bureau of Prisons et al, No. 1:2024cr03582-Document 51 (D.D.C. 2025). Available at https://law.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2024cv03582/275991/51/

2. Bureau of Prisons, Program Statement 5410.01-CN2. First Step Act of 2018 ñ Time Credits: Procedures for Implementation of 18 U.S.C. ß 3632(d)(4). March 10, 2023. Available at https://www.bop.gov/policy/progstat/5410.01_cn2.pdf

Susan M. Giddings, a nationally recognized expert known for her work on the First Step Act, has over three decades of experience in adult federal corrections, with expertise in offender classification, case management practices, policy/procedure, and professional development. As Unit Management Section Chief with the Federal Bureau of Prisons, Ms. Giddings was one of the co-architects for implementing the Federal Time Credits program.

Bruce Cameron is a widely known expert, most known in his prior engagements as a federal law enforcement official. He has over 25 years of experience in development, consultation, and assessment for involved individuals. He is the founder of Federal Prison Authority. Bruce has given multiple national and international talks and presentations and authored several publications.

Susan and Bruce have co-authored Unlocking Federal Time Credits: A Guide for Attorneys, Inmates, and Families (2nd Edition), available for purchase on Amazon.com.