My husband served 14 months under house arrest with no violations on his conditions of release. This was prior to him serving the sentence he is on now, which is 57 months in an FPC. Why is it that the time he served on house arrest prior to his actual incarceration cannot be used as time served already served? It was for the same violation, which is a first time non violent drug offense. He was allowed self surrender, as well. I have tried looking this up on the forums, but have been unable to find an answer. Thanks in advance for all your help.:)

If it was really "house arrest," where he could not leave except for work or Dr's appts, then you have a good question. What does his lawyer say?

You are either detained or released, pending trial. If you are release, no matter the conditions, you get no credit. I was detained, but the Judge ordered the Marshal to house me in a half-way house. I got credit.

Yes, he was on house arrest with an electronic monitoring bracelet, only allowed to leave for work, and approved appointments. His lawyer said that the government considers that a favor to you, to let you be on house arrest, and that they don't consider it in your sentencing or time served. I always felt like he was still in federal custody, while under house arrest, that it should count, but they said it didn't. I was just wondering if anyone else had any experience with that.

House arrest before sentencing is not credited toward the sentence. This issue has been aggressively litigating and the BOP always wins. This has always seemed unfair to me especially given the level of supervision and restriction. Brenda

Prior custody time credit is controlled by Title 18, United States Code, Section § 3585(b), and states,

"A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences--

(1) as a result of the offense for which the sentence was imposed; or

(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed;

that has not been credited against another sentence."

Now, one of the key words in the above statute is “OFFICIAL DETENTION”. "Official detention" has been defined by the Courts, and the BOP, as time spent under a federal detention order. This also includes time spent under a detention order when the court has recommended placement in a less secure environment or in a community based program as a condition of presentence detention, (This is what happened to the previous poster). Those defendants placed in a program and/or residence as a condition of detention are subject to removal and return to a more secure environment at the discretion of the Attorney General and the U.S. Marshals' Service, and further, they remain subject to prosecution for escape from detention for any unauthorized absence from the program/residence. Such a defendant is not eligible for any credits while released from detention.

The U.S. Supreme Court in Reno v. Koray, 115 S.Ct 2021 (1995), held that time spent under restrictive conditions of release (including time spent on home arrest, in a community treatment center (CCC) or similar facility) was not official detention entitling an inmate to prior custody time credit under 18 U.S.C. § 3585(b). The court found that the interaction of the Bail Reform Act and 18 U.S.C. § 3585(b) supported the Bureau of Prisons' interpretation that a defendant is either released (with no credit for time under conditions of release) or detained (with credit for time in official detention).

The Koray decision means, therefore, that time spent on home arrest, in residence in a CCC or similar facility as a result of a condition of bond, a condition of parole, probation or supervised release, is not creditable to the service of a subsequent sentence. In addition, a release condition that is "highly restrictive," and that includes "house arrest", "electronic monitoring" or "home confinement"; or such as requiring the defendant to report daily to the U.S. Marshal, U.S. Probation Service, or other person; is not considered as time in official detention. In short, under Koray, a defendant is not entitled to any time credit off the subsequent sentence, regardless of the severity or degree of restrictions, if such release was a condition of bond or release on own recognizance, or as a condition of parole, probation or supervised release.

So basically it really doesn't matter how restrictive things were for him. If he was released on bond, and as part of his "Conditions of Bond" were that he be placed on house arrest, with electroinic monitoring, etc... then it doesn't matter. He cannot get credit for this time. No matter how restrictive things were for him.

I hope this helps clarify things for you.

Let me know if I need to explain this any further. I'll do all that I can to help you understand the why's and wherefore's - if I can.

Take care

Greyghost

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Thanks so much for all the replies, Greyghost, you especially clarified this for me. I appreciate all of your help!:)