The opinion
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVSION
JACQUELINE D. )
KENNEDY-ROBEY, )
)
Petitioner, )
)
v. ) No. 20-cv-1371
)
Warden, FCI Pekin )
)
Respondent. )
ORDER AND OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This matter is before the Court on Petitioner Jacqueline D.
Kennedy-Robey’s Petition for Writ of Habeas Corpus under 28
U.S.C. § 2241 (d/e 1). Petitioner argues that she is entitled to have
Earned Time Credits earned under the First Step Act’s Risk and
Needs Assessment System applied to her sentence. For the
reasons below, the Court DISMISSES Petitioner’s Petition (d/e 1)
as premature.
I. BACKGROUND
Kennedy-Robey filed this Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2241 on October 26, 2020. At the time she filed
her Petition, she was incarcerated at FCI Pekin, in Pekin, Illinois.
On November 17, 2020, she was transferred to a Residential
Reentry Center (RRC), but the Court retains jurisdiction over her
case. See In re Hall, --- F.3d. ---, No. 20-3245, 2021 WL 524499,
at *1 (7th Cir. Feb. 12, 2021) (“[A] prisoner’s transfer from one
federal facility to another during the pendency of a habeas corpus
proceeding does not affect the original district
court’s jurisdiction.”). Kennedy-Robey argues that she has
participated in evidence-based recidivism reduction programming
and productive activities pursuant to the Risk and Needs
Assessment System (“System”), enacted as part of the First Step
Act, but the Bureau of Prisons (BOP) has not awarded her any
earned time credits. Based on her calculations she claims she is
entitled to a release date of November 10, 2020. Her projected
release date is currently August 22, 2021.
After the Court ordered a response, Respondent filed a Motion
to Dismiss (d/e 4) on December 15, 2020, requesting that the
Court dismiss the case without prejudice for failure to exhaust
administrative remedies. The Court denied Respondent’s Motion to
Dismiss on January 5, 2021 (d/e 9), finding that exhaustion of the
issues here would be futile because they were issues of statutory
interpretation that the BOP had already predetermined.
Respondent filed a response (d/e 12) to the merits of the
Petition on January 26, 2021. Respondent argues that Kennedy-
Robey has not earned any days of time credits and will not be able
to earn more now that she has been placed in an RRC. Further,
Respondent argues that the BOP is not required to apply any
earned time credits until the end of the First Step Act’s designated
phase-in period on January 15, 2022. Kennedy-Robey filed a reply
(d/e 13) on February 9, 2021.
The Court has thoroughly and carefully reviewed the parties’
filings, and this order now follows.
II. DISCUSSION
A. The First Step Act’s Risk and Needs Assessment
System
Kennedy-Robey’s claim involves Section 101 of the First Step
Act of 2018, Public Law 115-391, which mandated the creation of
a “risk and needs assessment system,” codified in 18 U.S.C.
§ 3632. Under the statute, the Attorney General was required to
develop a risk and needs assessment system (“System”) “not later
than 210 days after the date of enactment of this subchapter.” 18
U.S.C. § 3632(a). Relevant to this Petition, the System “shall be
used to . . . determine when to provide incentives and rewards for
successful participation in evidence-based recidivism reduction
programs or productive activities” and “determine when a prisoner
is ready to transfer into prerelease custody or supervised release in
accordance with section 3624.” 18 U.S.C. § 3632(a)(6)-(7).
Section 3632(d), entitled “Evidence-based recidivism
reduction program incentives and productive activities rewards,”
requires the System to include incentives and rewards. Section
3632(d)(4)(A) specifically provides that eligible prisoners:
shall earn time credits as follows:
(i) A prisoner shall earn 10 days of time credits for
every 30 days of successful participation in
evidence-based recidivism reduction programming
or productive activities.
(ii) A prisoner determined by the Bureau of Prisons
to be at a minimum or low risk for recidivating,
who, over 2 consecutive assessments, has not
increased their risk of recidivism, shall earn an
additional 5 days of time credits for every 30 days
of successful participation in evidence-based
recidivism reduction programming or productive
activities.
18 U.S.C. § 3632(d)(4)(A).
However, despite this broad language, other provisions of the
First Step Act allow the BOP to delay the immediate application of
the System and also limit when prisoners can have their time
credits applied. The System was not required to be developed until
210 days after the First Step Act was enacted, or by July 19, 2019.
