Back to School, Wherever You Are – Update for May 7, 2026

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

ANOTHER CIRCUIT HOLDS INMATES CAN EARN FSA CREDITS BEFORE ARRIVAL AT PRISON

A week ago, I reported that the 4^th Circuit had ruled in Benson v. Warden that programs completed in non-BOP jails after sentencing but while awaiting delivery to the prisoner’s designated facility can earn eligible inmates First Step Act credit under 18 USC 3632. Last week, the 1^st Circuit checked in, holding the same, that the FSA authorizes a prisoner sentenced to a federal sentence but not shipped yet is eligible for FSA credits for completing county jail programs.

Art Miles was sentenced in 2022 and 2023 to 300 months’ imprisonment for two separate federal convictions. In all, he spent 15 months in county jail after the first sentencing before the Marshals finally hauled him to a BOP prison.

The BOP refused him any credit for programs and work he performed while in the county lockup. The district dismissed his 28 USC 2241 habeas petition, and Art appealed.

Last week, the 1^st Circuit reversed, granting Art eligibility for 15 months’ worth of credit. The FSA states that eligibility begins with commencement of the sentence, but the BOP’s regulation says eligibility begins when the inmate arrives at the designated prison. The Circuit said, “As the magistrate judge in this case, and the multiple courts it cited (and many others) have observed, the view expressed in the regulation of when a sentence commences plainly conflicts with the text of the FSA… There is no way to reconcile ‘arrival’ at a facility as it appears in the BOP’s regulation with ‘awaiting transportation to’ that facility… The BOP’s conflicting regulation is thus invalid… and Miles could not properly be denied time credits based solely on the fact that his work as an orderly preceded his arrival at FMC Devens.

The BOP argued that Art had not had “individualized risk and needs assessment” performed until he arrived at the prison, and that it is not required to award credits for an inmate’s participation in programs unless the risk and needs assessment has taken place. The Circuit rejected that position:

[T]he statutory obligation to provide prisoners “with the opportunity to actively participate in” EBRR programs during “their entire term of incarceration,”18 USC 3621(h)(6), is incompatible with the BOP’s claim that it can refuse to credit prisoners’ participation in programming that it later determines meets the prisoners’ “specific criminogenic needs” simply because that participation preceded the assessment that identifies those needs. As the BOP itself admits, no provision of the FSA proscribes awarding credits for successful pre-assessment participation.

Reasonably construed, then, the FSA’s mandate to give prisoners the opportunity to participate in EBRR programs throughout their term of imprisonment requires the BOP to award credits for successful participation in EBRR programs or their equivalent when that participation occurs after the starting point set by the statute — the commencement of the sentence — regardless of the timing of the risk and needs assessment.

Miles v. Bowers, Case No. 25-1291, 2026 U.S.App. LEXIS 11998 (1st Cir. April 27, 2026)

Benson v. Warden, Case No. 24-6713, 2026 U.S.App. LEXIS 11454 (4th Cir. April 22, 2026)

~ Thomas L. Root