(Photo courtesy of the author)
Elizabeth Holmes, of Theranos fame, surrendered to the federal prison camp FPC Bryan in Texas on May 30, 2023 to begin a 135-month sentence for fraud.[1] Media outlets followed her attempts to postpone her surrender to prison while she appealed her conviction but ultimately those efforts failed. However, a prison term after the sweeping First Step Act means that federal prison sentences, particularly for white collar offenders, has dramatically changed. Even those with long prison terms could be home much sooner than they would have under older federal laws.
This article will focus on the application of the First Step Act to Ms. Holmes’ sentence, not to degrade her, but because she simply is a high-profile name with a high-profile sentence. The same principles used here can be used on any federal sentence with a similar charge.[2]
Prior to the First Step Act, most federal prisoners could receive up to 54 days off their sentence each year for every year of the imposed sentence. This is called Good Conduct Credit and those days are awarded at the beginning of the sentence but can be taken away for certain disciplinary infractions. The day that Ms. Holmes walked into prison, the Federal Bureau of Prisons (BOP) awarded her 608 days of Good Conduct Credits. In the past, most attorneys were telling their clients who were heading to prison that they could expect to serve 85% of their prison time, which approximately represents that 54 days of Good Conduct time for each year of the sentence. However, in December 2018, the First Step Act was signed into law giving prisoners an ability to cut their prison term and to increase the amount of time on home confinement for a portion of that sentence.
The First Step Act allows certain prisoners to earn up to 365 days off any imposed sentence by participating in prison programming meant to reduce recidivism and by participating in productive activities, such as a job or religious activities. These credits, which are awarded monthly, are limited to up to 15 days each month off the sentence. There are 68 crimes that are excluded from First Step Act credits, but frauds like those Ms. Holmes was convicted for are not among them. It is highly likely that Ms. Holmes will earn the entire 365 days of credits to effectively reduce her prison term by one year.
Beyond the year off, prisoners can continue to earn First Step Act credits that can be applied toward home confinement and there is no limit on those credits. Those with longer prison terms, like Ms. Holmes, will benefit from the ability to earn even more credits. In fact, over a 135-month sentence, Ms. Holmes can earn up to 960 days of First Step Act credits, 365 toward reducing the sentence (as mentioned above) and another 595 days toward home confinement.
Prisoners can also get up to 10% of their imposed sentence, up to a maximum of 180 days, of eligibility to be placed on home confinement under an older law known as the Second Chance Act. This is in addition to those home confinement days earned under the First Step Act.
There is one other program that can reduce time off sentences for white-collar offenders like Ms. Holmes. The Bureau of Prisons has a Residential Drug Abuse Program (RDAP) that allows those with stated alcohol or drug problems the ability to earn up to a year off their sentence. The documentation needed for evidence of abuse is that it needs to be stated in the presentence report, which is based on a self-disclosure during the presentence interview with U.S. Probation. If Ms. Holmes disclosed an alcohol or drug problem, she is eligible to participate in RDAP, which is also a First Step Act program, making her eligible for yet another year off of her sentence.
Breaking down the numbers, Ms. Holmes’ 135-months will be reduced by 20 months for Good Conduct time. She could then receive 24 months off through the combination of First Step Act and RDAP credits, assuming she qualifies for RDAP. Additional home confinement credits under the First Step Act, 20 months (595 days), and Second Chance Act, 6 months, will mean that Holmes could potentially leave prison November 30, 2028. Her 135-months could be reduced to 66 months at FPC Bryan with the remainder of the shortened sentence served on home confinement. It is a significant reduction in time behind bars.
The BOP is feeling more confident about moving prisoners to home confinement, rather than leaving them in prison. The agency realized great success with the CARES Act, enacted during the pandemic, which allowed the BOP to move health vulnerable prisoners, most of whom were minimum security, to home confinement. This had the added benefit of reducing prison populations to avoid contagion. The BOP transferred over 50,000 prisoners to home confinement during the program which ended in April 2023. Over 99% of those who were placed on home confinement successfully completed their term of confinement satisfactory and at a cost of less than half of what it costs to house prisoners in institutions.[3]
The First Step Act, which passed with over 80% support from both Republicans and Democrats, has begun to change the way the United States looks at incarceration. It will take years to see how the First Step Act will be fully implemented, but it shows a trend that there are alternatives to incarceration for minimum security prisoners.
Footnotes
[1] The author had no involvement in the Elizabeth Holmes case.
[2] To be eligible for First Step Act credits, the prisoner must have a minimum or low PATTERN (measure of recidivism and violence) score to get a reduction in sentence. However, all prisoners are eligible for First Step Act credits to be used toward prerelease custody (halfway house or home confinement) provided their underlying offense is not one precluded from applying those credits (there are 68 such excluded offenses, such as sex offenses and terrorism).
[3] Federal Register / Vol. 88, No. 64, [BOP Docket No. 1179; AG Order No. 5641– 2023] RIN 1120–AB79 Office of the Attorney General; Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, Tuesday, April 4, 2023.
Walter A. Pavlo, Jr. is a nationally recognized speaker who lectures on all aspects of white collar crime and federal law enforcement. In addition to speaking, Walt is the co-founder and president of Prisonology, an expert testimony, consulting, and training firm for issues on the Federal Bureau of Prisons.
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