18 U.S.C. § 3632(a). After that date, the BOP was not required to
complete a risk assessment for each inmate until 180 days after
the System was developed, which fell on January 15, 2020. 18
U.S.C. § 3621(h)(1)(A). From the record before the Court, the BOP
met both of these deadlines. The BOP has an additional two years,
or until January 15, 2022, to phase in programming and provide
“evidenced based recidivism reduction programs and productive
activities for all prisoners . . . .” 18 U.S.C. § 3621(h)(2)(A-B).
During this two-year phase-in period, “the priority for such
programs and activities shall be accorded based on a prisoner's
proximity to release date.” 18 U.S.C. § 3621(h)(3). The BOP has
discretion to expand programs and activities and to offer the
System’s incentives and rewards as of the date of enactment of the
First Step Act (December 21, 2018):
Beginning on the date of enactment of this subsection,
the Bureau of Prisons may begin to expand any evidence-
based recidivism reduction programs and productive
activities that exist at a prison as of such date, and may
offer to prisoners who successfully participate in such
programs and activities the incentives and rewards
described in subchapter D.
18 U.S.C. § 3621(h)(4).
The BOP has also issued proposed regulations that would
limit the award of FSA time credits to only the successful
completion of a given program, with “successful completion”
established by the elements of each evidence-based recidivism
reduction programming or productive activities. See Proposed
Rule, Bureau of Prisons, FSA Time Credits, 85 Fed. Reg. 75,268,
75,271 (Nov. 25, 2020) (proposed 28 C.F.R. § 523.41(c)). Further,
for the purpose of determining whether an inmate has successfully
participated in thirty days of evidence-based recidivism reduction
programming or productive activities programming or productive
activities, the BOP has proposed regulations clarifying that a “day”
of programming is an eight-hour period of participation in an
evidence-based recidivism reduction program or productive
activity. See id. at 75,272 (proposed 28 C.F.R. § 523.42(b), (c)).
Comments on the proposed regulations were due by January 25,
2021.
B. Kennedy-Robey’s Claim is Premature Because
Respondent is Not Required to Apply Time Credits
Before January 15, 2022.
Respondent argues that Kennedy-Robey’s claim is premature
and she lacks standing because the BOP has discretion under the
statute to delay awarding time credits until January 15, 2022, and
the Court, therefore, cannot order the BOP to apply time credits
before that date. Article III of the Constitution limits federal court
jurisdiction to cases and controversies. See U.S. Parole Comm’n v.
Geraghty, 445 U.S. 388, 395, 100 S. Ct. 1202 (1980). To establish
standing under Article III, the party seeking relief must establish
that it suffered an actual injury, traceable to the conduct of the
adverse party that is redressable by a favorable court decision.
See, e.g., Lujan v. Defs. of Wildlife, 504 U.S. 555, 560– 61 (1992).
Here, Respondent’s argument relies on the statute’s use of
the word “may” regarding offering incentives and rewards during
the System’s development and phase-in period:
Beginning on the date of enactment of this subsection,
the Bureau of Prisons may begin to expand any evidence-
based recidivism reduction programs and productive
activities that exist at a prison as of such date, and may
offer to prisoners who successfully participate in such
programs and activities the incentives and rewards
described in subchapter D.
18 U.S.C. § 3621(h)(4) (emphasis added). The use of the word
“may” indicates that, while it is permissible for the BOP to award
time credits under the statute at any time after the date of
enactment, the BOP is not required to do so. And, Respondent
argues that nothing else in the First Step Act requires the BOP to
award credits. See also, Llewlyn v. Johns, No. 5:20-CV-77, 2021
WL 535863, at *2 (S.D. Ga. Jan. 5, 2021), report and
recommendation adopted, No. 5:20-CV-77, 2021 WL 307289 (S.D.
Ga. Jan. 29, 2021) (finding based on this language that the “the
First Step Act does not require actual implementation for each
inmate until January 2022”). The Court agrees; the statute makes
implementation permissive during the System’s phase-in period,
not mandatory.
As Kennedy-Robey points out, other provisions of the First
Step Act seem to convey that the spirit of the law assumed that the
BOP would use its discretion and offer awards and incentives as
soon as possible. For instance, the First Step Act also instructs
the BOP that, during the two-year phase-in period, priority for
participation in evidenced based recidivism reduction programs
and productive activities “shall be accorded based on a prisoner’s
proximity to release date.” 18 U.S.C. § 3621(h)(3). However, while
this provision may assume that the BOP will use its discretion to
begin implementing the System, the provision does not require the
BOP to use its discretion at any certain point prior to the end of
the System’s phase-in period. And, despite Kennedy-Robey’s
insistence, the Court cannot require the BOP to use its discretion
when the statute does not.
