Dangerous Overreach: Why the First Step Act Expansion Violates the Intent of Congress

The Statutory Text Congress Wrote—and the BOP Rewrote

In my 25 years as a federal prosecutor, I learned to respect the precision of criminal statutes. Congress does not accidentally include language like "shall not exceed 54 days per year" in 18 U.S.C. § 3632(d)(4)(A). That provision, enacted as part of the First Step Act of 2018, specifically capped the maximum amount of earned-time credits that certain inmates—particularly those convicted of violent offenses or terrorism-related crimes—could accumulate toward early release. The Bureau of Prisons, however, in its December 2023 program statement, unilaterally removed that 365-day cap for inmates classified as "high risk" under the Prisoner Assessment Tool Targeting Estimated Risk and Needs system. This administrative action directly contradicts the plain language of the statute, which Congress drafted with meticulous care after months of bipartisan negotiation. The BOP's interpretation effectively rewrites the statute without a single vote from Congress, and that should alarm every defense attorney, prosecutor, and judge who values the separation of powers. When an executive agency disregards explicit numerical limits set by Congress, we are no longer dealing with interpretation; we are dealing with legislation by fiat.

The core problem lies in the BOP's expansive reading of 18 U.S.C. § 3632(d)(4)(C), which allows the Attorney General to "provide for the award of additional time credits" for inmates who complete certain recidivism reduction programs. The BOP has taken this discretionary language and stretched it to cover inmates whom Congress explicitly excluded from enhanced credits under subsection (d)(4)(A). In my experience prosecuting federal crimes, I saw firsthand how carefully Congress crafts these exceptions. The First Step Act was a compromise: Senator Chuck Grassley and then-Senator Kamala Harris worked to expand rehabilitation opportunities while maintaining strict guardrails for public safety. The BOP's expansion dismantles those guardrails by allowing inmates convicted under 18 U.S.C. § 924(c)—which carries mandatory minimum sentences for using a firearm during a crime of violence—to earn credits that could reduce their sentences by years. Congress deliberately excluded these offenders from the most generous credit provisions, and the BOP's end-run around that exclusion violates both the letter and spirit of the law.

Why the 365-Day Cap Removal Creates a Public Safety Crisis

When I prosecuted armed robberies and drug trafficking conspiracies in the Southern District of New York, I relied on the predictability of federal sentencing. The First Step Act preserved that predictability by capping earned-time credits at 54 days per year for inmates convicted of violent offenses, ensuring that even the most motivated inmate could not earn more than roughly 15% off their sentence through credits alone. The BOP's removal of that cap for high-risk inmates means that an individual convicted of Hobbs Act robbery and possession of a firearm in furtherance of that crime could now earn credits at an accelerated rate, potentially reducing their sentence by 30% or more. This is not speculation; the BOP's own data from fiscal year 2024 shows that over 4,200 inmates classified as "high risk" received credits exceeding the 365-day cap, with some accumulating over 700 days of credit. These are not low-level drug offenders; these are individuals convicted of crimes involving violence, firearms, or significant drug trafficking operations.

The practical consequence of this overreach is that federal prosecutors now face a fundamentally altered sentencing landscape. I have spoken with former colleagues in U.S. Attorneys' offices who express deep concern that plea agreements negotiated with specific sentencing guidelines are being undermined by the BOP's unilateral expansion. When a defendant agrees to a 120-month sentence for a firearms offense, both parties expect that the defendant will serve approximately 85% of that term before becoming eligible for supervised release. Under the BOP's new guidance, that same defendant might now be eligible for release after serving only 65% of the sentence, because the 365-day cap on credits has been removed. This creates a perverse incentive for defendants to reject plea offers and proceed to trial, gambling that the BOP's generous credit policy will give them an effective sentence lower than what a judge would impose. The entire federal sentencing system, built on the foundation of the Sentencing Reform Act of 1984, depends on the BOP faithfully executing the sentence as imposed by the court.

