Summary of the Problem:  Good time credit is earned for good behavior, described in the law as "exemplary compliance with institutional disciplinary regulations."  Good time credit reduces a prisoner's sentence. This time off is also called "good conduct time."  The law governing good time is found at 18 U.S.C. § 3624(b), which provides that prisoners serving a term of imprisonment of more than a year may "receive credit toward the service of the prisoner's sentence, beyond the time served, of up to 54 days a year." 

            Since 1988, the BOP has awarded good time credit based on the time actually served by the prisoner, not the sentence (or "term of imprisonment") imposed by the judge. As a result, based on the way the BOP calculates good time, prisoners only earn a maximum of 47 days of good time for each year to which they are sentenced, instead of the 54 days per year contemplated by the statute.

Proposed Solutions:

            Legislative Changes:  The problem can be fixed with legislative language clarifying the statute to underscore that "term of imprisonment" means length of sentence imposed by the judge.  Amend 18 U.S.C.  § 3624(b).

            Legislative Appropriations (Solutions w/ Funding Requests):  Changing the way good time is administered would result in significant costs savings to the Bureau of Prisons.

Jurisdiction:

            Legislative Branch:   Senate and House Judiciary Committees

Background:

            Legislative Branch and Executive Branch:  Historically, good time credit was always calculated based on the length of the sentence imposed. The use of time served as the measure of good time occurred once before. In 1948, Congress added some clarifying words to the then existing good time statute, requiring that good time be "credited as earned and computed monthly."  The BOP interpreted this addition as requiring that calculation of good time be based on the time prisoners actually served in prison. This change had the effect of shortening good conduct sentence reductions.  Because Congress did not intend this outcome, in 1959 it corrected the BOP's interpretation by amending the statute again.  Congress deleted the words "be credited as earned and computed monthly" so that the BOP would not base its calculations on the time actually served but on the entire sentence imposed.

            Twenty-five years later, when Congress eliminated parole and adopted determinate sentencing in the Sentencing Reform Act, it shortened the amount of good time a prisoner could earn to 54 days per year, or roughly 15 percent of the sentence.  Congress did not indicate in any way that it sought to disturb the practice of calculating good time based on the length of the prisoner's sentence.  When the Sentencing Commission drafted sentencing guidelines pursuant to the Sentencing Reform Act, it understood that good time was to continue to be computed against time imposed, not time served.  The Commission, which was to use average sentences served in the pre-guideline era as the starting point, calibrated the guideline ranges in the Sentencing Table to include an extra 15 percent in sentence length based on the assumption that prisoners would serve 85 percent of sentences imposed.

            Congress shared that understanding.  In legislative floor debates in 1993 and 1994, Senator Joe Biden (D-DE) made explicit reference to the calculation of good time at 85 percent of an imposed sentence, using the example of a ten year sentence that could be reduced to 8 years and six months if the prisoner received all of his or her good time. In fact, because the calculation is based on time served, a ten year sentence can only be reduced to 8 years, 8 months, and 19 days, which amounts to an extra 2 months and 19 days, due to the method the BOP uses to calculate good time.

            Judicial Branch:  Thus far, the courts have tended to support the BOP's flawed calculation. Nine of the 11 federal circuits have held that the good time statute is ambiguous and that it is unclear whether Congress intended to base good time on the "term of imprisonment" imposed by the judge or on the "time served" by the prisoner.  Because of the perceived ambiguity, the courts have deferred to the BOP's interpretation of the statute. 

            The U.S. Supreme Court has not decided the question. Moreland v. Federal Bureau of Prisons, 431 F.3d 180 (5th Cir. 2005) cert. denied, 547 U.S. 1106 (2006).  Justice Stevens however, in an opinion respecting denial of certiorari on the issue, strongly indicated that the BOP has misinterpreted the statute and suggested Congress address the problem.

            I think it appropriate to emphasize that the Court's action does not constitute a ruling on the merits and certainly does not represent an expression of any opinion concerning the wisdom of the Government's position. ...both the text and the history of the statute strongly suggest that it was not intended to alter the pre-existing approach of calculating good-time credit based on the sentence imposed. ... Congress of course has the power to clarify the matter. Indeed, Congress has done so once before - in 1959 Congress amended the predecessor statute to §3624(b) for the specific purpose of undoing a judicial determination that credit should be based on time served rather than on sentence imposed.  ... This same concern may well prompt Congress to provide further guidance as to what §3624(b) means by term of imprisonment.

Potential Allies, Potential Opposition, and Public Opinion:

            Potential Allies:  Federal Public and Community Defenders, Families Against Mandatory Minimums, American Bar Association, National Association of Criminal Defense Lawyers, Professor Erwin Chemerinsky, Duke University Law School, International Community Corrections Association, Prison Legal News, StoptheDrugWar.org, International CURE, Virginia CURE, and the Constitution Project

            Public Opinion:  The Federal Public and Community Defenders and Families Against Mandatory Minimums have heard from hundreds of prisoners who called and wrote about this issue as they worked on legal challenges to the way the federal BOP calculates good conduct credit. They and their families feel strongly about this issue.

Experts: 

• Federal Public and Community Defenders Sentencing Resource Counsel
• For Further Information: 

Stephen R. Sady, Lynn Deffebach, The Sentencing Commission, the Bureau of Prisons, and the Need for Full Implementation of Existing Ameliorative Statutes to Address Unwarranted and Unauthorized Over-Incarceration (June 2008), paper for the USSC Alternatives to Incarceration Seminar.

Families Against Mandatory Minimums (FAMM), www.famm.org (Good Time FAQs).

Recommendations for Federal Criminal Sentencing in a Post-Booker World http://constitutionproject.org/sentencing/article.cfm?messageID=245&categoryId=7 

Principles for the Design and Reform Of Sentencing Systems: A Background Report, http://constitutionproject.org/sentencing/article.cfm?messageID=148&categoryId=7 

Mandatory Justice:  The Death Penalty Revisited, http://constitutionproject.org/pdf/mandatoryjusticerevisited.pdf