Not only is the BOP’s decision to delay awarding credits
permitted under the statute, the BOP has legitimate reasons for
desiring to do so. As Respondent notes, the BOP has promulgated
regulations clarifying portions of the First Step Act, including
defining the terms “day” and “successful participation” in 18
U.S.C. § 3632(d)(4)(A). Clarification of these terms is necessary for
uniform application of the statute.
Nonetheless, at least one court has found that the BOP is
required to award time credits immediately. In Goodman v. Ortiz,
No. CV 20-7582 (RMB), 2020 WL 5015613, at *2 (D.N.J. Aug. 25,
2020), the court analyzed the provisions of the statute as a whole
and determined that Congress intended that credits would be
awarded during the phase-in period:
Turning to the statutory language here, first, 18 U.S.C.
§ 3621(h)(2) requires phase-in of the risk recidivism
program. The ordinary meaning of “phase-in” is to
implement gradually. The purpose of phasing in the
program is expressly defined by § 3621(h)(2) “so that
every prisoner has the opportunity to participate in and
complete the type and amount of evidence-based
recidivism reduction programs or productive activities
they need.”
Next, to determine whether the BOP is required to apply
Petitioner's Earned Time credits before the January 15,
2022 completion date for the phase-in, the “‘statute must
be read in [its] context and with a view to [its] place in the
overall statutory scheme.’ ” Util. Air Regulatory Grp., 573
U.S. at 320 (quoting FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 133 (2000)). In this regard, Section
3621(h)(1)(C) requires the BOP to “begin to implement ...
tools necessary to effectively implement the System over
time, while prisoners are participating in and
completing the effective evidence-based recidivism
reduction programs and productive activities” (emphasis
added.) Clearly, as the plain language states, this
statutory provision anticipates that some prisoners will
complete the programs within the 2-year phase-in period.
Furthermore, Section 3621(h)(3) instructs that “[d]uring
the 2-year period described in paragraph (2)(A), the
priority for such programs and activities shall be
accorded based on a prisoner's proximity to release date.”
Thus by making it a priority to provide the programs to
prisoners based on proximity to their release dates, the
statute makes it clear that prisoners who earned
sufficient time credits during the phase-in period could
be released prior to the end-date for the two-year phase-
in.
Id. at *5–6. Finally, the district court found that the discretion
afforded the BOP in 18 U.S.C. § 3621(h)(4)—which provides that
the BOP “may offer to prisoners who successfully participate in
such programs and activities the incentives and rewards” as of the
date of enactment of the First Step Act—was further evidence that
the statutory framework did not permit the BOP to delay
application of incentives.
While the Court agrees with the Goodman court that the
statutory text presumes that the BOP will use its discretion to
apply the provisions as early as possible, the Court, respectfully,
cannot find that the statute requires immediate implementation. If
immediate implementation were mandated, Congress would have
used the word “shall” and not “may” in 18 U.S.C. § 3621(h)(4).
While the “phase-in” period may imply a “phase-in” of the
incentives, this Court is not in the position of determining on
which date these incentives must be “phased-in.” Moreover, while
the statutory language may “anticipate[ ] that some prisoners will
complete the programs within the 2-year phase-in period,”
Goodman 2020 WL 5015613 at *6, this does not mean that the
statute requires the time credits for completed programs to be
applied during the 2-year phase-in period. The statutory language
indicates that Congress left this determination up to the BOP,
while at the same time giving the BOP a deadline of January 15,
2022. Until that date, the Court does not find that Kennedy-Robey
has any right to application of earned time credits that this Court
can enforce.
Here, Kennedy-Robey’s projected release date is August 22,
2021. While the BOP could, in its discretion award her earned
time credits before her release date, this Court cannot force the
BOP to do so. Accordingly, the Court finds that Kennedy-Robey
does not have standing to demand that the BOP apply her time
credits as she calculated or to pursue her further claim that the
BOP has incorrectly calculated her earned time credits as zero.
III. CONCLUSION
For the reasons above, the Court DISMISSES Petitioner
Jacqueline D. Kennedy-Robey’s Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2241 (d/e 1). This Case is CLOSED. The Clerk
is DIRECTED to prepare the judgment.
ENTER: March 2, 2021
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE