Pursuant to the First Step Act, enacted on December 21, 2018, the Attorney General was directed to provide an incentive for a person “who successfully completes evidence-based recidivism reduction programming or productive activities” to “earn time credits” that can “be applied toward time in prerelease custody or supervised release.” Nearly two years after the passage of this law, BOP issued a proposed rule setting forth procedures for eligible inmates to earn these FSA time credits.

BOP has not yet enacted that proposed rule. Rather, this October, BOP reopened the comment period, noting that “it is unclear to the Bureau whether commenters had fully considered the issue of whether D.C. Code offenders in Bureau of Prisons custody are eligible for time credits under 18 U.S.C. 3632(d)(4), as added by the FSA.” In response, Democracy Forward, along with the DC Justice Lab, FAMM, Justice Action Network, National Association of Criminal Defense Lawyers, and Washington Lawyers’ Committee for Civil Rights and Urban Affairs, have submitted a comment strongly encouraging BOP to revise its proposed rule to make clear that people convicted under the D.C. Code, who are serving their sentence in federal custody, would receive the full benefit of FSA time credits.

Specifically, we argue that a plain reading of the statutory text indicates that the FSA’s time credits provision applies to people convicted under the D.C. Code and that no other statutory provisions counsel against this interpretation. We also demonstrate that applying the FSA time credits provision to people convicted under the D.C. Code would not lead to an absurd result. Last, even if BOP is correct that the First Step Act is ambiguous as to whether it includes those who were convicted under the D.C. Code within its time-credit program, the rule of lenity should govern. Under this rule, “ambiguities about the breadth of a criminal statute should be resolved in the defendant’s favor.”

Read the entire comment here.