We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
HOME CONFINEMENT AUTHORITY AS ‘SHELFWARE’
Back in the days of the dinosaurs, when computer programs came on CD-ROMs or (even more antediluvian), on stacks of mini-floppies, many of us were familiar with the concept of “shelfware.”
Writing in Forbes last week, Walter Pavlo reminded us that the Federal Bureau of Prisons has its own version of “shelfware,” a provision in 18 USC § 3624(g)(3) that lets prisoners spend their First Step Act credits – days earned for successful completion of programming under 18 USC § 3632 – on sentence reduction, halfway house or home confinement.
When a prisoner has earned enough FSA credits to where his or her remaining sentence equals the number of FSA credits earned, § 3624(g) requires that the BOP use those credits for one or more of the three options provided. The BOP’s practice is to first apply credits to sentence reduction: up to 365 credits can be used to reduce a sentence by a like number of days. The BOP has been diligent about this, and prisoners have been able to watch their sentences shorten on a monthly basis as FSA credits are earned.
Once the sentence reduction has been maxed out at 365 days, the balance of the credits is to be applied to additional halfway house or home confinement. Pavlo points out that “[t]he First Step Act gives the BOP a lot of discretion to place prisoners in the least restrictive, and least costly, confinement.” While the BOP has sole discretion to decide what that confinement will be, but it must be one of the two.
A BOP decision to use its home confinement authority should be a no-brainer: The halfway houses are filled, causing prisoners to be denied the use of their credits despite their absolute statutory right to them. Home confinement, however, lacks the space limitations (at least not to the same degree).
Unsurprisingly, the BOP has left it home confinement authority on the shelf. As Pavlo observes, the BOP’s “interpretation of the First Step Act at every turn has been to minimize the use of the law to return prisoners to society sooner. The BOP has the law behind it to move thousands more prisoners into the community and to home confinement, if it only had the will to do so.”
Trust the BOP to mismanage things. Pavlo notes that
[p]risoners with 18 months of First Step Act toward prerelease custody should be sent directly to home confinement but they are languishing in halfway houses using resources they do not need. Other prisoners who are not First Step Act eligible and who have longer prison terms, are being passed over for placement in halfway houses in favor of those on First Step Act. The costs are now higher because a prisoner is staying in a higher security prison because there is no halfway house and a minimum security prisoner is stuck in a halfway house when they could be at home.
What he does not mention is that other prisoners entitled by law to the benefit of FSA credits they have earned are being denied halfway house placement because the places are full, in part with prisoners the BOP could move to home confinement.
The BOP could save money, too. When halfway houses monitor people on home confinement, it charges the BOP about half the cost of keeping them in halfway houses. According to the BOP, an inmate in home confinement cost an average of $55.26 per day as of 2020 —less than half the cost of an inmate in secure custody.
President-elect Donald Trump, as one of his plethora of promises made during the campaign, said he would slash federal spending. His disdain for anything related to the DOJ is well known. In a November 7 Forbes article, Pavlo said, “[L]ook for an unhappy Trump look for more ways to cut costs at the BOP. In 2018 when Trump made the cuts the BOP’s budget was $7.1 billion. The BOP has asked for $8.6 billion in FY2025 and another $3 billion to bring its facilities up to date. Spending at these levels is simply not going to happen.”
The BOP is required to let prisoners spend their FSA credits. It may be compelled by circumstances and budget to push FSA credit users, especially those who are minimum security and recidivism risk, to home confinement. Even now, doing so would make good sense, which leads commentators like Pavlo to wonder why the agency hasn’t done so.
Forbes, Bureau of Prisons Could Do More To Send People Home, Why Aren’t They? (October 30, 2024)
Dept of Justice, Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, 88 FR 19830 (April 4, 2023)
Forbes, The Bureau Of Prisons Under A Trump Administration (November 7, 2024)
– Thomas L. Root