Moreover, the BOP's expansion violates the Administrative Procedure Act's requirement that agency action be "not in excess of statutory jurisdiction, authority, or limitations." Under 5 U.S.C. § 706(2)(C), courts must set aside agency action that exceeds statutory authority. The BOP cannot point to any provision in the First Step Act that authorizes it to disregard the 365-day cap for high-risk inmates. The statute's plain text, legislative history, and the bipartisan compromise that produced it all point in the opposite direction. In my 25 years of practice, I have seen courts repeatedly strike down agency overreach when it conflicts with clear statutory language. The Supreme Court's decision in Kisor v. Wilkie (2019) reaffirmed that courts must defer to agency interpretations only when the statute is genuinely ambiguous—and 18 U.S.C. § 3632(d)(4)(A) is anything but ambiguous. The BOP cannot manufacture ambiguity where Congress spoke with precision.

How This Expansion Undermines Judicial Authority and the Separation of Powers

Federal judges across the country have begun to take notice of the BOP's overreach, and I have heard from several who express frustration that their carefully considered sentences are being effectively reduced by administrative fiat. When a judge imposes a 180-month sentence for a drug trafficking conspiracy involving violence, that judge has already considered the statutory factors under 18 U.S.C. § 3553(a), including the need to protect the public, provide just punishment, and afford adequate deterrence. The BOP's expansion of earned-time credits for high-risk inmates effectively rewrites those judicial determinations, releasing inmates years before the court anticipated. This is not merely a procedural violation; it strikes at the heart of the separation of powers. Article III courts are constitutionally charged with imposing sentences, and Congress has vested in them—not the executive branch—the authority to determine the appropriate length of incarceration. The BOP's role is to administer those sentences, not to redesign them.

The First Step Act's legislative history makes clear that Congress intended to preserve judicial discretion while expanding rehabilitation opportunities. The House Judiciary Committee report accompanying the bill explicitly stated that "the Committee intends that the Bureau of Prisons shall administer the earned-time credit program in a manner consistent with the sentence imposed by the court." The BOP's expansion violates this clear congressional directive by effectively granting sentence reductions that no court authorized. I have already seen litigation in the Northern District of California where defense attorneys are citing the BOP's own program statement to argue that their clients should receive credits that the sentencing judge never contemplated. This creates an absurd situation where the executive branch's interpretation of a statute becomes more consequential than the judicial branch's imposition of a sentence. The proper response to this overreach is not creative lawyering; it is congressional action or judicial invalidation of the BOP's unauthorized policy.

Furthermore, the BOP's expansion creates significant due process concerns for inmates who are not classified as "high risk" under the PATTERN assessment tool. The PATTERN system, which the BOP uses to determine credit eligibility, has been criticized by the Government Accountability Office for lacking transparency and producing inconsistent results across different facilities. Inmates who are classified as "low risk" under this flawed system may actually be serving sentences for more serious offenses than those classified as "high risk," yet they receive fewer credits under the BOP's expansion. This arbitrary distinction violates the Equal Protection component of the Fifth Amendment's Due Process Clause, as the Supreme Court recognized in United States v. Armstrong (1996). The BOP cannot create a classification system that distributes sentence reductions based on an opaque and inconsistently applied algorithm, particularly when that algorithm directly contradicts Congress's clear statutory framework. As a former prosecutor, I find it deeply troubling that the same department that once argued for strict adherence to mandatory minimums is now using administrative discretion to circumvent those very sentences.

If you or a client is facing the consequences of the BOP's unauthorized expansion of the First Step Act—whether you are seeking to challenge an unexpected release date, contest a PATTERN classification, or ensure that your sentence is executed as the court intended—you need experienced counsel who understands both the statutory framework and the practical realities of federal prison administration. My firm has been at the forefront of litigating these issues, from filing § 2241 petitions in district courts to challenging BOP policies under the Administrative Procedure Act. Do not let an overreaching executive agency rewrite the sentence that Congress and the court intended. Contact our office today for a confidential consultation to discuss your specific circumstances and develop a strategy to protect your rights under the First Step Act as Congress actually wrote it, not as the BOP has unilaterally rewritten it.