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Eleven Comments, One Blind Spot: What the Public Told the BOP About Time Credits

17 September 2026

Legal Battles & Legislative Updates

Eleven Comments, One Blind Spot: What the Public Told the BOP About Time Credits

When we covered the Bureau of Prisons’ time credits rule in August, the question was whether the Bureau would let people earn the credits Congress gave them. Two changes went in. Inmates can now start earning at sentencing instead of at arrival, and treaty transfer inmates are no longer shut out. Both were forced by courts, and we said so at the time.

The rule takes effect September 30. So does the comment period. Anyone writing in is arguing about a regulation that is already in force, which is what the Bureau bought when it found good cause to skip prior notice and a delayed effective date. The Bureau said as much in the rule and opened the docket anyway.

Eleven comments have been filed since. All of them are on regulations.gov under docket BOP-2026-0001. Not one opposes the rule. The pattern is what matters: almost every comment credits the Bureau for fixing the front of a federal sentence, then asks about the back.

The days that still do not count

A family member filed this one on September 16: “Why when in a BOP facility and the inmate travels to a court hearing and it takes 112 days out of the BOP facility but still a BOP inmate does this person not get credits for those days under second step. He is told they do not count those days because he is not under BOP but Marshalls. He is still a BOP inmate.”

Another comment, filed the same day, describes a daughter who spent six and a half years in pretrial status and earned sixteen program certificates plus a GED, roughly 810 hours of qualifying work. Her mother’s question is narrower than it should have to be: “If this info is factual, will this mean she will get out early? No one at her prison can answer her.”

Those are the same gap seen from two directions. This rule moved the start of the earning window to the day a sentence begins. It says nothing about the days someone spends in transit to a court hearing, or in a county jail in Marshals Service custody, or in pretrial status completing programs. The Bureau’s own cost estimate for the change rests on an average of 66 days between sentencing and arrival at a designated facility. For the person inside that average, the clock now starts early and still hits a wall.

The other end of the sentence

The longest comment in the docket asks the Bureau to fix the exit the way it just fixed the entrance. Mike Harris, managing partner of McCracken Stoll & Associates, filed a three-page comment arguing that the reasoning which removed the arrival clause applies with equal force at the end of a custodial sentence. Credits should not be awarded before they are earned, he writes, but they can be projected into a conditional placement calculation so that residence verification, halfway house referral, and home confinement review start early enough for the credits to have practical value. Otherwise a person who qualifies for release months before the paperwork moves is released months late, and the incentive the statute created loses its force at the moment it should pay off.

A second commenter, Gregory Bartko, raises the question the rule leaves open. In Gonzalez v. Herrera, the Ninth Circuit held in August 2025 that earned time credits can reduce a term of supervised release. Bartko notes that the Bureau and the Justice Department treat that decision as controlling inside the Ninth Circuit while denying the same benefit everywhere else, even as this rule announces that it reflects the best reading of the First Step Act and conforms with recent case law trends.

The conflict is already nationwide. In March, a divided Second Circuit held the opposite of Gonzalez, concluding that the statute does not permit earned credits to reduce supervised release at all. Two circuits, one sentence of one statute, two answers, and a rule that says it is following case law without saying which line it will follow. Bartko asks the Bureau to preserve credit records in the meantime so that credits are not treated as forfeited because a person has already left custody and gone home.

Logistics the Bureau controls

The comment that names the real obstacle came from Niva Cruz on September 14. The Bureau’s facilities administer the First Step Act, she wrote, and they have no discretion to decide whether implementing it is convenient. A facility should not be allowed to delay or narrowly read qualifying credits “because doing so results in fewer inmates being housed at that institution.”

That is the mechanism this site keeps documenting. Halfway house capacity, home confinement beds, verification of programming, the ordinary friction of moving paperwork between jails, prisons, and reentry centers: each becomes an argument for keeping someone locked up past the date the statute sets. The Bureau can fix logistics. It cannot add an eligibility requirement Congress never wrote.

What the docket is for

The Bureau changed two regulations in this rule and courts made it change both. The First Circuit’s Miles v. Bowers did the work on the arrival clause. The Fifth Circuit did it for treaty transfers. The Bureau’s contribution was to concede the point and then file the result as deregulation, because a rule that saves money qualifies under the executive orders driving the review as a cost-reducing action. Its estimate of the savings is about $54 million a year, and thousands of people are supposed to benefit.

Meanwhile a person can now start earning credits at sentencing. Whether a program is available to complete, whether there is anywhere to apply the credits, and whether the record stays straight across transit, county jail, prison, reentry, and supervised release are separate questions. This rule answers none of them. Eleven people have put their answers in the docket instead, and anyone who wants to add to the record has until September 30. Comments can be filed anonymously, and the Bureau says it will accept them after the rule has already taken effect, which is the only kind of comment this rule allows.

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