First Step Act implementation tweaks get closer to the law’s intent to send more people home earlier   

President Donald Trump’s signature federal prison reform legislation of 2018, the First Step Act (FSA), provided ways for people convicted of low-risk offenses to reenter society early by earning time credits off their sentence through participation in various programs. However, until October, the law was interpreted in a way that severely limited when and where individuals could earn these credits.

On Sept. 30, the federal Bureau of Prisons (BOP) made two amendments to its FSA regulations that expanded incarcerated people’s ability to earn early release. The amendments were triggered by a series of executive orders issued by Trump and guided by recent legal trends.

The first amendment removes language that set the start of the period when people could be eligible to earn time as their arrival at the prison to serve their sentence, rather than allowing people to earn time in advance while they are held pretrial and/or before being transferred to the designated institution. BOP did not derive this determination from the FSA itself. While this regulation was in effect, many people were held in custody for months at another location (such as in local jails or detention centers) and could not use that period to take programs to earn release time. Now, according to the guidelines, ‘‘[a]n eligible inmate begins earning FSA Time Credits after the inmate’s term of imprisonment commences.’’

According to the BOP, people convicted of federal crimes spend about two months outside their designated facility on average. Because they can now earn 10 to 15 days off their sentences for every 30 days of programming during that time, this revised rule would result in about 20 more days of time off their sentences. Because the new rule will affect an estimated 25,000 incarcerated people, the yearly savings to taxpayers of not having those individuals under correctional supervision will be in the range of $54 million, according to the BOP.

The second change to BOP regulations codifies the practice of allowing citizens who were convicted abroad and transferred to federal prisons in the U.S. to earn time credits toward early release. The impact of this change is small—only a few dozen Americans are transferred each year from countries with which transfer treaties exist, and the BOP says it had already been interpreting the law to allow these individuals to earn credit. Still, the rule change removes uncertainty and potential arbitrariness in BOP decision-making for this limited group. And, like the first change, this revision corrects the BOP’s practice of creating its own eligibility restrictions without direct reference to the First Step Act itself.

The BOP pursued these rule changes now—eight years after the enactment of the FSA—in direct response to a string of court losses over its interpretations of the law and Executive Order (E.O.) 14219. In that order, “Ensuring lawful governance and implementing the President’s ‘Department of Government Efficiency’s Deregulatory Initiative (DOGE),’” Trump mandated that heads of federal agencies review regulations to ensure they are based only on “the best reading of the underlying statutory authority.” 

This phrase, invoking a “best reading” of statutes, echoes the recent Supreme Court ruling in Loper Bright Enterprises v. Raimondo (2024). This ruling ended the so-called Chevron deference, a previous Supreme Court precedent that compelled federal courts to defer to a federal agency’s interpretation of an ambiguous or unclear statute Congress had delegated to the agency to administer. The end of Chevron deference could curb administrative overreach and authority creep. Courts no longer have to defer to agencies’ views of what a reasonable interpretation of an ambiguous law might be when those agencies design their regulatory interpretations of that law, therefore making such regulations more easily the subject of legal challenges.

The BOP rule changes were also guided by standing Trump-era regulatory review executive orders intended to curtail excessive or inappropriate regulations, including E.O. 14192, “Unleashing Prosperity Through Deregulation” (2025), and E.O. 14294, “Fighting Overcriminalization in Federal Regulations.” It is also guided by previous executive orders from former President Barack Obama, namely E.O. 13563, “Improving Regulation and Regulatory Review,” and from former President Bill Clinton, with E.O. 12866, “Regulatory Planning and Review.” Collectively, these executive orders emphasize agencies like the BOP operating through a cost/benefit framework, pushing them to choose the lowest-cost options to achieve a regulatory objective and to avoid criminalization through regulation.

It’s a valuable impulse to attempt to limit administrative power to aggressively and inappropriately interpret the laws written by Congress. These interpretations often lead to more bureaucracy and less freedom, and they wrest power away from the legislature and thus further from voters’ accountability. While “rule by executive order” should be approached with skepticism, E.O. 14219 was a legitimate way for the executive to nudge the BOP to bring its FSA regulations in line with Congress’s goals, while remaining mindful of costs and benefits to taxpayers. The FSA, the most significant federal criminal justice reform legislation in decades, has resulted in tens of thousands of incarcerated people earning earlier releases, with lowered rates of recidivism among those released. While legislation should ideally address the shortcomings that prevented the FSA from benefiting the broadest number of people, these two BOP rule changes, combined with the launch of a dedicated First Step Act Office this month, are executive-level tweaks that are a step in the right direction.

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