An Incarcerated Texan Says He Should Already Be Home. Why Is He Still In Federal Lockup?

Under an interpretation of the First Step Act, the federal government has said it does not have to give people so-called “home confinement credits” until 2022.

By Paul DeBenedettoApril 13, 2021 10:31 am, , , ,

From Houston Public Media:

More than 45,000 incarcerated people have gotten sick with COVID-19 in federal detention since the start of the pandemic. Monty Shelton is one of them.

Shelton, who’s incarcerated at the Bastrop Federal Correction Institution in almost total lockdown, was diagnosed in November. There was nothing he could do to stop it, he said: Though the prison took the pandemic seriously, they couldn’t do much more than take temperature checks. He said they removed access to ice and hot water machines, arguing they could be “super spreader” areas. Meals were delivered. Showers were limited to a few minutes every other day. And it was nearly impossible to keep a safe social distance in a seven-by-12-foot cell with two other people.

He was asymptomatic, but he said those who did show symptoms didn’t have access to Tylenol, Ibuprofen or allergy tablets.

“They said that we would try and mask the symptoms of COVID,” Shelton said. “They wouldn’t issue us any pain pills when we when we did have COVID, so it was it was it was pretty bad for those people that weren’t asymptomatic.”

One thing advocates have argued since the pandemic started is to release people from prison and jails to help stop the spread of COVID-19. Shelton has been arguing to be released under a program that lets incarcerated people earn work credits to finish their sentence at home.

And he says he’s earned enough. But in court filings, the U.S. Bureau of Prisons has fought for months to keep those credits from him.

“All of these earned home confinement credits that I have earned, I’m losing, because they won’t grant them to me before I get out,” Shelton said. “I would have been out before I got sick, and I probably wouldn’t have gotten sick.”

Shelton isn’t alone. Across the country, the BOP and the U.S. Department of Justice are fighting attempts by incarcerated people to get out of prison and finish their sentences from home under what’s known as home confinement.

Under the First Step Act, passed in 2018 and signed into law by President Donald Trump, people in federal lockup can, among other things, earn home confinement credits for certain activities while incarcerated. The law saw overwhelming bipartisan approval, passing 87–12 in the U.S. Senate and 358–36 in the U.S. House of Representatives.

The law was also praised by criminal justice reformers, with the ACLU saying it would “directly improve the lives of people harmed by our broken criminal justice system.”

“It’s not often that you’ll find the ACLU on the same side of an issue as President Donald Trump,” wrote Charlotte Resing, a policy analyst for the civil rights group.

There are currently more than 7,000 people finishing their sentences at home or in a halfway house.

But in many cases, the BOP and DOJ have fought to keep people incarcerated by arguing that prison officials are currently under no obligation to give home confinement credits to anyone until 2022.

That’s what happened in Monty Shelton’s case. In a petition to a federal judge in Austin, Shelton argued he was entitled to home confinement credits earned since April 2019 thanks to a prison work program run by Federal Prison Industries, better known by its trade name, UNICOR.

The government pushed back against his petition using two arguments.

First, BOP said it has not yet determined “which programs and activities will qualify to earn credits.”

A page from the First Step Act Approved Programs Guide, detailing programs eligible for home confinement credits.

But that argument runs contrary to a pair of documents released by the BOP itself, according to James Felman, board of directors with the National Association of Criminal Defense Lawyers.

Felman, who also serves as chair of NACDL’s First Step Act implementation task force, pointed to a document the bureau released one month prior to making its argument in Shelton’s case — entitled First Step Act Approved Programs Guide, where such work programs are explicitly cited as acceptable “Evidence-Based Recidivism Reduction Programs” eligible for credit. A second BOP document listing the programs also includes UNICOR.

“They’re mostly the same, and mostly they’re the same numbers and programs and productive activities,” Felman said. “So I don’t know how you could square that statement with these publications of the the bureau.”

The government also argued in Shelton’s case that the First Step Act gives the BOP two years to “phase in” implementation of earned time credits. Under that interpretation, time would not accrue until Jan. 15 of 2022.

That’s a dubious interpretation, according to criminal defense attorney Danya Perry of Perry Guha LLP.

Perry, who is also a trustee with the Vera Institute of Justice, succesfully challenged the government’s position last year in New Jersey federal court, where a judge found that BOP’s position “is contrary to the statutory language, not to mention the unfairness of such a result.” Her client, Aryeh Goodman, was given back 120 days of earned time.

“There are untold numbers of inmates within the prison system who are low risk of recidivism, and who have served their time and who are trying to engage in these productive programming,” she said. “They should get the time, the earned credit, for the programming that has been implemented and that they’re faithfully participating in.”

Perry also represented President Donald Trump’s former lawyer Michael Cohen in his bid for home confinement credits. And she said she’s seen similar cases all across the country.

“You’re seeing the BOP, through the U.S. Attorney’s office who is required to represent them, you’re seeing them fight,” she said. “And you know, they’re willing to die in every single ditch. And so I think that’s just a big-picture policy question with the BOP.”

The Bureau of Prisons did not respond to requests for comment. A Department of Justice spokesman declined to comment on Shelton’s case, and on the government’s position.

The BOP has been roundly criticized for its reluctance to enforce its own programs during the ongoing pandemic. In August, Houston Public Media reported that the agency put its Residential Drug Abuse Program on hold in many prisons. That program allowed incarcerated people to participate in education or work activities that would allow them to shave time off their sentences upon completion.

And reporters from the Marshall Project found that federal prison wardens denied or ignored more than 98% of compassionate release requests.

Monty Shelton, meanwhile, is nearing the end of his sentence. He may never get his work credits. But he’s still fighting for them, because he hopes it will help others.

And after a pandemic year, he hopes people outside of prison can understand and learn to empathize with those that that have been locked away.

“I certainly hope everyone understands after their basic incarceration in their own homes through quarantine just how horrible it is to have your freedom taken away,” Shelton said. “The prisoner’s plight is something that I hope people become interested in.”

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