Davis v. Warden Brief: Ensuring the Vitality of the First Step Act

Matthew Cavedon

The Bureau of Prisons has improperly interpreted the First Step Act of 2018 (“FSA”) to deny thousands of prisoners credits earned through rehabilitation programs, unlawfully extending their imprisonment, and frustrating Congress’s intent to reduce both federal prison costs and recidivism rates. To date, the cost of this mistake has easily reached half a billion dollars. Cato joined an amicus brief alongside the Due Process Institute, urging the Eighth Circuit to correct the Bureau’s error.

The FSA states that a prisoner is ineligible for such credits if they are “serving a sentence for a conviction under any of” sixty-eight enumerated offenses. When a prisoner, like Appellant Jeramy Davis, is serving consecutive sentences—one for a listed crime, one for an unlisted crime—the BOP treats the combined term as ineligible. This interpretation conflicts with the Act’s history, structure, and purpose in three ways.

First, BOP’s interpretation would forfeit roughly half a billion dollars in potential savings—savings that Congress explicitly sought in passing the FSA. Sentencing Commission data reveal that BOP’s approach denies credits to at least 2,000 prisoners annually who receive mixed eligible and ineligible sentences, squandering hundreds of millions in potential cost reductions.

Second, Congress also explicitly sought to reduce recidivism in passing the FSA. Individuals released under the FSA have significantly lower rates of recidivism, both compared to all people released from BOP facilities and compared to similarly situated individuals released prior to the FSA. BOP’s interpretation of the FSA thwarts congressional intent by denying recidivism-reduction programs to thousands of eligible individuals. 

Third, Congress built the FSA on state models that broadly permitted credit eligibility. The legislative record shows no intent to depart from these models, as BOP’s interpretation does.

Thus, the FSA is at minimum ambiguous about whether “serving a sentence for a conviction” applies to entire prison terms or to individual sentences. And because this ambiguity affects punishment length, the rule of lenity requires resolving it in Mr. Davis’s favor.